Posts By Brent Dwerlkotte

In a so-called “slack-fill” case, Judge Laughrey issued an opinion denying Hershey Company’s motion to dismiss a putative class’s MMPA and unjust enrichment claims, which involve allegations that Reese's Pieces and Whoppers candy boxes improperly suggest that they contain more product than they actually do.  According to the opinion, consumers average a whopping 13 seconds making in-store purchasing decisions, further supporting the plaintiff’s contention that consumers attach significant importance to the size of candy boxes, and that he was misled to believe that he was purchasing more product than he actually received. The court rejected Hershey's argument that the MMPA claim was not plausible, reasoning that the MMPA has been interpreted as "cover[ing] every unfair practice imaginable and every unfairness. . . ."  What's more, a "plaintiff need not even allege or prove reliance on an unlawful practice to state a claim under the act."  Judge Laughrey concluded that the plaintiff…

On June 18, 2015, the Eighth Circuit decided another class action case involving Missouri borrowers who took out second mortgages on their homes and alleged that various assignees and purchasers violated the Missouri Second Mortgage Loan Act (“MSMLA”) by charging and collecting impermissible fees.  See Wong v. Wells Fargo Bank N.A. et. al., Case No. 14-1921 (8th Cir. June 18, 2015).  The plaintiffs had obtained their second mortgage loans on their homes through Bann-Corr. Like in Thomas, Bann-Cor executed the loan agreements but then sold or assigned the loans and accompanying liens to various purchasers and assignees, the defendants in the action. The plaintiffs alleged that defendants either directly or indirectly charged or received fees in the transactions that were impermissible under the MSMLA. Although the district court resolved many motions on various topics, the district court’s granting of a motion to dismiss on Article III standing grounds is relevant…

In Thomas v. U.S. Bank National Association et al., No. 14-2265 (8th Cir. June 18, 2015), the Eighth Circuit affirmed the district court’s order dismissing a putative class action that alleged the defendants violated the Missouri Second Mortgage Loan Act (“MSMLA”) by charging and collecting impermissible fees in connection with plaintiffs’ principal loan amount. The plaintiffs alleged that they represented some 1,600 Missouri homeowners who obtained a second mortgage from FirstPlus (a now-defunct company).  After issuing loans, FirstPlus sold and assigned the loans and second mortgages to a myriad of different entities who constituted the defendant class in the case. The district court dismissed the case after concluding that the three-year statute of limitations applied to the MSMLA claims and that class action tolling principles did not save the class. This case was but one in a long line of cases against various institutions for allegedly charging and collecting fees…

On January 13, 2014, the Eighth Circuit overturned, on interlocutory appeal pursuant to Fed. R. Civ. P. 23(f), a district court’s order certifying four classes of Nebraska consumers, who alleged that Credit Management Services Inc. ("CMS") and its in-house counsel violated the Fair Debt Collection Practices Act. This is notable not only for the fact that the Eighth Circuit granted review. Writing for the panel, Judge Loken revoked the district court’s certification order, finding that the district court abused its discretion in certifying the class without conducing a "rigorous analysis . . . of what the parties move prove” and that Rule 23 requires. The plaintiffs alleged that CMS and four in-house lawyers violated the FDCPA, by sending standard-form collection complaints and discovery requests. Plaintiffs alleged that the standard-form pleadings violated various provisions of the FDCPA, making them unfair or deceptive or practices that also violate Nebraska consumer protection laws.…

The United States Supreme Court held on Monday that a defendant seeking removal under CAFA need only allege the jurisdictional amount in its notice of removal.  Gone are the days when a defendant must quickly muster an affidavit or other evidence to include in a notice of removal to prove the jurisdictional amount-in-controversy under CAFA. This case began when the District of Kansas remanded back to state court a class action concerning allegedly deficient royalty payments.  See Owens v. Dart Cherokee Basin Operating Co., No. 12-4157, 2013 WL 2237740 (D. Kan. May 21, 2013).  (We covered the history of this case here and here).  In Dart’s removal papers, it stated that the three requirements of CAFA had been met, and more specifically with regard to the amount-in-controversy, Dart stated the putative class members’ claims totaled more than $8.2 million.  Owens moved to remand the case to state court, asserting that…

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