Posts By Gregory Wu

Last week, the Supreme Court issued its opinion in Tyson Foods v. Bouaphakeo, No. 14-1146 (March 22, 2016), a closely watched case out of the 8th Circuit that presented two meaty issues relevant to class action practitioners: 1) whether a plaintiff can use statistical sampling to establish class-wide liability, aka "Trial-by-Formula"; and 2) whether a certified class can include uninjured claimants.  In its opinion affirming both class certification and the trial verdict, the Court did not make any broad pronouncements on the use of statistical evidence in classwide proceedings, but instead took a more measured approach on when such evidence may be used.  Our thoughts on the opinion are below. On the use of statistical evidence, Justice Kennedy, writing for the majority observed that "[a] categorical exclusion of that sort, however, would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability."  Instead, whether and when…

Earlier this year, SHB welcomed the addition of complex litigation boutique Grippo & Elden in Chicago.  We were thrilled at the news because of the deep bench of experienced class action lawyers that were joining our firm, extending our presence and expertise to the Windy City.  One of the talented lawyers in our Chicago office, Chris Wray (a former 8th Circuit clerk to the Honorable Duane Benton), tipped us off about a recent decision from the Seventh Circuit may have created a circuit split on the implicit requirement of ascertainability of Rule 23.  He was kind enough to put together the following guest post: Several circuits have recognized an implicit requirement under Rule 23 that a class must be defined clearly and that membership be defined by objective criteria. In addressing this requirement, courts have sometimes used the term “ascertainability.”  Class definitions have failed this requirement when they were too vague or subjective,…

In Perras v. H&R Block, No. 14-2892 (8th Cir. June 18, 2015), the Eighth Circuit issued an opinion regarding an issue that has yet to be addressed by the Missouri Supreme Court - to what extent does the Missouri Merchandising Practices Act (MMPA) apply to transactions outside of the state? In 2011, the IRS promulgated new regulations requiring tax professionals, at their own cost, to pass a certification exam and obtain a tax-preparer ID number before being authorized to submit federal tax returns.  H&R Block, the Kansas City-based "world largest tax services provider," decided to pass this cost onto its customers in the form of a nominal "Tax Preparer Compliance Fee." California resident Ronald Perras paid for his local H&R Block office to prepare his taxes in 2011 and 2012.  He subsequently sued the company in a Missouri federal court under the MMPA seeking to represent a nationwide class (with the exception of Missouri) based…

Following its grant of certiorari in Spokeo v. Robbins earlier this year, the United States Supreme Court has granted cert in yet another class action for the upcoming Fall Term that may have wide-ranging implications in the class action arena, particularly the wage-and-hour litigation. In Tyson Foods, Inc. v. Bouaphakeo, the Eighth Circuit recently affirmed the district court's decision to certify a class of hourly employees at a Tyson meat-processing facility in Iowa.  The plaintiffs alleged Tyson failed to provide FLSA overtime compensation for donning and doffing (putting on and taking off) protective gear before their shift formally started.  Although Tyson argued that there were significant factual differences between the workers in the putative class, the district court certified the case based on the plaintiffs' proposed statistical analysis calculating the “average” time spent donning and doffing the protective equipment, notwithstanding any employee’s actual individualized and personal circumstances.  The case was tried, ultimately resulting in a…

In 2009, Robert Eaton purchased a manufactured home from CMH.  The purchase contract contained a clause required Mr. Eaton to arbitrate all claims for any dispute arising out of the purchase of the home, but contained a clause that specifically reserved the right for CMH to pursue a lawsuit in court to foreclose upon any collateral, to obtain a monetary judgment, or to enforce the security agreement. Furthermore, this reserve clause contained “anti-waiver” language that stated CMH’s right to bring such a lawsuit did not constitute a waiver to compel arbitration regarding any other dispute related to the contract. Several years later, Mr. Eaton filed suit in Lincoln County circuit court, alleging that his manufactured home was defective and that CMH misrepresented the home as new at the time of sale.  CMH moved to dismiss and compel arbitration pursuant to the sale contract, but the trial court overruled CMH's motion to compel arbitration. The…

As we discussed back in 2013, the United States Supreme Court's decision in Comcast left no doubt that any damages model offered up by the proponent of class certification must “be consistent with its liability case.”   This ruling put some teeth into the damages element in the class certification context, and strongly implied that the requirements of Daubert or Frye apply at the class certification stage.  This month, the Third Circuit joined the Seventh, Eighth, and Ninth Circuits have all agreed that the Daubert admissibility standard must be taken into account when assessing admissibility of expert testimony at the class certification stage. Now, of course, this is only useful if one’s jurisdiction actually sets some parameters on the admissibility of expert testimony.  Missouri courts, however, follow Mo. Rev. Stat. 490.065, which is somewhat general in its standards, and does not follow either Daubert or Frye in civil matters, relying instead…

Although this blog is focused on highlighting recent orders and opinions from courts within the 8th and 10th Circuit, there are countless others from courts around the country that will inevitably impact and influence class action jurisprudence.  Law360 published the "6 Recent Class Cert. Rulings Every Litigator Needs To Know," a nice compilation of recent rulings that may affect your practice (of course, none were from the 8th and 10th Circuit - otherwise you would have already heard about it here!). In addition to the cases highlighted in the Law360 article, Andrew Trask of Class Action Countermeasures also published "The Ten Most Significant Class Action Cases of 2014," a nice summation of impactful cases from the last year.

Emphasizing the individualized nature of each putative class member’s experience, Judge Ortrie Smith denied the plaintiffs’ motion for class certification in Combs v. The Cordish Companies et al., No. 14-0227, 2015 WL 438154 (W.D. Mo. Feb. 3, 2015). Alleging that the defendants unlawfully limited their access to Kansas City’s popular Power and Light District, the plaintiffs brought suit under 42 U.S.C. § 1981 and sought to certify a class comprised of all persons of African-American descent who were “excluded, ejected, harassed, or suffered other discriminatory treatment” at the hands of the defendants. In denying class certification, Judge Smith homed in on the need for detailed and individual factual inquiries. In particular, he focused on the fact that putative class members would have to prove more than that the defendants intended to discriminate against them – they would also have to demonstrate that they were in fact victims of discrimination. This,…

Do consumers who buy kosher products for non-religious reasons have a legitimate "beef" with the manufacturer if the product turns out not to be kosher? In Wallace v. ConAgra Foods, Inc., 747 F.3d 1025 (8th Cir. 2014) the plaintiffs brought a putative nationwide class action alleging that food-industry conglomerate ConAgra violated various consumer protection laws by labeling their Hebrew National franks (hot dogs) as “Made with Premium Cuts of 100% Kosher Beef.” The plaintiffs alleged that the kosher inspection process was "defective and unreliable" because of the company's manufacturing quotas.  The district court granted ConAgra's motion to dismiss based on a lack of subject matter jurisdiction, agreeing that the plaintiff's claims were "barred"  because "the determination of whether a product is in fact 'kosher' [is] intrinsically religious in nature." Id. at 1028. The 8th Circuit, however, disagreed and vacated the district court's dismissal because it held that the plaintiffs actually lacked Article III standing,…

If there is one topic that has captured the attention of federal courts around the country in the past few years, it's the applicability of mandatory arbitration in putative class actions. (Indeed, during our humble blog's brief existence, we have covered the issue numerous times, most notably here, here and here).  A recent decision from the Tenth Circuit may provide the most entertaining and candid examination of the procedure district courts should take in answering that question. In Howard v. Ferrellgas Partners, L.P., Case No. 13-3061, 2014 WL 1363963 (10th Cir. Apr. 8, 2014), the court admonished all parties involved when it reversed an order from the District of Kansas denying arbitration after a year and a half of discovery on the issue of whether arbitration even applied to the parties dispute.  The time spent on discovery appeared to baffle Judge Gorsuch, who writing for the court, noted that the case seemed to…

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