Posts By Molly Carella

CAFA provides for federal jurisdiction over class actions if the amount “in controversy” exceeds $5 million. This is not always a complicated exercise, with the calculation often resting on the total potential number of class members multiplied by the amount of individual damages.  But what about when the class definition requires an additional, fact-intensive inquiry, thus realistically reducing the actual number of class members—and, as a result, the total amount of damages truly “in controversy”?  The Tenth Circuit faced this question in Hammond v. Stamps.com, 844 F.3d 909 (10th Cir. 2016), concluding in a published opinion that the total “conceivab[le]” damages are what matters, not what the plaintiff will likely be able to prove. For a $15.99 monthly fee, Stamps.com allows subscribers to print postage from home. According to Ms. Hammond, the site fails to adequately disclose the subscription charges, leading her to erroneously believe that she would only be…

The Eighth Circuit upheld a class settlement over the objections of six of the twenty-three class representatives.  The case involved a settlement among the NFL and nearly 25,000 former NFL players over the use of the players’ likenesses and identities, and it provided class members with two benefits: (1) the establishment and $42 million funding of the Common Good Entity, a non-profit organization charged with disbursing the money to charitable organizations or health and welfare organizations for the benefit of class members; and (2) the establishment of the Licensing Agency intended to assist class members with marketing their publicity rights.  Marshall et al. v. Nat’l Football League, No. 13-3581 (8th Cir. May 21, 2015). At the outset, the Court tackled the question of whether the settlement benefits were appropriate given constraints on certain cy pres distributions.  The Court emphasized that the Licensing Agency provided class members with a direct benefit,…

In a decision emphasizing the continuing viability of medical-monitoring class actions, the Missouri Court of Appeals clarified plaintiffs’ burden of proof at the class-certification stage by holding that the trial court may not consider expert testimony or other evidence that contradicts the plaintiffs’ theory of the case. In Elsea v. U.S. Engineering Company, No. 77687 (Mo. App. W.D. Mar. 17, 2015), the plaintiffs sought certification under Mo. Rule 52.08(b)(3) (the state-law counterpart to Rule 23(b)(3)) of a class of individuals who had spent two consecutive weeks or eighty hours in the Jackson County Courthouse after the defendants had performed a retrofit of the building.  According to the plaintiffs’ allegations and experts, asbestos dust was blown and tracked through the courthouse during the retrofit, putting putative class members at a significantly increased risk for latent disease.  The plaintiffs sought recovery of compensatory damages for the expense of necessary prospective medical monitoring. Following…

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