Posts By Melissa Plunkett

Not quite the wrecking ball some hoped it would be, this week’s Supreme Court decision in Spokeo v. Robins created a crack just wide enough to allow a new wave of Article III standing arguments in private actions for statutory violations. As we discussed in our earlier post, Spokeo is a website that provides users with information about other individuals, including contact data, age, occupation, economic health, and wealth level.  The plaintiff, Thomas Robins, alleged willful violation of the Fair Credit Reporting Act (FCRA) because Spokeo’s website described him inaccurately—as a married 50-year-old, with children, and a high income.  None of the information was correct.  Robins alleged that the inaccurate information injured him when he searched for employment because potential employers saw him as someone who would expect a higher income and likely would be unwilling to relocate.  The district court dismissed the case for lack of Article III standing;…

After the district court certified a class comprised of customers who had contracted with Cox Enterprises for cable services, Cox sought to compel arbitration pursuant to clauses in class members’ contracts.  That bid was frozen in its tracks by the district court and icily affirmed by the Tenth Circuit.  The Court’s holding?  A class-action defendant with a potential arbitration defense can’t hold it back anymore, at least when the issue could impact the propriety of class certification.  In re Cox Enterprises, Inc. Set-Top Cable Television Box Antitrust Litig., No. 14-6158 (10th Cir. June 24, 2015). In particular, the Tenth Circuit emphasized that 87% of class members were potentially subject to arbitration, which undermined the district court’s findings of numerosity and predominance.  Accordingly, Cox’s conceal-don’t-feel-don’t-let-them-know approach amounted to an inequitable second bite at the apple.  The court explained that arbitration should be raised as early as possible, rather than for the…

Some may say that daily print newspapers are a dying breed.  Not Plaintiffs in O’Shaughnessy v. Cypress Media, L.L.C., No. 4:13-CV-0947-DGK, 2015 WL 4197789, (W.D. Mo. July 13, 2015), who attempted to certify a class action for their newspaper delivery service cut short. But Plaintiffs’ hopes for a certified class certainly died after a recent order issued by Judge Kays reporting on the numerous ways in which Plaintiffs failed to prove that their class should be certified. Cypress publishes three newspapers, the Kansas City Star, the Fort Worth Star-Telegram, and the Belleville News-Democrat, in Missouri, Texas, and Illinois, respectively, and has hundreds of thousands of subscribers.  As part of its newspaper delivery, Cypress would deliver premium editions for holidays, special events, or elections.  As the name premium denotes, those editions were charged at a higher rate.  For some subscribers, Cypress would charge for the premium addition by shortening the subscriber’s…

Everybody’s talkin’ all this stuff about LLCs. Well, not exactly, but the Tenth Circuit is talking about LLC citizenship. Joining the chorus of every other circuit court to consider the issue, the Tenth Circuit recently held that citizenship of an unincorporated association (e.g., an LLC) for removal-diversity purposes is to be determined by reference to the citizenship of each of its members. See Siloam Springs Hotel, L.L.C. v. Century Sur. Co., No. 14-6119, 2015 WL 1430335 (10th Cir. Mar. 31, 2015). Were this a class action, the result would be different. For purposes of CAFA, said the Court in footnote 1, an LLC’s citizenship for removal-diversity purposes is determined in the same manner as a corporation—by its state of organization and principal place of business. Why the different result under CAFA? As the Tenth Circuit put it: Not my prerogative. The prerogative to expand the established citizenship rule for corporations…

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