Category Archives 8th Circuit

The United States Supreme Court today ended the controversial tactic of self-inflicted finality, wherein a class action plaintiff that has been denied certification and denied 23f review creates its own “final judgment” by voluntarily dismissing its own case, while reserving the right to appeal the denial of class certification. https://www.supremecourt.gov/opinions/16pdf/15-457_6j37.pdf In Microsoft Corp. v. Baker, the Supreme held that this gambit violates the carefully-calibrated principle of finality set out in the federal statutory review structure, composed of 28 U.S.C. 1291 (review of final decisions), 1292(b) (interlocutory review), and Fed. R. Civ. P. 23(f) (review of class certification decisions):   “We hold that the voluntary dismissal essayed by respondents does not qualify as a ‘final decision’ within the compass of 1291.  The tactic would undermine S 1291’s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f) put in place for immediate review of class…

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…

When movies, politics, the TCPA, and Article III standing come together, the results are magic.  This happened recently in Golan v. Veritas Entertainment, LLC, et al, in which the Eighth Circuit Court of Appeals told us some things about the TCPA and Article III standing, and Mike Huckabee told us about a very special movie.  Ron and Dorit Golan were enjoying a peaceful evening at home when they received the following mysterious message on their answering machine (yes, some people still have answering machines, apparently): "Liberty.  This is a public survey call.  We may call back later."  The Golans, who were on the no-call list, did what any of us would do: they hired legal counsel, sued, and tried to certify a TCPA class. By way of background, the mysterious patriot on the other end of the line was Governor Mike Huckabee, who had been hired as a "celebrity" voice…

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…

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…

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,…

We all know that each defendant must consent to removal, which is easy when one or a couple of defendants are in the case.  But what do you do when the plaintiff has sued everyone under the sun and the clock is ticking?   Talk about a logistical nightmare. In Griffioen (no, that's not as typo - that's how the plaintiff spells his name), the plaintiffs in this putative class action sued a lot of entities, including some railroads, some corporations, some individuals, and some municipalities, over flood damage.  The theories and allegations aren't terribly important.  What is interesting is that certain defendants sought to remove the case to federal court, and while most of the defendants either signed the notice of removal or filed their own written indication of consent, some did not.  Instead, the removing defendants represented in their notice of removal that they had contacted counsel for…

Here's a quick refresher (plus a lesson) on CAFA's local-controversy exception: a district court must decline jurisdiction when more than two-thirds of the proposed class members are citizens of the state in which the action was filed.  The two-thirds is determined as of the date of the filing of the complaint.  The party seeking remand (typically the class representative / plaintiff) has the burden of proving the exception applies. So what's the lesson? You cannot prove citizenship using solely a putative class member's last-known address.  Residency does not establish citizenship - i.e. the fact that a class member has (or once had) a residential address in Missouri does not mean that person is a citizen of Missouri. So how may class representatives meet their burden to prove CAFA's local-controversy exception?  Two ways: submit affidavit evidence or statistically significant surveys showing two-thirds of the class members are local citizens, or redefine the class as only…

12
Close