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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…

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…

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…

You might have been LED to believe that the Supreme Court has short-circuited the ability of plaintiffs to certify classes under Rule 23 based on the polarizing opinions this term, despite the continued surge of class action filings around the country.  Bad puns aside, there are still classes being certified at the district court level, which may evidence a growing resistance to SCOTUS's strict interpretations of Rule 23 (sorry, couldn't help myself).  For example, in Barfield v. Sho-Me Power Elec. Coop.., No. 11-cv-04321, 2013 WL 3872181 (W.D. Mo. July 25, 2013), Judge Laughrey of the U.S. District Court for the Western District, recently discussed the impact of individual damage inquiries when certifying a class of thousands of Missouri landowners against an electric cooperative for allegedly exceeding the scope of easements granted for power lines. Here, the defendant, a local electric cooperative, had valid easements to transmit electricity over the properties owned by the named…

In a pair of decisions, the Tenth Circuit this week decertified two class actions involving gas-well owners in Kansas and Oklahoma who claimed they were underpaid royalties owed by XTO, a company that buys and produces gas from wells.  The pair of decisions illustrates that commonality is getting more scrutiny after Dukes. The dispute centered on IDM, the implied duty of marketability.  In many states - including Kansas and Oklahoma – there is an implied duty of marketability in gas leases.  That duty requires the lessee to bear the full cost of making the gas marketable (i.e. gathering, compressing, and processing the gas into a marketable product).  So, once a gas-well lessor and a lessee agree on a royalty to be paid per unit of gas, then the lessee must bear the full costs of making the gas marketable and may not deduct those costs from the agreed-upon royalty. In…

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