Category Archives D.Kansas

In an interesting opinion, United States District Judge Carlos Murguia disposed of Defendant Defenbaugh Disposal, Inc.’s Motion for Reconsideration which questioned compatibility of the District Court’s order certifying a class of consumers charged an “environmental/fuel charge” and an “administrative fee,” and a concurrent order denying summary judgment against the sole putative class representative based on the voluntary payment doctrine.  Defenbaugh naturally questioned, among other less ripe issues, how the District Court could junk their summary judgment motion against Whitton as being too “heavily fact-dependent” to adjudicate at the summary judgment stage while concurrently certifying a class action.  In his order denying reconsideration, Judge Murguia defended his orders as compatible because the summary judgment issue was decided only with respect to the putative class representative, Mr. Whitton, “meaning that only Mr. Whitton’s actions or knowledge were relevant to defendants’ motion for summary judgment,” while “predominance is analyzed in terms of all…

Here's an interesting order from the District of Kansas that was published right before the Thanksgiving holiday that demonstrates how a proposed class settlement can get denied not once, but twice, if counsel does not adequately represent all members of the putative absent class. In Better v. YRC Worldwide, No. 11-2072-KHV, 2013 WL 6060952 (D. Kan. Nov. 18, 2013), the parties were before the court for a second time for preliminary approval of a securities class action settlement. While the court initially denied approval because plaintiffs failed to satisfy the Rule 23 requirements of typicality and adequacy, it appears the parties did not sufficiently address these deficiencies the second time around. Specifically, the court identified three areas where the parties failed to protect the interests of the putative class: First, approval was denied because the Court found that the proposed settlement failed to provide any benefit to certain class members while requiring…

For those who don't opt in until the class is conditionally certified, that's who.  In Greenstein v. Meredith Corp., 2013 WL 4028732 (D. Kan., Aug. 7, 2013), class counsel asked the District Court to equitably toll the limitations period for the eleven-month period from the time plaintiffs' motion for conditional certification was filed, and the time it was granted. Normally in FLSA cases the limitations period is not tolled until the class member opts into the conditionally certified class. Plaintiff argued that the long delay in resolving conditional certification justified equitable tolling. Judge Rogers disagreed, explaining that although the Tenth Circuit has not addressed the issue of equitable tolling in the context of an FLSA class, it usually applies that doctrine restrictively only where the defendant has actively misled the plaintiff respecting the cause of action, or in other extraordinary circumstances. Judge Rogers also determined that the factors applied by…

In an interesting case of first impression, the District Court of Kansas held that the United States Supreme Court's recent decision in Genesis HealthCare Corp. v. Symczk, 133 S.Ct. 1523 (2013) (which we discussed back in April), does not allow defendants to moot an FLSA claim by making an offer of judgment to a representative plaintiff pursuant to Fed. R. Civ. P. 68.  In Michaels v. City of McPherson, Kansas, 2013 WL 3895343 (D. Kan., July 29, 2013), the City/Defendant served an offer of judgment on the lone plaintiff asserting an FLSA claim while the motion for conditional certification was pending (and of course before any class members were able to opt into the class).  The Defendant then opposed Plaintiff's motion to amend the complaint to add a new representative plaintiff on the grounds that amendment was futile, asserting that the offer of judgment mooted the Plaintiff's claims under Genesis…

To remove a case under CAFA, we all know that a defendant must establish that the amount in controversy exceeds $5 million exclusive of interest and costs (plus there must be minimal diversity and at least 100 putative class members). What are some other tips for preparing the notice of removal under CAFA in the District of Kansas? Develop the necessary jurisdictional facts.  There are several methods for developing the factual allegations to include in the notice of removal, including: by contentions, interrogatories, or admissions obtained in state court prior to removal by calculation from the allegations in plaintiff's complaint by reference to plaintiff's informal estimates or settlement demands by introducing affidavits about how much it would cost to satisfy plaintiff's demands See Frederick v. Hartford Underwriters Ins. Co., 683 F. 3d 1242, 1247 (10th Cir. 2012). Put them in the notice of removal. The District of Kansas recently held that…

Judge Vratil's order in Gambrell v. Weber Carpet, Inc., 2013 WL 1659591 (D. Kan. April 17, 2013), stands in stark contrast to the Missouri Supreme Court's recent analysis on class counsel fees. In this case, Judge Vratil ultimately approved an award of fees to class counsel in this FLSA settlement, but did so in a manner likely to haunt class counsel for years. The Court had overruled the parties' first motion to approve the proposed FLSA settlement because the parties had submitted it in camera. The Court overruled the second attempt at approval for failing to provide sufficient information needed to support the key findings (such as whether the proposed settlement was fair, reasonable and adequate). At this point, class counsel was undeterred by the Court's stated skepticism of their request for $40,375.00 in fees for a $14,000 settlement. The third attempt at approval failed for lack of supporting information…

When a claim appears doomed by the statute of limitations, some plaintiffs reach for the pipe, American Pipe that is. Under the American Pipe tolling doctrine, the commencement of a class action tolls the limitation period for claims later brought by absent class members.  In practice, this means an absent class member may pursue an individual action if class certification is denied without worrying about whether the limitations period is blown. But will American Pipe toll the limitations period if the named plaintiff in the class action does not (or did not) have standing to assert the particular claim in the individual action brought by the absentee class member? The Tenth Circuit hasn't addressed this question.  But Judge Lungstrum recently did, and answered it "yes" --- adopting the majority rule that the named plaintiff's standing is not necessarily required for American Pipe tolling. Nat'l Credit Union Admin. Bd. v. Credit…

In Hull v. Viega, Inc., 2013 WL 759376 (D. Kan., Feb. 27, 2013), Judge Robinson found herself addressing more questions than she was able to answer. One question she did answer was the timeliness of the Defendants' Motion to Strike the class allegations. This putative class action asserted claims on behalf of owners of homes and buildings with Defendants' brass fittings, and those who had paid for repairs or damages caused by these allegedly defective brass fittings, seeking damages under various states' deceptive trade practices acts, as well as under various common law claims. Defendants raised twenty questions in their Motion to Dismiss, which the Court described as a "scorched earth approach" that was both "multi-layered" and "dismissive" in that it required the Court to independently research various nuances of Nevada law. Defendants' Reply also incorporated rulings and raised new issues from a recent order in parallel action pending in…

In this case, Judge Murguia made it clear that a plaintiff seeking to certify a FLSA class need not plead either the number of hours worked, or the amount of uncompensated overtime, so long as the complaint makes clear from the context the grounds upon which the claim rests.  Noting a split in the federal courts on this issue, Judge Murguia denied a motion to dismiss and held that Rule 8(a) was satisfied without any particular quantification so long as the complaint in issue made clear that the alleged FLSA violation was based on requiring the putative class representative and the class to perform certain tasks before and after their shifts without compensation.

There are many ways to give notice to class members, but the notice must be "the best notice that is practicable under the circumstances."  Fed. R. Civ. P. 23(c)(2)(B).  If you can identify class members through reasonable effort, you must give them individual notice.  If you can't, then publication notice may be an option. No matter the method of notice chosen, to pass muster under the Due Process Clause, the method must be  "reasonably certain" to inform the class members.  Mullane v. Cent. Hanover Back & Trust Co., 339 Us.S. 306, 315 (1950). Which is why Judge Vratil rejected Plaintiffs' class-notice plan, which would have used an exclusively web-based notice (Internet banner ads, to be precise) to give notice to class members in states where at least 75 percent of the target population has Internet access according the 2012 U.S. Census.  In re Motor Fuel Temperature Sales Practices Litigation (MDL…

12
Close