Category Archives E.D. Mo.

Plaintiffs may not avoid removal under CAFA by amending their complaint after removal to restrict the class to nondiverse individuals, held the court in Pudlowski v. The St. Louis Rams, LLC, No. 4:16-CV-189-RLW, 2016 WL 5660237 (E.D. Mo. Sep. 29, 2016). In Pudlowski, Plaintiffs sued the Rams in a Missouri state court under the Missouri Merchandising Practices Act (“MMPA”), alleging that the Rams mislead them about the team’s future location and thus caused them to buy tickets, merchandise, and concessions. Id. at *1. Defendants removed the case to federal court under CAFA, the District Court granted Plaintiffs’ motion to remand back to state court, and Defendants then appealed to the Eighth Circuit, which remanded to the Eastern District of Missouri, instructing the District Court to weigh two declarations from alleged class members. Id. at *2. Under CAFA, federal district courts have jurisdiction over class actions only if (among other requirements) there…

We know the general rule that a Missouri Merchandising Practices Act ("MMPA") plaintiff cannot merely allege some undefined loss: the loss must be ascertainable, meaning the plaintiff must state an actual amount or a method for calculating the amount. Now add a corollary principle: not only must the loss be ascertainable, but whatever that amount is, it must constitute a net loss when measuring the difference between the actual or reasonable value of the product or service and the amount that plaintiff paid. That’s the takeaway from Cregan v. Mortgage One Corp., No. 4:16 CV 387 RWS, 2016 WL 3072395, at *5 (E.D. Mo. June 1, 2016). In Cregan, plaintiffs entered into a loan agreement with defendant that encumbered their real property. Id. at *1. After plaintiffs filed for bankruptcy, defendant filed a notice of claim that included a charge for $56,000 in “daily simple interest” due, and plaintiffs claimed that the…

To state an omission-based MMPA claim in federal court, a plaintiff may not rely on generic allegations that a defendant failed to disclose an alleged product defect. Nor may a plaintiff rely on prior consumer complaints as the basis for alleging that a defendant concealed a material fact. That’s the lesson from Johnsen v. Honeywell International Inc., No. 4:14CV594 RLW, 2016 WL 1242545 (E.D. Mo. Mar. 29, 2016). In that case, plaintiff claimed that Honeywell’s representations about its humidifiers’ quality, along with a five-year warranty, amounted to an actionable “unfair practice” under the MMPA where the humidifiers allegedly broke down repeatedly. On March 29, 2016, the Eastern District of Missouri ruled on defendant Honeywell International’s Rule 12(b)(6) motion to dismiss plaintiff’s complaint, holding that bare allegations that defendants “knew, or reasonably should have known” that their products contained some defect and that they “concealed and failed to disclose such alleged…

In a very meta turn, Riceland Foods, Inc. found itself on the receiving end of a class action composed of class action firms and plaintiffs from the GMO Rice MDL overseen by Judge Catherine D. Perry of the USDC of the Eastern District of Missouri.  Riceland had been a co-defendant along with defendant Bayer in that litigation and had then cross-claimed Bayer and settled for $ 92 million.  Following the District Court’s orders awarding common benefit expenses and fees, three law firms that had incurred legal fees and expenses while performing class benefit work sought to certify a class representing not only other law firms but also clients who had paid for common benefit services and expenses.  The proposed class brought claims of unjust enrichment and quantum meruit against Riceland on the basis that Riceland had benefitted from the putative class’s common benefit work in obtaining a judgment against Bayer,…

Plaintiff fed his dog Beneful Healthy Weight dog food, and within two weeks, his dog was lethargic, incontinent, and hematuric (blood in urine).  The vet recommended a medicated dog food, and the symptoms disappeared. Plaintiff filed a putative class action under the Missouri Merchandising Practices Act (MMPA), alleging that Purina misrepresented its Beneful brand dog food as "healthy," "wholesome," "nutritious," and "100% Complete Nutrition," and failed to disclose that the dog food caused, or carried the risk of, illness and death in a significant number of dogs. Defendant moved to dismiss the complaint, based on Twombly and Rule (9b).  The Court granted the motion (with leave to amend). On Twombly grounds, the Court found that the Complaint failed to set for a plausible claim -- specifically there was no causation alleged: Nothing in the Complaint alleges that the veterinarian diagnosed the bladder stones because of the certain type of dog food…

Last week, the Eighth Circuit published its decision in Atwell v. Boston Scientific Corp., Nos. 13-8031, 13-8032, 13-8033, 2013 WL 6050762 (8th Cir. Nov. 18, 2013), where it held that three multiple-plaintiff actions alleging injury from transvaginal mesh collectively constituted a "mass action" under CAFA (the Class Action Fairness Act of 2005). Because of our firm's involvement in the case, we are going to direct you to the fine synopsis put together by the Drug & Device Law Blog.  Another comprehensive summary was published by Law360. We would also like to thank everyone who has read the blog during our first year of publication.  Have a great Thanksgiving!

Hutsler stands for the proposition that a significant lapse of time between (1) advertising and sale of merchandise and (2) an alleged unfair practice will make it difficult for a plaintiff to satisfy the statutory requirement that latter be “in connection with” the former. In 2001, plaintiffs refinanced their home with Wells Fargo. Eleven years passed. In 2012, due to financial difficulty, plaintiffs couldn't make their payments.  Well Fargo foreclosed on plaintiffs' home. Plaintiffs sued, claiming that Wells Fargo violated the MMPA “in connection with the sale of the property and/or mortgage loan” based on the way Wells Fargo handled the 2012 foreclosure (e.g., failing to provide plaintiffs with loss mitigation opportunities, foreclosing on plaintiffs' home without explanation as to why they did not qualify for mortgage assistance; and making plaintiffs wait before answering their telephone calls, and transferring plaintiffs' calls). Wells Fargo moved to dismiss the MMPA claim, arguing…

She needed new tires.  So she went to a Bridgestone tire shop. She was charged a “shop supplies fee” of $1.20, which appeared on the itemized initial estimate, as well as the final invoice. A sign posted in the store explained the purpose of this "shop supplies fee": TO OUR CUSTOMERS: A variety of shop supplies are consumed in servicing our customer's vehicles. Parts and labor necessary for servicing customer's vehicles are itemized on estimates and invoices. However, shop supplies (such as protective items for your vehicle, solvents, cleaners, rags, etc.) do not lend themselves to precise itemization. Therefore, on invoices greater than $30, an additional charge of 6% of the total labor amount, not to exceed $25 will be added to your invoice. This charge represents costs and profits.  Non-mandated disposal or recycling charges may also represent costs and profits. A lawsuit ensued.  Plaintiff sought certification of a class…

Cy pres - A French term for "ok, close enough" - can be tricky. The wrong has been righted, but either the class has been fully compensated, or the compensation is too de minimis or impractical to allocate and distribute. What to do? Give it away to charity, but not just any charity. This issue confronted the Court in In re Bank of America Corp. Sec. Litig., 2013 WL 3212514 (E.D. Mo., June 24, 2013). In that securities fraud MDL, the global settlement of $490,000,000.00 had been approved, and all class members had been paid. Yet, due to problems locating class members, duplicate payments, restitution, and interest, class counsel found themselves with $2,734,136.69 remaining in the kitty. This was even after the claim administrator had been caught embezzling $5,000,000.00 from the fund. Not a bad problem to have, but a problem nonetheless. After rejecting the motion of the claims administrator…

What happens when the hunter becomes the hunted? In General Credit Acceptance Corp. v. Deaver, 2013 WL 2420392 (E.D. Mo., June 3, 2013), the hunter remains in state court unless he realigns the parties prior to removal. In that case, GCAC filed a simple one-count petition for breach of a retail installment contract in St. Louis County, and got hit with a counterclaim seeking to certify a consumer class action under the UCC. GCAC promptly tried to get its head out of the bear trap by dismissing its breach of contract claim and removing the case to the Eastern District, using the class action counterclaim as a hook to assert removal jurisdiction under CAFA. While it is well-settled that a plaintiff may not remove a case to federal court based on a counterclaim, GCAC argued that it was only a nominal plaintiff and in reality a de facto defendant, having…

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