Category Archives Judge Fleissig

In City of Maryland Heights v. Trafcone Wireless, Inc., 2013 WL 791866 (E.D. Mo., March 4, 2013), Judge Fleissig declined to exercise CAFA jurisdiction over a case in which a putative class of Missouri municipalities sought declaratory and injunctive relief against a telephone service provider based on its alleged failure to pay certain business licensing taxes. Without reaching the issue of whether the requirements of CAFA removal had been met, the District Court relied on principles of federalism and comity identified in Levin v. Commerce Energy, Inc., 130 S. Ct. 2323, 2331 (2010), to decline to exercise jurisdiction. In Levin, the United States Supreme Court had resolved a circuit split to determine that principles of federalism and comity required federal abstention in certain tax cases beyond the Tax Injunction Act, 28 U.S.C. Section 1341, which prohibits federal courts from issuing injunctions that would enjoin or suspend state taxes, or entertaining…

In Critchfield Physical Therapy, P.C., v. Techhealth, Inc., 2013 WL 791860 (E.D. Mo., March 4, 2013), Judge Fleissig split the difference in this class discovery dispute. Plaintiffs in this putative TCPA class action had moved to compel both the production of full, unredacted lists of fax recipients (including names, addresses, and contact information) in their native format, as well as mirror images of the Defendant's hard drives. The District Court ordered production of the unredacted fax recipient lists subject to a mutually agreeable protective order, reasoning that this information was not only relevant to the merits issue of whether a prior business relationship existed, but also to the class issue of whether all class members were similarly situated with the plaintiff with respect to this defense (i.e., presumably typicality and predominance). And though the District Court declined to order the Defendant to produce a mirror of its hard drives at…

In a brief, but useful order, Judge Fleissig denied a motion to quash a subpoena and for sanctions asserted by counsel characterized as a “professional objector.”   Class counsel for a class action pending in the United States District Court for the Central District of California had served a subpoena on the Law Office of Jonathan E. Fortman, LLC, which represented an objector to the proposed class settlement.  The subpoena instructed Fortman/Movant to attend a deposition and produce documents related to: 1) The filing of the objection in the underlying action; (2) Any objections filed in state or federal court by Movant to other class action settlements; (3) Any fee sharing arrangements between Movant and its clients in relation to the current and other objections; and (4) Any settlements or payouts Movant received in return for withdrawing a client's objection or appeal. Fortman asserted “outrage,” moved to quash, and sought fees…

“An ascertainable loss of money or property” is an essential element of a cause of action brought under the Missouri Merchandising Practices Act. But what if something is free and doesn't perform as advertised? In Grawitch v. Charter Communications, Inc., 2013 WL 253534 (E.D. Mo. Jan. 23, 2013), an internet-service provider offered its existing customers a free upgrade: faster internet service ("with download speeds of up to 30 MBPS") at no additional charge.  But to enjoy the faster internet service, customers would need to upgrade their modems (available only from the ISP).  According to plaintiffs, those upgraded modems weren't capable of download speeds of up to 30 MBPS. Plaintiffs brought a class action under the MMPA, alleging a loss of money to Plaintiffs: “specifically, the difference in the cost and value of the service they paid for, and the useable service they received.” Is that an "ascertainable loss" under the…

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