Category Archives Merits/Class Issues

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…

The United States Supreme Court’s opinion in Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, 2013 WL 691001 (U.S., Feb. 27, 2013), presents a fascinating theoretical dilemma, but one with limited application beyond securities law.  Justice Scalia’s assertion in his dissent that Justice Ginsberg’s majority opinion expands the consequences of the Basic decision from “regrettable” to “arguably disastrous” may be an overstatement beyond the context of securities law.  The issue in this case was whether the proponent of certifying a securities class action under § 10(b) of the SEC Act of 1934 and SEC Rule 10b-5 is required to prove the element of materiality at the class certification stage.  The majority held that it did not, because materiality, while an element of the fraud on the market theory applicable to securities claims, was a merits issue.  This is of course not surprising, as courts have long been warned away…

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