Category Archives Predominance

Some may say that daily print newspapers are a dying breed.  Not Plaintiffs in O’Shaughnessy v. Cypress Media, L.L.C., No. 4:13-CV-0947-DGK, 2015 WL 4197789, (W.D. Mo. July 13, 2015), who attempted to certify a class action for their newspaper delivery service cut short. But Plaintiffs’ hopes for a certified class certainly died after a recent order issued by Judge Kays reporting on the numerous ways in which Plaintiffs failed to prove that their class should be certified. Cypress publishes three newspapers, the Kansas City Star, the Fort Worth Star-Telegram, and the Belleville News-Democrat, in Missouri, Texas, and Illinois, respectively, and has hundreds of thousands of subscribers.  As part of its newspaper delivery, Cypress would deliver premium editions for holidays, special events, or elections.  As the name premium denotes, those editions were charged at a higher rate.  For some subscribers, Cypress would charge for the premium addition by shortening the subscriber’s…

In Perras v. H&R Block, No. 14-2892 (8th Cir. June 18, 2015), the Eighth Circuit issued an opinion regarding an issue that has yet to be addressed by the Missouri Supreme Court - to what extent does the Missouri Merchandising Practices Act (MMPA) apply to transactions outside of the state? In 2011, the IRS promulgated new regulations requiring tax professionals, at their own cost, to pass a certification exam and obtain a tax-preparer ID number before being authorized to submit federal tax returns.  H&R Block, the Kansas City-based "world largest tax services provider," decided to pass this cost onto its customers in the form of a nominal "Tax Preparer Compliance Fee." California resident Ronald Perras paid for his local H&R Block office to prepare his taxes in 2011 and 2012.  He subsequently sued the company in a Missouri federal court under the MMPA seeking to represent a nationwide class (with the exception of Missouri) based…

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,…

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…

Emphasizing the individualized nature of each putative class member’s experience, Judge Ortrie Smith denied the plaintiffs’ motion for class certification in Combs v. The Cordish Companies et al., No. 14-0227, 2015 WL 438154 (W.D. Mo. Feb. 3, 2015). Alleging that the defendants unlawfully limited their access to Kansas City’s popular Power and Light District, the plaintiffs brought suit under 42 U.S.C. § 1981 and sought to certify a class comprised of all persons of African-American descent who were “excluded, ejected, harassed, or suffered other discriminatory treatment” at the hands of the defendants. In denying class certification, Judge Smith homed in on the need for detailed and individual factual inquiries. In particular, he focused on the fact that putative class members would have to prove more than that the defendants intended to discriminate against them – they would also have to demonstrate that they were in fact victims of discrimination. This,…

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 thorough per curiam order, the Kansas Court of Appeals emphatically reversed the District Court's order certifying a class of "free gas" users.  In Combs v. Devon Energy Prod. Co., 2013 WL 3867981 (Kan. App. July 26, 2013), the Court of Appeals concluded that the District Court had abused its discretion in certifying a class consisting of resident owners of surface estates burdened with oil and gas leases held by Devon where the leases contained "free gas clauses", ie. clauses entitling the lessor to connect to and draw from any gas well on the land for his or her own use free of charge.  The class had sought a declaration that the free gas clauses in the leases obligated Devon to provide a usable supply of free gas, which it alleged Devon had failed to provide due to pressure and moisture issues. The District Court certified the class under both…

In Halvorsen v. Auto-Owners Ins. Co., 718 F.3d 773 (8th Cir. July 3, 2013), an Eighth Circuit panel consisting of Judges Loken, Smith, and Benton reversed the District court’s certification of a class of North Dakota insureds asserting breach of contract and bad faith claims based on the denial of personal injury protection (“PIP”) claims though the insurer’s Reasonable & Customary (“R&C”) deductions.  Under the R&C system, AOI would employ claim reviewers to review PIP claims and recommend denial of coverage for claims above the “80th percentile” – ie, the amount charged by eighty percent of the medical providers in the geographic area for comparable services.  The District Court denied certification to a parallel group of Minnesota insureds because Minnesota law mandated that all no-fault insurance claims for less than $10,000.00 be arbitrated, hence causing profound numerosity and typicality problems.   But the District Court certified a class consisting essentially of…

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…

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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