Category Archives Standing

Not quite the wrecking ball some hoped it would be, this week’s Supreme Court decision in Spokeo v. Robins created a crack just wide enough to allow a new wave of Article III standing arguments in private actions for statutory violations. As we discussed in our earlier post, Spokeo is a website that provides users with information about other individuals, including contact data, age, occupation, economic health, and wealth level.  The plaintiff, Thomas Robins, alleged willful violation of the Fair Credit Reporting Act (FCRA) because Spokeo’s website described him inaccurately—as a married 50-year-old, with children, and a high income.  None of the information was correct.  Robins alleged that the inaccurate information injured him when he searched for employment because potential employers saw him as someone who would expect a higher income and likely would be unwilling to relocate.  The district court dismissed the case for lack of Article III standing;…

Last week, the Supreme Court issued its opinion in Tyson Foods v. Bouaphakeo, No. 14-1146 (March 22, 2016), a closely watched case out of the 8th Circuit that presented two meaty issues relevant to class action practitioners: 1) whether a plaintiff can use statistical sampling to establish class-wide liability, aka "Trial-by-Formula"; and 2) whether a certified class can include uninjured claimants.  In its opinion affirming both class certification and the trial verdict, the Court did not make any broad pronouncements on the use of statistical evidence in classwide proceedings, but instead took a more measured approach on when such evidence may be used.  Our thoughts on the opinion are below. On the use of statistical evidence, Justice Kennedy, writing for the majority observed that "[a] categorical exclusion of that sort, however, would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability."  Instead, whether and when…

When movies, politics, the TCPA, and Article III standing come together, the results are magic.  This happened recently in Golan v. Veritas Entertainment, LLC, et al, in which the Eighth Circuit Court of Appeals told us some things about the TCPA and Article III standing, and Mike Huckabee told us about a very special movie.  Ron and Dorit Golan were enjoying a peaceful evening at home when they received the following mysterious message on their answering machine (yes, some people still have answering machines, apparently): "Liberty.  This is a public survey call.  We may call back later."  The Golans, who were on the no-call list, did what any of us would do: they hired legal counsel, sued, and tried to certify a TCPA class. By way of background, the mysterious patriot on the other end of the line was Governor Mike Huckabee, who had been hired as a "celebrity" voice…

On June 18, 2015, the Eighth Circuit decided another class action case involving Missouri borrowers who took out second mortgages on their homes and alleged that various assignees and purchasers violated the Missouri Second Mortgage Loan Act (“MSMLA”) by charging and collecting impermissible fees.  See Wong v. Wells Fargo Bank N.A. et. al., Case No. 14-1921 (8th Cir. June 18, 2015).  The plaintiffs had obtained their second mortgage loans on their homes through Bann-Corr. Like in Thomas, Bann-Cor executed the loan agreements but then sold or assigned the loans and accompanying liens to various purchasers and assignees, the defendants in the action. The plaintiffs alleged that defendants either directly or indirectly charged or received fees in the transactions that were impermissible under the MSMLA. Although the district court resolved many motions on various topics, the district court’s granting of a motion to dismiss on Article III standing grounds is relevant…

Following its grant of certiorari in Spokeo v. Robbins earlier this year, the United States Supreme Court has granted cert in yet another class action for the upcoming Fall Term that may have wide-ranging implications in the class action arena, particularly the wage-and-hour litigation. In Tyson Foods, Inc. v. Bouaphakeo, the Eighth Circuit recently affirmed the district court's decision to certify a class of hourly employees at a Tyson meat-processing facility in Iowa.  The plaintiffs alleged Tyson failed to provide FLSA overtime compensation for donning and doffing (putting on and taking off) protective gear before their shift formally started.  Although Tyson argued that there were significant factual differences between the workers in the putative class, the district court certified the case based on the plaintiffs' proposed statistical analysis calculating the “average” time spent donning and doffing the protective equipment, notwithstanding any employee’s actual individualized and personal circumstances.  The case was tried, ultimately resulting in a…

In a development that could have huge class action implications not only for Missouri and Kansas, but also the rest of the nation, the United States Supreme Court on April 27, 2015 granted certiorari review of the Ninth Circuit’s decision in Spokeo v. Robins, 742 F.3d 409 (9th Cir. 2014).  This case raises the critical issue of whether the mere violation of a federal statute can supply Article III standing to an unharmed private litigant seeking only statutory (not actual) damages under the Fair Credit Reporting Act (FCRA) – or any of a host of other federal statutes like it. By way of background, we all know that in order to maintain Article III standing in federal court, the plaintiff must show: 1) injury in fact, ie injury in fact that is both concrete and particularized and actual and imminent, as opposed to conjectural or hypothetical; 2) causation, ie the…

In a recent decision from the United States District Court for the Western District of Missouri, Judge Whipple demonstrated that he is indeed “down with the chips” when it’s crunch time by granting Defendants’ 12(b)(1) and 12(b)(6) motion to dismiss the putative class claims asserted under the MMPA against Cape Code Potato Chip Company, Inc. and Snyder’s-Lance, Inc.    In her complaint, the class representative alleged that the sale of these tasty snacks violated the MMPA because they were falsely labeled as “all natural” and containing “no preservatives.”  As you may recall, a valid MMPA claim requires the plaintiff to allege: 1) the purchase of merchandise from the defendant; 2) for personal, family, or household purposes; and 3) ascertainable loss of money or property; 4) as a result of a practice proscribed by section 407.025.1 of the MMPA. After sinking his teeth into Defendants’ motion, Judge Whipple may have Ruffled a…

Do consumers who buy kosher products for non-religious reasons have a legitimate "beef" with the manufacturer if the product turns out not to be kosher? In Wallace v. ConAgra Foods, Inc., 747 F.3d 1025 (8th Cir. 2014) the plaintiffs brought a putative nationwide class action alleging that food-industry conglomerate ConAgra violated various consumer protection laws by labeling their Hebrew National franks (hot dogs) as “Made with Premium Cuts of 100% Kosher Beef.” The plaintiffs alleged that the kosher inspection process was "defective and unreliable" because of the company's manufacturing quotas.  The district court granted ConAgra's motion to dismiss based on a lack of subject matter jurisdiction, agreeing that the plaintiff's claims were "barred"  because "the determination of whether a product is in fact 'kosher' [is] intrinsically religious in nature." Id. at 1028. The 8th Circuit, however, disagreed and vacated the district court's dismissal because it held that the plaintiffs actually lacked Article III standing,…

We all know that constitutional standing requires an injury-in-fact that is fairly traceable to the challenged conduct of the defendant.  But how exactly does that operate under the Electronic Fund Transfer Act, 15 U.S.C. 1963, which requires two forms of notice of transactions fees on ATMs, both on-machine notice and on-screen notice, and provides for statutory damages? In Charvat v. Mutual First Federal Credit Union, 725 F.3d 819, 2013 WL 3958300 (8th Cir., August 2, 2013), the plaintiff sought to certify a class of persons charged transaction fees on the Bank/defendant's machines, which lacked the prescribed on-machine notice (but provided on-screen notice).  The District Court dismissed the claims of Charvat, the putative class representative, for lack of standing, concluding that Charvat had alleged an injury at law, but not in fact. Judge Shepherd, writing for the panel, reversed.  Without addressing whether Charvat suffered an economic injury from the $2.00 transaction fee,…

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