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On June 19, the United States Supreme reaffirmed some basic principles of personal jurisdiction in Bristol-Meyers Squibb Co. v. Superior Court of California, 528 U.S. __ (2017).  In a bloody-good 8-1 decision (with only Justice Sotomayor dissenting) the United States Supreme Court reversed a decision of the California Supreme Court that had affirmed California's exercise of personal jurisdiction over BMS, a foreign corporation, in a series of lawsuits brought by individuals alleging personal injuries from the ingestion of Plavix, a prescription blood-thinning drug manufactured and sold by BMS. The California Supreme Court affirmed the California Superior Court's exercise of personal jurisdiction over BMS despite the facts that 592 of the plaintiffs were residents  of states other than California, and alleged no connection between their injuries and any conduct taking place in California whatsoever.  Because BMS is headquartered in New York (not California), incorporated in Delaware (again, not California), and maintains substantial operations in…

After the district court certified a class comprised of customers who had contracted with Cox Enterprises for cable services, Cox sought to compel arbitration pursuant to clauses in class members’ contracts.  That bid was frozen in its tracks by the district court and icily affirmed by the Tenth Circuit.  The Court’s holding?  A class-action defendant with a potential arbitration defense can’t hold it back anymore, at least when the issue could impact the propriety of class certification.  In re Cox Enterprises, Inc. Set-Top Cable Television Box Antitrust Litig., No. 14-6158 (10th Cir. June 24, 2015). In particular, the Tenth Circuit emphasized that 87% of class members were potentially subject to arbitration, which undermined the district court’s findings of numerosity and predominance.  Accordingly, Cox’s conceal-don’t-feel-don’t-let-them-know approach amounted to an inequitable second bite at the apple.  The court explained that arbitration should be raised as early as possible, rather than for the…

Filing an bare-bones motion for class certification alongside the class-action complaint is one tactic to avoid the mooting effect of a Rule 68 offer. But what are defendants and the courts supposed to do with such a motion and its flimsy thread-bare recitals of the Rule 23 requirements? Federal judges do not like motions lingering on their dockets longer than six months; it hurts their stats and gets reported to Washington.  See, e.g., Singer v. Illinois State Petroleum Corp., 2013 wl 2384314, at *2 (N.D. Ill. May 24, 2013) ("[T]his Court is unwilling to contemplate the prospect of shattering its unbroken record of more than three decades of reporting no 'stale' pending motions in its statutorily-required September 30 report where, as here, such purported staleness is occasioned by lawyer-caused delays rather than by this Court's failing to act on a live motion."). Instead of agreeing to an arbitrarily fast six-month class-cert…

Although this blog is focused on highlighting recent orders and opinions from courts within the 8th and 10th Circuit, there are countless others from courts around the country that will inevitably impact and influence class action jurisprudence.  Law360 published the "6 Recent Class Cert. Rulings Every Litigator Needs To Know," a nice compilation of recent rulings that may affect your practice (of course, none were from the 8th and 10th Circuit - otherwise you would have already heard about it here!). In addition to the cases highlighted in the Law360 article, Andrew Trask of Class Action Countermeasures also published "The Ten Most Significant Class Action Cases of 2014," a nice summation of impactful cases from the last year.

In an interesting opinion, United States District Judge Carlos Murguia disposed of Defendant Defenbaugh Disposal, Inc.’s Motion for Reconsideration which questioned compatibility of the District Court’s order certifying a class of consumers charged an “environmental/fuel charge” and an “administrative fee,” and a concurrent order denying summary judgment against the sole putative class representative based on the voluntary payment doctrine.  Defenbaugh naturally questioned, among other less ripe issues, how the District Court could junk their summary judgment motion against Whitton as being too “heavily fact-dependent” to adjudicate at the summary judgment stage while concurrently certifying a class action.  In his order denying reconsideration, Judge Murguia defended his orders as compatible because the summary judgment issue was decided only with respect to the putative class representative, Mr. Whitton, “meaning that only Mr. Whitton’s actions or knowledge were relevant to defendants’ motion for summary judgment,” while “predominance is analyzed in terms of all…

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…

Plaintiff's lawsuit was essentially about octane. She claimed that an unfair practice occurs every time a consumer buys higher octane fuel from single-hose gas pump and incidentally receives a residual amount of lower octane fuel lingering in the hose from a prior fueling. In her single-count MMPA lawsuit, Plaintiff sought money and an injunction on behalf of a class of Missouri consumers who bought higher grade gasoline from the Defendants (retail-gas-station operators). Preemption posed a problem for Plaintiff. The federal Petroleum Marketing Practices Act expressly preempts state-law requirements regarding labeling and marketing of gasoline octane rating that are not "the same as" the PMPA's requirements. Although Plaintiff carefully omitted the word "octane" in her class-action complaint, Judge Kays held that federal law preempted her MMPA claim: Although Plaintiff has successfully avoided using the word “octane” anywhere in the Complaint, it does not change the fact that the essence of her…

One of the implicit requirements of Rule 23 is that a class should not be certified unless it is "ascertainable;" thus, if a court is required to engage in fact-intensive individualized analysis to identify class members, certification is not appropriate.  While we recently blogged about two thoughtful opinions coming from the Third Circuit, decisions in our home Circuits have not been as plentiful. Judge Henry E. Autrey of the Eastern District of Missouri, however, recently highlighted the  requirement and its affect on the other Rule 23 requirements in Henke v. Arco Midcon, LLC, No. 4:10CV86 HEA, 2014 WL 982777 (E.D. Mo. Mar. 12, 2014).  In Henke, the plaintiffs alleged that their land was contaminated from oil leaks from a decades old petroleum pipeline that had been reconditioned to carry fiber optic cable.  The problem for the plaintiffs was that there were several additional active and inactive petroleum pipelines running across their property; and…

On February 24, 2014, the Missouri Department of Revenue released a letter ruling on the taxability of separately-stated delivery charges for products used in heavy-duty equipment and industrial applications.  (In that situation, the charges were taxable because the parties intended for delivery to be part of the sale.) Since we've seen several recent class actions claiming that the customers/plaintiffs paid tax on delivery charges that shouldn't have been taxed, we thought we'd review the key Missouri Supreme Court cases analyzing taxability of delivery charges.  Bottom line, the fundamental question is whether the parties to these transactions intended the delivery charge to be part of the sale: Alberici Constructors, Inc. v Director of Revenue, No. SC93771 (Mo. Jan. 13, 2015) (affirming administrative agency's finding that delivery charge was taxable based on "substantial and competent evidence . . . that it was [the parties'] intention that the delivery service be a part of the crane rental") Southern Red-E-Mix…

We're very fortunate  to work with some supremely talented lawyers here at Shook, Hardy & Bacon.  One such lawyer is Rebecca Schwartz, who has recently obtained some superb results for her clients in the data security and privacy context.  We leapt at the opportunity for her to provide this guest post about the current state of the law in using Rule 68 Offers of Judgment in the Eighth Circuit: Mechanics of Rule 68.  The mechanics of Rule 68 are straightforward.  Under Rule 68, “a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.”  Fed. R. Civ. P. 68.  If the offer is accepted by written notice within 14 days, proof is to be filed with the court and the clerk must enter judgment.  Id.  If an offer is not accepted within 14 days, it is…

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