Category Archives W.D. Mo.

In a so-called “slack-fill” case, Judge Laughrey issued an opinion denying Hershey Company’s motion to dismiss a putative class’s MMPA and unjust enrichment claims, which involve allegations that Reese's Pieces and Whoppers candy boxes improperly suggest that they contain more product than they actually do.  According to the opinion, consumers average a whopping 13 seconds making in-store purchasing decisions, further supporting the plaintiff’s contention that consumers attach significant importance to the size of candy boxes, and that he was misled to believe that he was purchasing more product than he actually received. The court rejected Hershey's argument that the MMPA claim was not plausible, reasoning that the MMPA has been interpreted as "cover[ing] every unfair practice imaginable and every unfairness. . . ."  What's more, a "plaintiff need not even allege or prove reliance on an unlawful practice to state a claim under the act."  Judge Laughrey concluded that the plaintiff…

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…

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,…

How does one prove the citizenship of members of the putative class for purposes of applying CAFA’s jurisdictional exceptions?  For instance, the Local Controversy Exception under 28 U.S.C. Section 1332(d)(4) requires the federal district court to decline to exercise CAFA jurisdiction if (among other requirements) two-thirds of the putative class members are citizens of the state in which the action was originally filed.  But since absent class members are typically absent, how do you know? This issue popped up before Judge Harpool when the defendant which operated a microwave popcorn packaging plant in Jasper Missouri used CAFA to remove yet another diacetyl class.  While it is well-settled that the party seeking remand must prove the application of one of CAFA’s exceptions, this is easier said than done. Rather than apply strict proof, the district court elected to rely on “common sense” and “logic.”  Although only 41% of the class actually…

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…

We have written a few posts about the challenges inherent in obtaining judicial approval of proposed class settlements here at the Missouri and Kansas Class Action Law Blog, and this latest order issued by Judge Kays denying a proposed hybrid wage-and-hour settlement outlines many of those concerns that counsel should be mindful of when negotiating and finalizing a proposed class settlement that will pass judicial scrutiny. (HT to our former colleague Eric Dirks who tipped us off about this order earlier this week - look for a guest post from him in the coming weeks). In Stewart v. USA Tank Sales and Erection Co., No. 12-05136-CV-SW-DGK, 2014 WL 836212 (W.D. Mo. March 4, 2014), the plaintiffs brought a seemingly straight-forward wage-and-hour claim, alleging that their employer failed to pay them overtime; the wrinkle being that it was a "hybrid" class where plaintiffs bring a claim under both the federal Fair Labor Standards Act…

Last week, Magistrate Judge Maughmer issued an order in Goans Acquisition, Inc. v. Merchant Solutions, LLC, No. 12-00539, 2013 WL 5408460 (W.D. Mo. Sept. 26, 2013) tackling a popular class action topic these days: To what extent does an unaccepted Rule 68 Offer of Judgment moot a putative class action claim? Although the Supreme Court dodged this ultimate question under the FLSA context in Genesis (read about our previous posts about that case its aftermath here, here, and here), in Goans, Judge Maughmer held that Goans' claim under the Telephone Consumer Protection Act (“TCPA"), both on an individual and class basis, was mooted by the unaccepted offer.  Slip op. at  *3 ( "Most federal circuits have found that an offer of judgment that would provide all the relief a plaintiff requests (or is entitled to) has the effect of mooting the action even if the offer is not accepted.")  The court did, however, find that plaintiff's conversion claim…

In Morgan v. Saint Luke’s Hospital of Kansas City, 403 S.W. 3d 115 (June 28, 2013), the Missouri Court of Appeals addressed this issue of first impression and reversed the trial court’s grant of judgment on the pleadings, holding that St. Luke’s was not entitled as a matter of law under Section 430.230 to assert a lien on the patient’s claim against a third party tortfeasor where the patient’s insurer had already paid the patient’s bill pursuant to its discounted payment agreement with the hospital.  In this case, the plaintiff had been the victim of a motor vehicle accident, had been treated at St. Luke’s, and her insurer had then paid her discounted bill according to a discounted payment agreement between St. Luke’s and the insurer. St. Luke’s then returned the discounted payment to the insurer, and then filed a lien for 100% of its billed charges on Ms. Morgan’s claim against…

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