Category Archives Judge Kays

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…

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…

The defendant in this case got an unpleasant valentine from Judge Kays when he granted the plaintiff class’s motion to enforce the class settlement, despite the Defendant’s assertion there was no settlement.  In July 2012 the parties had informed the Court that they had agreed to settle this putative FLSA class action and were working on finalizing the agreement.  For the next two months, Plaintiffs continued to inform the Court that they had settled the case, while the Defendant failed to respond to the Court’s requests for a status update – never a good practice – until in November it informed the Court that the parties had reached an impasse.  Plaintiffs disagreed, claimed they did indeed have a deal, and moved to enforce it. Defendant Health Systems Inc. identified three sticking points: the virtual settlement fund and calculation of class attorneys’ fees; the scope of class notice; and the scope…

As part of our analysis, we’ve been looking at how Missouri courts have been interpreting the United States Supreme Court’s decision in Wal Mart v. Dukes, 1341 S. Ct. 2541 (2011).  As you probably recall, Dukes has been lauded as a game-changer by some on the defense side, or dismissed by some as a recapitulation of prior law and the product of a really bad fact pattern by others.   Without getting into too much detail on a subject well-covered in several places, Justice Scalia wrote for the majority in reversing the certification of a massive class of some 1.5 million female current and former Wal Mart employees alleging Title VII discrimination under a disparate impact theory.  At the risk of oversimplifying, the Dukes majority denied certification under b(3) because in the absence of a companywide discriminatory pay and promotion policy, there was no common question, and denied injunctive certification under…

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