Category Archives Judge Whipple

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…

Going deeper into the post-Concepcion discussion of what arbitration agreements containing class action waivers are enforceable and which are not, Judge Whipple and the Western District of Missouri weigh in with a well-reasoned analysis of another consumer arbitration agreement in another cellular phone contract in Davis v. Sprint Nextel Corp., 2012 WL 5904327 (W.D. Mo. Nov. 26, 2012). As you might recall, the United States Supreme Court in Concepcion forbade the nullification of arbitration agreements simply because they eliminated classwide arbitration.    As you may also recall, the Missouri Supreme Court recognized this new complication in Brewer and Robinson, and grappled with the question of whether the particular arbitration agreements at issue in those cases were in fact unenforceable as unconscionable under generally applicable contract defenses as defined by Missouri law. Based on the Missouri Supreme Court's directive in Brewer, Judge Whipple analyzed the unconscionability issue in terms of its impact on…

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