The Supreme Court's opinion today in Campbell-Ewald v. Gomez, No. 14-857 significantly limits the defense tactic of making an offer of judgment to moot a plaintiff's or putative class representative's claim: We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists. In short, defendant cannot make a Rule 68 offer and then argue that an unaccepted offer renders the plaintiff's claim moot (i.e. no Article III standing). The cost-shifting consequence of plaintiff not accepting a Rule 68 offer remains: the plaintiff must pay costs incurred after the offer was made "if the judgment that the [plaintiff] finally obtains is not more favorable than the unaccepted offer."  Rule 68(d).  This is important, especially when a…

Earlier this year, SHB welcomed the addition of complex litigation boutique Grippo & Elden in Chicago.  We were thrilled at the news because of the deep bench of experienced class action lawyers that were joining our firm, extending our presence and expertise to the Windy City.  One of the talented lawyers in our Chicago office, Chris Wray (a former 8th Circuit clerk to the Honorable Duane Benton), tipped us off about a recent decision from the Seventh Circuit may have created a circuit split on the implicit requirement of ascertainability of Rule 23.  He was kind enough to put together the following guest post: Several circuits have recognized an implicit requirement under Rule 23 that a class must be defined clearly and that membership be defined by objective criteria. In addressing this requirement, courts have sometimes used the term “ascertainability.”  Class definitions have failed this requirement when they were too vague or subjective,…

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…

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…

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…

In Thomas v. U.S. Bank National Association et al., No. 14-2265 (8th Cir. June 18, 2015), the Eighth Circuit affirmed the district court’s order dismissing a putative class action that alleged the defendants violated the Missouri Second Mortgage Loan Act (“MSMLA”) by charging and collecting impermissible fees in connection with plaintiffs’ principal loan amount. The plaintiffs alleged that they represented some 1,600 Missouri homeowners who obtained a second mortgage from FirstPlus (a now-defunct company).  After issuing loans, FirstPlus sold and assigned the loans and second mortgages to a myriad of different entities who constituted the defendant class in the case. The district court dismissed the case after concluding that the three-year statute of limitations applied to the MSMLA claims and that class action tolling principles did not save the class. This case was but one in a long line of cases against various institutions for allegedly charging and collecting fees…

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…

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 2009, Robert Eaton purchased a manufactured home from CMH.  The purchase contract contained a clause required Mr. Eaton to arbitrate all claims for any dispute arising out of the purchase of the home, but contained a clause that specifically reserved the right for CMH to pursue a lawsuit in court to foreclose upon any collateral, to obtain a monetary judgment, or to enforce the security agreement. Furthermore, this reserve clause contained “anti-waiver” language that stated CMH’s right to bring such a lawsuit did not constitute a waiver to compel arbitration regarding any other dispute related to the contract. Several years later, Mr. Eaton filed suit in Lincoln County circuit court, alleging that his manufactured home was defective and that CMH misrepresented the home as new at the time of sale.  CMH moved to dismiss and compel arbitration pursuant to the sale contract, but the trial court overruled CMH's motion to compel arbitration. The…

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