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…

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…

On January 13, 2014, the Eighth Circuit overturned, on interlocutory appeal pursuant to Fed. R. Civ. P. 23(f), a district court’s order certifying four classes of Nebraska consumers, who alleged that Credit Management Services Inc. ("CMS") and its in-house counsel violated the Fair Debt Collection Practices Act. This is notable not only for the fact that the Eighth Circuit granted review. Writing for the panel, Judge Loken revoked the district court’s certification order, finding that the district court abused its discretion in certifying the class without conducing a "rigorous analysis . . . of what the parties move prove” and that Rule 23 requires. The plaintiffs alleged that CMS and four in-house lawyers violated the FDCPA, by sending standard-form collection complaints and discovery requests. Plaintiffs alleged that the standard-form pleadings violated various provisions of the FDCPA, making them unfair or deceptive or practices that also violate Nebraska consumer protection laws.…

The United States Supreme Court held on Monday that a defendant seeking removal under CAFA need only allege the jurisdictional amount in its notice of removal.  Gone are the days when a defendant must quickly muster an affidavit or other evidence to include in a notice of removal to prove the jurisdictional amount-in-controversy under CAFA. This case began when the District of Kansas remanded back to state court a class action concerning allegedly deficient royalty payments.  See Owens v. Dart Cherokee Basin Operating Co., No. 12-4157, 2013 WL 2237740 (D. Kan. May 21, 2013).  (We covered the history of this case here and here).  In Dart’s removal papers, it stated that the three requirements of CAFA had been met, and more specifically with regard to the amount-in-controversy, Dart stated the putative class members’ claims totaled more than $8.2 million.  Owens moved to remand the case to state court, asserting that…

Yesterday, the 11th Circuit held that a putative class representative's claim is not mooted by an unaccepted Rule 68 offer of judgment.  See Stein v. Buccaneers LP, No. 13-15417 (11th Cir. Dec. 1, 2014). Just in time for the holidays, here's a summary of the Rule 68 legal landscape in the 8th and 10th Circuits: 8th Circuit.  There's no Eighth Circuit decision squarely on point.  The district courts have reached opposite conclusions: Goans Acquisition, Inc. v. Merchant Solutions, LLC, 2013 WL 5408460 (W.D. Mo. Sept. 26, 2013) (following the 7th Circuit's decision in Damasco) March v. Medicredit, Inc., 2013 WL 6265070 (E.D. Mo. Dec 04, 2013) (finding that pre-certification offer does not moot a named plaintiff's claim); Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., 2013 WL 3771397, at *2 (D. Minn. July 18, 2013) (same); Jenkins v. General Collection Co., 246 F.R.D. 600, 602–03 (D. Neb. 2007) (same); Liles v. Am. Corrective Counseling Servs., Inc., 201 F.R.D. 452, 455…

Since 2005, Missouri has statutorily limited punitive damage awards to the greater of $500,000 or five times the net amount of the judgment awarded to plaintiff.  See Mo. Rev. Stat. 510.265. In September 2014, however, the Missouri Supreme Court in Lewellen v. Franklin, 441 S.W.3d 136 (Mo. 2014) held that this punitive-damages cap violates a plaintiff's constitutional right to a trial by jury. The Court's analysis was straightforward: Any change in the right to a jury determination of damages as it existed in 1820 violates the Missouri Constitution. In 1820, there existed a right to a jury determination of the amount of punitive damages. A statutory cap on punitive damages "necessarily changes and impairs" that right. Therefore, the punitive-damages cap under Mo. Rev. Stat. 510.265 is unconstitutional. The Court also distinguished between Missouri's statutory punitive-damages cap and the US Constitution's Due Process limitations on punitive damages, noting that courts have a duty to conduct a fact-specific inquiry…

Since May 2011, here are the most-cited reasons the JPML has denied Section 1407 centralization of products liability and sales/marketing cases: The limited number of parties and involved counsel make informal cooperation practicable and preferable to formal centralization. MDL 2509 - IN RE: SEMPRIS MEMBERSHIP PROGRAM MARKETING AND SALES PRACTICES LITIGATION, 2/18/14 Order Denying Transfer ("Various mechanisms are available to minimize or eliminate the possibility of duplicative discovery even without an MDL.  In these circumstances, informal cooperation among the relatively few involved counsel and coordination among the involved courts are, in our judgment, preferable to formal centralization.") MDL 2366 - IN RE: LOUISIANA-PACIFIC CORP. TRIMBOARD SIDING MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, 6/11/12 Order Denying Transfer (denying transfer of five actions, in part, because “plaintiffs in some of the actions share counsel, and defendant is represented by the same counsel in all actions”) MDL 2340 - IN RE: FRESH DAIRY PRODUCTS…

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