Category Archives: Class Action

map of the U.S. state of Missouri

Missouri Senate Bill 793 Proposes Sweeping Changes to Missouri Merchandising Practices Act, Including Proof of Individual Out of Pocket Damages Incurred by Class Action Plaintiffs

In its current form, the Missouri Merchandising Practices Act (MMPA) (§ 407 R.S.Mo, supra) allows any person who purchases or leases merchandise primarily for personal, family, or household purposes to bring a private cause of action against a manufacturer, seller, or distributor of a product or service for unlawful merchandising practices. Unlawful merchandising practices are defined as the use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of…

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Defeating “Unnatural” Class Actions

On June 12, 2015 a plaintiff filed a class action lawsuit against Kraft Foods claiming that its Capri Sun beverages are not “all natural” because they contain citric acid and flavorings. “Simply put,” the plaintiff alleges in Osborne v. Kraft Foods Group, Inc., “they contain unnatural ingredients.” These allegations have become commonplace in beverage labeling class actions. Snapple, AriZona, Skinnygirl Margarita mix, and Pure Leaf Iced Tea have all faced similar accusations. The Pure Leaf class action complaint, Laboon v. Unilever U.S., Inc. filed…

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NJ Court Considers Defendant’s Conduct, In Part, In Rejecting Ascertainability Doctrine

Class action practitioners and companies who have encountered class action lawsuits in recent years are undoubtedly aware of the ascertainability doctrine, which, particularly in the 3rd Circuit, has been successfully used to challenge class certification. The ascertainability doctrine requires that a class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular person is a member of the proposed class, and the identity of the class members must be identified by reference to objective criteria. Courts…

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Rough Justice Is Not Justice: Public Citizen’s Challenge to Third Circuit Ascertainability Rule

As we discussed recently, successful class certification in the Third Circuit requires a showing that the proposed class is ascertainable in an objective, reliable, and administratively feasible way.  Several recent decisions from the Third Circuit have reaffirmed that, if the proposed class cannot be objectively defined, and class membership cannot be reliably and feasibly determined, then class certification is not appropriate. In one of those recent cases – Carrera v. Bayer Corp., 2013 U.S. App. Lexis 17479 August 21, 2013) – Public Citizen…

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TCCWNA – Will it Apply to Omissions too?

Recently the NJ Supreme Court issued a highly anticipated opinion on the Truth in Consumer Contract Warranty and Notice Act (“TCCWNA”).  See  Shelton v. Restaurant.com, 2013 NJ Lexis 726.  TCCWNA was passed in 1982, but was largely untouched until the mid-2000s, and now serves as a mechanism through which class actions are often filed against businesses that are alleged to have violated “clearly established” consumer rights.  The Shelton holding provided some long-awaited clarification of a broadly interpreted statute; however, it also created more questions…

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Reliable Evidence Required To Show Class Ascertainability

The Third Circuit recently reaffirmed its prior pronouncement that an “essential prerequisite” to class certification is a showing by a preponderance of the evidence that the class is ascertainable in a way that is both “objective,” as well as “reliable and administratively feasible.”  In doing so, the Court stated bluntly that class membership cannot be based on the “say-so” of putative class members. In Hayes v. Wal-Mart StoresInc., 2013 U.S. App. Lexis 15959 (August 2, 2013), the Third Circuit granted an…

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CAFA Removal: Damage Waiver Stipulations Do Not Defeat Federal Court Removal Jurisdiction

Under the Class Action Fairness Act (CAFA) a state court class action can be removed if the claims of the potential class members exceed $5 million in the aggregate. Some plaintiffs, to avoid removal, state in their complaint that the total damages sought are less than $5 million, and in the case of Standard Fire Insurance Co. v. Knowles, the plaintiff, Greg Knowles, even attached a signed stipulation to that effect. The defendant removed, and the Arkansas district court remanded, based upon the stipulation.…

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Potential Supreme Court Split Over Motorist Privacy Law Exception in Class-Action Solicitations

A group of South Carolina residents urged the high court to prohibit attorneys from gathering personal information from the state’s Department of Motor Vehicles to help find possible plaintiffs for class-action lawsuits. This case before the U.S. Supreme Court — Edward F. Maracich et al. v. Michael Eugene Spears et al., case no.12-25 — involves the application of the Driver’s Privacy Protection Act (DPPA), a federal law that generally blocks state motor vehicle bureaus from disclosing drivers’ personal information without express consent of the…

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Seller Beware: Dealership’s Failure to Disclose Used Car Was a ‘Loaner’ Leads to Treble Damages and Attorneys Fee Award

In what appears to have been a case of first impression under New Jersey law, a Morris County judge ruled that a used car dealership’s failure to disclose that a used car was a loaner car and not merely a “one-owner, turned-back leased car” was actionable under the New Jersey Consumer Fraud Act. In 2009, the plaintiff purchased a used 2008 Mercedes Benz ML 350 from defendant Millennium Mercedes Benz in Bridgewater, New Jersey, understanding that the car had been returned to the dealership by…

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I Paid How Much For That Drink?? – Court Finds Price Omission From Menu Not Actionable Under TCCNWA

A District Court of New Jersey Judge recently granted a Fed. R. Civ. P. 12(b)(6) motion to dismiss a putative class action brought against Applebee’s and IHOP, in which the plaintiff claimed that the defendants violated the NJ Truth in Consumer Contract Notice and Warranty Act (TCCNWA) by failing to disclose beverage prices on their menus. In Watkins v. Dineequity, Inc., et al. (11-cv-7182), the plaintiff based the complaint solely on the alleged TCCNWA violation.  TCCNWA (N.J.S.A. 56:12-14, et seq.) is a dangerous…

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