Justia U.S. 8th Circuit Court of Appeals Opinion SummariesArticles Posted in Consumer Law
City of Creve Coeur v. DirecTV LLC
DirecTV and Dish Network (“Defendants”) provide video services in part through the Internet. The City of Creve Coeur filed this class action in Missouri state court on behalf of local government authorities, seeking a declaratory judgment that Defendants are liable under the Video Services Providers Act (“VSPA”) and implementing local ordinances, plus injunctive relief, an accounting of unpaid fees, and damages. Defendants removed the action based on diversity jurisdiction and the Class Action Fairness Act (CAFA). After the state court entered an interlocutory order declaring that VSPA payments are fees, rather than taxes, DirecTV filed a second notice of removal, arguing this order established the required federal jurisdiction. The district court granted Creve Coeur’s motion to remand. The Eleventh Circuit affirmed on different grounds. The court explained that the district court’s remand order plainly stated that the remand was based on comity principles as articulated in Levin, not on “state-tax based comity concerns.” Comity as a basis to remand was raised and fully argued in the first remand proceeding. Federal courts have long precluded two bites at this apple. Second, the Supreme Court in Levin emphatically stated that the century-old comity doctrine is not limited to the state-tax-interference concerns that later led Congress to enact the TIA. Third, the state court’s December 2020 Order addressed, preliminarily, only the VSPA fee-or-tax issue under state law. It did not address the broader considerations comity addresses. The state court order in no way overruled or undermined the basis for the district court’s first remand order. Therefore, DirecTV failed to establish the essential basis for a second removal. View "City of Creve Coeur v. DirecTV LLC" on Justia Law
Michael Tucker v. General Motors LLC
General Motors (“GM”) installed Generation IV 5.3 Liter V8 Vortec 5300 LC9 engines (“Gen IV engine”) in seven different GMC and Chevrolet trucks and SUVs in model years 2010 to 2014 (the “affected vehicles”). In 2016, representatives from various States filed a putative class action alleging that the affected vehicles contain a defect that causes excess oil consumption and other engine damage (the “oil consumption defect”). Plaintiffs appealed only the dismissal of their Missouri Merchandising Practice Act (MMPA) claim, stating that “the sole issue presented on appeal is whether the district court improperly applied the concept of puffery to their deceptive omissions claims under the MMPA.” The Eighth Circuit reversed the dismissal of the MMPA claims. The court concluded that advertising “puffery” does not affect an MMPA claim based on omission of a material fact, at least in this case, and the court agreed that Plaintiffs’ Class Action Complaint alleges sufficient factual matter, accepted as true, to state an omissions claim to relief that is plausible on its face. View "Michael Tucker v. General Motors LLC" on Justia Law
Steven Goldsmith v. Lee Enterprises
Plaintiff, a home-delivery subscriber to the St. Louis Post-Dispatch daily newspaper (the “Post-Dispatch”), filed a putative class action for damages against the owner and publisher of the Post-Dispatch in state court alleging that Defendants “double-billed” him for “overlapping days.” Defendants removed the case to federal court under the Class Action Fairness Act, alleging that Plaintiff is seeking aggregate class-wide damages for the applicable five-year statute of limitations period that exceed $5,000,000. Plaintiff filed a First Amended Class Action Complaint alleging six claims for relief under Missouri law. The district court granted summary judgment dismissing all claims. On appeal, Plaintiff argued the district court erred in granting summary judgment dismissing his breach of contract and MMPA claims because there are genuine issues of material fact “whether overlaps cost subscribers money” and whether Defendants’ billing practices violate the MMPA because “overlaps are incorrect and wrong.” The Eighth Circuit affirmed. The court explained that it might be evidence that Defendants made minor billing errors in Plaintiff’s individual subscriber account, but that claim was not pleaded. The district court did not err in granting Defendants summary judgment dismissing the claims Plaintiff asserted despite his belated raising of this unpleaded contract claim. Further, the court explained that Plaintiff failed to controvert Defendants’ evidence showing that DISCUS properly deducts from a subscriber’s payment-in-advance the applicable rate charged as each newspaper is delivered. Thus, because Plaintiff cannot establish the ascertainable loss element of an MMPA claim, the court held that it need not address his additional argument that the Post-Dispatch’s billing practices are unfair or unethical. View "Steven Goldsmith v. Lee Enterprises" on Justia Law
Robert Leflar v. Target Corporation
Plaintiff bought a laptop with a manufacturer’s warranty from Target. He filed a class action on behalf of “all citizens of Arkansas who purchased one or more products from Target that cost over $15 and that were subject to a written warranty.” His theory was that Target violated the Magnuson-Moss Warranty Act’s Pre-Sale Availability Rule by refusing to make the written warranties reasonably available, either by posting them in “close proximity to” products or placing signs nearby informing customers that they could access them upon request. Target filed a notice of removal based on the jurisdictional thresholds in the Class Action Fairness Act of 2005. The district court the class action against Target Corporation to Arkansas state court. The Eighth Circuit vacated the remand order and return the case to the district court for further consideration. The court explained that the district court applied the wrong legal standard. The district court refused to acknowledge the possibility that Target’s sales figures for laptops, televisions and other accessories might have been enough to “plausibly allege” that the case is worth more than $5 million. The district court then compounded its error by focusing exclusively on the two declarations that accompanied Target’s notice of removal. The court wrote that the district court’s failure to consider Target’s lead compliance consultant’s declaration, Target’s central piece of evidence in opposing remand, “effectively denied” the company “the opportunity . . . to establish [its] claim of federal jurisdiction.” View "Robert Leflar v. Target Corporation" on Justia Law
Felicia Stone v. J & M Securities, LLC
Plaintiffs, husband and wife, have appealed an order of the district court granting summary judgment for J&M Securities, LLC, in an action arising from disputes over debt collection. The district court concluded that Plaintiffs lacked Article III standing to bring claims under federal law, and dismissed their claims under Missouri law on the merits. The husband died while the appeal was pending. The wife moved under Federal Rule of Appellate Procedure 43(a)(1) to substitute herself for her husband. Plaintiffs appealed the district court’s reinstated order and judgment. As part of the appeal, the wife contends that once the district court concluded that Plaintiffs lacked standing to pursue their federal claims, the court should have remanded the case to state court. The district court agreed with this contention in its amended judgment but then vacated that judgment on the view that it lacked jurisdiction to enter it. The Eighth Circuit concluded that the district court erred by vacating the amended judgment and that the case should be remanded to state court. The court explained that here, the district court reconsidered its own remand order before any appeal. Under the statute, however, the remand order is “not reviewable on appeal or otherwise.” And This language has been universally construed to preclude not only appellate review but also reconsideration by the district court. The court remanded to the district court with instructions to reinstate the amended judgment of January 26, 2022, as to the claims of the wife, and to return the case to Missouri state court. View "Felicia Stone v. J & M Securities, LLC" on Justia Law
North Dakota Retail Assoc. v. Board of Governors
The North Dakota Retail Association and the North Dakota Petroleum Marketers Association sued the Board of Governors of the Federal Reserve System, alleging that fees for merchants in debit card transactions violated the Durbin Amendment. The district court dismissed the case, ruling that the claims were barred by the statute of limitations. The Merchants alleged that their facial challenge to Regulation II first accrued when Corner Post opened in 2018, rather than when Regulation II was published in 2011. The Eighth Circuit affirmed. The court concluded that, when plaintiffs bring a facial challenge to a final agency action, the right of action accrues, and the limitations period begins to run, upon publication of the regulation. In this case, the Merchants challenge the collection of interchange fees by third parties authorized to collect interchange fees by Regulation II. Here, The Merchants’ equitable tolling argument failed on its merits. This court reviews “a denial of equitable tolling de novo” and “underlying fact findings for clear error.” Thus, the court wrote that the Merchants failed to show that they have been pursuing their rights diligently. Because the Board published Regulation II in 2011 and the Merchants are not eligible for equitable tolling, the Merchants’ facial challenge to Regulation II remains time-barred by the six-year statute of limitations under 28 U.S.C. Section 2401(a). View "North Dakota Retail Assoc. v. Board of Governors" on Justia Law
Posted in: Consumer Law
BPP v. CaremarkPCS Health, L.L.C.
BPP sued CaremarkPCS Health, L.L.C. and Welltok, Inc., alleging a violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. Section 227. The district court granted Caremark and Welltok’s motion for summary judgment, and BPP appealed. BPP argued that the district court incorrectly interpreted the TCPA’s definition of an unsolicited advertisement. Further, BPP contended that the district court should have deferred to the Federal Communications Commission’s (“FCC”) interpretation of the term “unsolicited advertisement” under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). The Eighth Circuit affirmed. The court disagreed with BPP’s proposed interpretation of unsolicited advertisement. The TCPA does not ban all faxes that contain information about commercial goods or services, as BPP would have it. Rather, it bans faxes that “advertis[e] the commercial availability or quality of any property, goods, or services.” The fax itself, and not just the underlying property, good, or service, must have a commercial component or nexus to constitute an unsolicited advertisement. Further, the court wrote that the FCC’s guidance does not support BPP’s interpretation of the statute. The FCC has explained that a fax is not an unsolicited advertisement when its primary purpose is informational, rather than to promote commercial products. The court explained that in sum, no reasonable jury could find that the fax was an “unsolicited advertisement” under the TCPA, and the district court’s grant of summary judgment to Caremark and Welltok was proper View "BPP v. CaremarkPCS Health, L.L.C." on Justia Law
Posted in: Consumer Law
State of Nebraska v. Joseph Biden, Jr.
Plaintiff States’ requested to preliminarily enjoin the United States Secretary of Education (“Secretary”) from implementing a plan to discharge student loan debt under the Higher Education Relief Opportunities for Students Act of 2003(“HEROES Act”). The States contend the student loan debt relief plan contravenes the separation of powers and violates the Administrative Procedure Act because it exceeds the Secretary’s authority and is arbitrary and capricious. The district court denied the States’ motion for a preliminary injunction and dismissed the case for lack of jurisdiction after determining none of the States had standing to bring the lawsuit. The Eighth Circuit granted the Emergency Motion for Injunction Pending Appeal. The court concluded that at this stage of the litigation, an injunction limited to the plaintiff States, or even more broadly to student loans affecting the States, would be impractical and would fail to provide complete relief to the plaintiffs. MOHELA is purportedly one of the largest nonprofit student loan secondary markets in America. It services accounts nationwide and had $168.1 billion in student loan assets serviced as of June 30, 2022. Here the Secretary’s universal suspension of both loan payments and interest on student loans weighs against delving into such uncertainty at this stage. View "State of Nebraska v. Joseph Biden, Jr." on Justia Law
City of Ashdown, Arkansas v. Netflix, Inc.
The Arkansas Video Service Act of 2013 (VSA) establishes a statewide franchising scheme for authorizing video service providers to provide services in political subdivisions within the state. Netflix and Hulu were already providing online video streaming services prior to the passage of the VSA; they have not applied for certificates of franchise authority. The City of Ashdown, Arkansas, filed a putative class action against Netflix and Hulu in 2020, seeking both a declaration that they must comply with the VSA and damages for their failure to pay the required fee. The district court granted Netflix and Hulu’s motions to dismiss, concluding, among other things, that the VSA does not give Ashdown a right of action to bring this suit. Ashdown appealed, arguing that the district court misinterpreted the VSA. The Eighth Circuit affirmed. The court held that the fact that the VSA does not “prevent” a party from exercising a right does not, itself, confer a right. This provision is more logically read to preserve existing rights of action. The reference to “other laws” in the section title supports this conclusion. Further, the court wrote that the VSA does not establish such a “high duty of care” for video service providers, nor does it signal a strong public policy of protecting municipalities. Thus, the court concluded that recognizing a right of action would circumvent the intent of the VSA. View "City of Ashdown, Arkansas v. Netflix, Inc." on Justia Law
Christine Vitello v. Natrol, LLC
Plaintiff saw Cognium, a “nutraceutical” manufactured by Natrol, on sale. Cognium, according to Natrol’s advertising, improves memory and concentration. Its packaging stated that Cognium is “powered by Cera-Q, a natural protein from silkworm cocoons,” and can improve “Memory Recall Efficiency” by 90% when taken twice daily for four weeks. The box claimed that “nine clinical studies in adults, seniors and children showed statistically significant improvements in memory and cognition in 4 weeks or less when taken as directed.” Plaintiff filed a putative class action complaint against Natrol, seeking damages for herself and establishment of a National Class and Missouri Consumer Subclass. Plaintiff alleged that, prior to her purchases of Cognium, two of the nine clinical studies noted on its packaging had been retracted, including one for “data fabrication and falsification.” With Plaintiff’s individual claims dismissed, the court determined the sole named plaintiff could not represent the purported class and dismissed the entire action. On appeal, Plaintiff argued the district court erred in granting summary judgment dismissing her MMPA and unjust enrichment claims. The Eighth Circuit affirmed. The court explained that here Plaintiff purchased a product that expressly stated on the label it was “not intended to” do what she stated she purchased it for, serve as a substitute treatment for her prescription medication. Thus, for Plaintiff the actual value of the Cognium she purchased, and the value of Cognium without Natrol’s alleged marketing misrepresentations was “zero.” The benefit of the bargain rule does not apply in this situation, so Plaintiff cannot prove that she suffered ascertainable loss “as a result of” Natrol’s unlawful practice. View "Christine Vitello v. Natrol, LLC" on Justia Law