The Western District of Missouri denied class certification in an action alleging three regional newspapers—the Kansas City Star, the Fort Worth Star Telegram, and the Belleville News-Democrat—unlawfully double billed some of their subscribers by shortening the length of their subscriptions. The named plaintiffs, subscribers to the Kansas City Star only, alleged that without providing proper notice, the newspapers deducted additional charges for special or premium editions of the newspapers, which resulted in overcharges and shortened subscription periods. They alleged contract-based claims and violations of the Missouri Merchandising Practices Act (MMPA), but also argued the billing practice violated the consumer-protection laws of the other states as well.
The district court denied certification for several reasons. First, one of the representative plaintiffs was plaintiffs’ counsel’s brother, which the court concluded created an untenable conflict of interest because a sibling cannot reasonably be expected to remain neutral between the interests of the class he seeks to represent and his brother/counsel.
Second, as to the remaining representative plaintiffs (a couple who shared one account subscription to the Kansas City Star), typicality, commonality, and predominance were lacking for at least two reasons:
(a) The subscription forms and practices varied materially among the three papers, and these plaintiffs subscribed only to the Kansas City Star. Thus, they could not represent subscribers of the other papers. “Evidentiary variables include: the paper the class member subscribed to, when and how the class member subscribed, the exact language used in the initial agreement, whether and how the subscription was renewed, and the exact language used to renew the agreement.”
(b) Even among Kansas City Star subscribers, all of the same individualized inquiries would remain, except for the specific paper to which the putative class members subscribed. “Even if Plaintiff proposed certifying a class of only Missouri residents who subscribed to the Kansas City Star, issues of law or fact common to the class would still not predominate over individual issues. Although the fact-finder would not have to inquire about which paper the class member subscribed to, the evidence used to answer the remaining questions would still be different for each class member.”
Finally, the court relied on a decision recently discussed on Classified: The Class Action Blog, Perras v. H&R Block, No. 14-2892, — F.3d —, 2015 WL 3775418 (8th Cir. June 18, 2015), for the proposition that “common questions of law d[o] not predominate over any individual questions in [a] class action which would have to be brought under multiple states consumer-protection statutes.” Thus, by attempting to raise class-wide claims concerning consumers of multiple states, the plaintiffs destroyed commonality and predominance because the distinct consumer-protection act of each state would cover the claims of its consumers. Not all claims would be governed by the MMPA.
O’Shaughnessy v. Cypress Media, LLC, No. 4:13-cv-0947-DGK (W.D. Mo. July 13, 2015).
