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Consumer Class Actions: 7. Class Actions Under the Massachusetts Tort Claims Act

The Massachusetts Tort Claims Act (MTCA) establishes the procedures for asserting tort claims against public employees and municipalities. Mass. Gen. Laws ch. 258, § 2. Specifically, the MTCA establishes that public employers “shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful acts or omissions of any public employee while acting within the scope of his office or employment.” Id. Class actions can be brought against public employers under the MTCA. Magliacane v. Gardner, 483 Mass.

Consumer Class Actions: MASSACHUSETTS RULES OF CIVIL PROCEDURE

Rule 23. Class Actions133

(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if

(1) the class is so numerous that joinder of all members is impracticable,

(2) there are questions of law or fact common to the class,

Consumer Class Actions: 1. Comparison with Rule 23 of the Federal Rules of Civil Procedure

Michigan’s General Court Rules of 1963 were substantially overhauled in 1983 with the enactment of the Michigan Court Rules.138 The Michigan Court Rules borrowed from a number of sources, including the Federal Rules of Civil Procedure and other states’ rules. MCR 3.501 varies in some respects from Fed. R. Civ. P. 23. For example, the requirements under Fed. R. Civ. P. 23(b)(3) apply to all Michigan class actions. MCR 3.501 also contains explicit provisions on statutes of limitations and the filing of counter claims.

Consumer Class Actions: 2. Case Law Interpreting MCR 3.501

Even though MCR 3.501 was enacted in 1983, there is a limited amount of case law interpreting some of the provisions of the newer rule. Cases under the former rule may be useful if the language was carried over from the previous rule. The Michigan appellate courts, recognizing the limited amount of law on some topics, suggest referring to federal cases on class certification. Neal v. James, 252 Mich. App. 12, 651 N.W.2d 181 (2002); Brenner v. Marathon Oil Co., 222 Mich. App. 128, 565 N.W.2d 1 (1997); Adelman v. Compuware Corp., 2017 WL 6389899 (Mich. App. Dec.

Consumer Class Actions: MICHIGAN COURT RULES

Rule 3.501 Class Actions139

(A) Nature of Class Action.

(1) One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if:

(a) the class is so numerous that joinder of all members is impracticable;

Consumer Class Actions: 1. Comparison with Rule 23 of the Federal Rules of Civil Procedure

Rules 23.01–23.10 of the Minnesota Rules of Civil Procedure are essentially identical to their federal counterpart, Rule 23 of the Federal Rules of Civil Procedure.140 Minnesota courts have held that “because of the substantial similarity between Minnesota’s class-certification rule 23 and the equivalent federal rule” Minnesota courts can look to federal precedent to interpret Rule 23. Bacon v. Bd. Of Pensions of the Evangelical Lutheran Church in Am., 930 N.W.2d 437, 440 (Minn. Ct. App. 2019).

Consumer Class Actions: 2. Case Law Interpreting Minnesota Rule 23

Minnesota courts interpret a class action as a protector of the individual’s rights by consolidating the claims into one action. A class action serves to “take care of the smaller guy,” and provide relief “where the potential recovery is too small to justify individual litigation.” Peterson v. BASF Corp., 618 N.W.2d 821, 826 (Minn. Ct. App. 2000) (internal quotation marks omitted). Often, smaller claims, for example consumer cases, survive only by consolidation when brought against the defendant.

Consumer Class Actions: 3. Class Notice

For classes certified under Minnesota Rule of Civil Procedure 23.02(c)(3), the court must direct that notice be sent to class members informing them that a class has been certified. Minn. R. Civ. P. 23.03(b)(2). The purpose of the notice process is to inform class members that they have a choice whether to opt out of the class or to remain in the class and to provide sufficient information for class members to make that choice. Taqueria El Primo LLC v. Ill. Farmers Ins. Co. (Taqueria II), 630 F. Supp. 3d 1121, 1130 (D. Minn. 2022).

Consumer Class Actions: 3. Rule 23.06 Appeals

An application to appeal a class certification order must be filed within 30 days of filing of the order, as set forth in Minnesota Rule of Civil Appellate Procedure 105. Minnesota appellate courts review the district court’s denial or grant of class certification “for an abuse of discretion.” Bacon, 930 N.W.2d at 440. “[A] district court abuses its discretion if it adopts an incorrect legal rule or misapplies the rule 23 factors.” Id. at 443.

Consumer Class Actions: 4. Communication With Absent Class Members

Minnesota state courts provide no guidance on the issue of communications with absent or putative class members. There are no published decisions. The Eighth Circuit and the United States District Court for the District of Minnesota have recognized that, once a class is certified, absent class members are parties represented by class counsel under Federal Rule of Procedure 23. In re Potash Antitrust Litig., 896 F. Supp. 916, 920–21 (D. Minn. 1995).

Consumer Class Actions: MINNESOTA RULES OF CIVIL PROCEDURE

Rule 23. Class Actions

23.01 Prerequisites to a Class Action142

One or more members of a class may sue or be sued as representative parties on behalf of all only if

(a) the class is so numerous that joinder of all members is impracticable;

(b) there are questions of law or fact common to the class;

Consumer Class Actions: MISSISSIPPI

On May 17, 2018, the Mississippi Supreme Court denied a motion to amend Mississippi Rule of Civil Procedure 23 to permit state court class actions.152 The Mississippi Rules of Civil Procedure therefore still contain no section permitting class actions. While Rule 23 has been formally enumerated, it merely contains a simple caption: “Rule 23. Class Actions [Omitted].” Miss. R. Civ. P. 23. The Supreme Court of Mississippi recognized that it “intentionally omitted Rule 23, which would have covered class actions.” Marx v.

Consumer Class Actions: 3. Rule 52.08—General Considerations

An action may be maintained as a class action if all the prerequisites of subdivision (a) are satisfied and, in addition, one element of Mo. Sup. Ct. Rule 52.08(b) is met. St. Peters v. Gronefeld, 609 S.W.2d 437, 439 (Mo. Ct. App. 1980); State ex rel. Niess v. Junkin, 572 S.W.2d 468, 470 (Mo. banc 1978). The requirements of Mo. Sup. Ct. R. 52.08(a) include numerosity, commonality, typicality, and adequate representation.”[T]he party seeking class certification has the burden of proof.” Dale v. DaimlerChrysler Corp., 204 S.W.3d 151, 164 (Mo. Ct. App.

Consumer Class Actions: 4. The Trial Court Has Discretion in Certifying a Class

Determination of whether an action should proceed as a class action under Missouri Supreme Court Rule 52.08 ultimately rests within the sound discretion of the trial court. Plubell, 289 S.W.3d at 711; Doyle, 199 S.W.3d at 787; Union Planters, 142 S.W.3d at 735; Clark, 106 S.W.3d 483. See also McKeage, 357 S.W.3d at 599. A trial court need not hold a full evidentiary hearing before certifying a class. Byrd, 956 S.W.2d at 380.

Consumer Class Actions: 5. Due Process Considerations

Mo. Sup. Ct. R. 52.08(e) provides that “a class action may not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” See also Byrd, 956 S.W.2d at 377.

Consumer Class Actions: 6. Class Certification Is Appropriate Under Missouri’s Consumer Protection Statute

Like many states, Missouri has enacted a state consumer protection statute. The statute, referred to as the “Missouri Merchandising Practices Act,” R.S. Mo. § 407.010 et seq., or “MMPA,” proscribes a wide array of unfair activities and is broad in scope. Missouri courts have said that the “purpose of Missouri’s Merchandising Practices Act is to preserve fundamental honesty, fair play and right dealings in public transactions.” Schuchmann v. Air Services Heating & Conditioning, Inc., 199 S.W.3d 228, 233 (Mo. Ct. App. 2006).

Consumer Class Actions: 7. Tolling of Statute of Limitations

Missouri courts, like federal courts, recognize that the filing of a class action may toll the statute of limitations. Hyatt Corporation v. Occidental Fire & Casualty, 801 S.W.2d 382, 389 (Mo. Ct. App. 1990). Note that only the pendency of a Missouri class action has a tolling effect; pending class actions in other jurisdictions do not. City of Columbia v. Spectra Commc’ns Grp., LLC, No. ED109769, 2022 Mo. App. LEXIS 456, at *19 (Ct. App. July 19, 2022) (citing Rolwing v. Nestle Holdings, Inc., 437 S.W.3d 180, 184 (Mo. banc 2014)).

Consumer Class Actions: 8. Appeals Under Rule 52.08(f)

Under R.S. Mo. § 512.020(3) and Missouri Supreme Court Rule 52.08(f), orders granting or denying class action certification are of the type of order that may be appealed—so long as the Court of Appeals, in its discretion, permits such an appeal. R.S. Mo. § 512.020(3). See Craft v. Philip Morris Cos., Inc., 190 S.W.3d 368, 376 (Mo. Ct. App. 2005); see also Stagner v. Wells Fargo Bank, N.A., 632 S.W.3d 443, 446 n.1 (Mo. Ct. App. 2021) (citing Younker v. Inv. Realty, Inc., 461 S.W.3d 1, 13 (Mo. App. S.D. 2015)).

Consumer Class Actions: 9. Treatment of Arbitration Clauses With Class Action Waiver

In Brewer v. Missouri Title Loans, Inc., 323 S.W.3d 18 (Mo. banc 2010), the Missouri Supreme Court initially affirmed the trial court’s judgment insofar as it held that the class arbitration waiver was unconscionable and reversed that part of the judgment ordering that the claim be submitted to an arbitrator to determine suitability for class arbitration. Brewer v. Mo. Title Loans, Inc. 364 S.W.3d 486, 487 (Mo. banc 2012). The Missouri Supreme Court held that the appropriate remedy was to strike the entire arbitration agreement.

Consumer Class Actions: 10. Attorneys’ Fees

In Berry v. Volkswagen Group of Am., Inc., the Missouri Supreme Court upheld a trial court’s award of attorneys’ fees based on a lodestar amount of $3,087,320 and applying a multiplier of 2.0 for a total award of $6,174,640 for attorneys who successfully represented a class of consumers who sued Volkswagen Group of America Inc. over defective windows. 397 S.W.3d 425, 429 (Mo. banc 2013).

Consumer Class Actions: 11. Discovery on Class Members/Communication With Class Members

In Padberg v. Dish Network LLC, No. 11-04035-CV-C-NKL, 2014 U.S. Dist. LEXIS 48025 (W.D. Mo. Apr. 8, 2014), a class action was brought against Defendant DISH Network because DISH customers temporarily lost access to the FX channel and FOX regional sports networks from October 1, 2010, to October 28, 2010. DISH attempted to depose (1) any class member on whose testimony or statements class counsel relied; and (2) absent class members selected by DISH to balance the class member testimony on which class counsel/plaintiff relied. Id. at *2.