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O'Shaughnessy v. Cypress Media, LLC

United States District Court, W.D. Missouri, Western Division

July 13, 2015

ELIZABETH O'SHAUGHNESSY, MICHAEL O'SHAUGHNESSY, and RANDALL L. HENSLEY, Individually and on Behalf of Others Similarly Situated, Plaintiffs,
v.
CYPRESS MEDIA, L.L.C., Defendant.

ORDER DENYING CLASS CERTIFICATION

GREG KAYS, District Judge.

This putative class-action lawsuit alleges that Defendant Cypress Media, L.L.C. ("Cypress"), a newspaper publisher, unlawfully "double-billed" some of its subscribers. This lawsuit was originally filed in the Circuit Court of Jackson County, Missouri, and then removed to this Court pursuant to the Class Action Fairness Act, 28 U.S.C. ยง 1332.

Now before the Court is Plaintiffs' Motion for Class Certification (Doc. 67). Finding that Plaintiffs have not demonstrated that there are questions of law or fact common to the class, or that questions of law or fact common to the class predominate over questions affecting individual members, the Court DENIES the motion.

Factual Background

Defendant Cypress owns and operates three newspapers, the Kansas City Star ("the KC Star "), the Fort Worth Star-Telegram ("the Star-Telegram "), and the Belleville News-Democrat ("the News-Democrat "). The named Plaintiffs in this case are Elizabeth O'Shaughnessy, Michael O'Shaughnessy, and Randall Hensley.

Elizabeth and Michael O'Shaughnessy share one account with the KC Star and have been subscribers for approximately 25 years. They have spent about eight hours participating in this case, and they have not reviewed any filings since the initial petition.

Randall Hensley is the brother of Plaintiffs' counsel Jeff Hensley. He subscribed to the KC Star from October 12, 2009, to November 7, 2013. Randall Hensley has spent about three hours participating in this litigation, and, aside from reviewing the initial petition, he has not reviewed the motions or other filings in this case.[1]

None of the three have ever subscribed to, or purchased anything from, the Star-Telegram or the News-Democrat.

Plaintiffs' Petition alleges Cypress unlawfully double billed some of its subscribers by shortening the length of their subscriptions. It seeks compensatory damages for breach of contract (Count I), breach of implied duty of good faith and fair dealing (Count II), violation of the Missouri Merchandising Practices Act ("MMPA") (Count III), [2] and a claim for money had and received (Count IV).

From August 1, 2008, to August 1, 2013 there were approximately 363, 561 home delivery subscribers to the KC Star. Of these, 201, 122 were Missouri residents, 161, 814 were Kansas residents, and 625 were residents of other states. During this same period, there were 314, 358 home delivery subscribers to the Star-Telegram and 85, 394 home delivery subscribers to the News-Democrat. All of the former were Texas residents, and all of the latter were Illinois residents. The total number of home delivery subscribers to these three newspapers during this time period was 763, 313.

Home delivery newspaper subscriptions at each newspaper operate as follows. A subscriber initiates service through one of several methods, usually at one of many discounted introductory rates, and pays for an initial billing period or agrees to a monthly charge by a debit or credit card. (The monthly debit option is called "Easy Pay" by the KC Star and "EZ Pay" by the News-Democrat and the Star-Telegram ). Subscription service is ongoing and ends only when a subscriber cancels. After the introductory period expires, the subscription converts to a full-rate subscription for that frequency (number of days per week the subscriber receives a newspaper), and the subscriber is asked to select and pay for a new billing period. Subscription rates vary by newspaper.

Each paper uses multiple different forms, both written and oral, to explain to initial subscribers what the terms of the subscription are. When a subscriber's billing period is about to end, the subscriber receives a written subscription renewal notice that sets out the options for the next billing period. Each paper's renewal notice is slightly different. Some of these differences are merely differences in wording or format; others are substantive. Generally speaking, the renewal notice might include some language informing the subscriber of various terms affecting their subscription service, including charges for special editions of the paper, the ongoing nature of their subscription service, and other information. Again, the exact contents of the renewal notice varies by newspaper.

While the billing period on initial subscription documents and the Subscription Renewal Notices is for terms of weeks, months, a year, the subscription service itself is ongoing. As each newspaper is delivered, the subscriber is charged a debit to the amount deposited to the subscriber's account. For some subscribers, Cypress deducts charges for premium editions- occasional editions of the newspaper that include special content above and beyond that included in a typical newspaper edition, [3]-by shortening the subscriber's billing period. For example, if the subscriber's billing period were set to expire June 30, and then the subscriber receives a special edition, Cypress would shorten the billing period to June 27 (or whatever number of days that at the regular rate equaled the charge for the premium edition), to account for the premium edition. The customer-specific portion of the subscription renewal notice may or may not disclose the debits for premium editions.

The date on which the funds in the subscriber's account are expected to expire is referred to as the "paid-through" date or the "pays to" date. When funds in the account near the paidthrough date, a subscription renewal notice is sent prompting the subscriber to pay for the next subscription billing period.

As administered by Cypress, billing periods are estimates and flexible based on changes in delivery frequency, customer choice, and credits and debits that may accrue during the billing period. Credits may be given for missed papers, late delivery, poor delivery service, or to induce a customer to remain a subscriber. When a credit is added to a subscriber's account, the effect is to extend the number of days remaining in a billing period, which extends the paid-through date. Debits to an account, such as premium editions, shorten the paid-through date. It is unclear from the record whether any other events besides premium edition charges shorten the paid-through date.

Policies regarding receipt of, and charges for, premium editions vary by newspaper. Subscribers to the KC Star can opt out of receiving premium edition charges by calling customer service. Those who opt out receive the premium edition at the regular daily rate. Different subscribers were charged different amounts for premium editions based on variations in their normal daily rate. The KC Star changed its subscription renewal notice in March 2011.

Subscribers to the News-Democrat who select the EZ Pay option, which allows for automatic, recurring credit card billing, are not charged for premium editions. Until September 30, 2013, the Star-Telegram was on a carrier collect system where carriers were charged for premium editions and then were responsible for charging the subscriber whatever amount the carrier determined. Additionally, Cypress did not charge some subscribers on introductory promotional rates for premium editions.

With few exceptions, Premium Editions are only delivered to subscribers who already receive the paper that day as part of their normal delivery frequency. For example, if a premium edition is delivered on Thursday but the subscriber is on a Sunday-only delivery frequency, the ...


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