United States District Court, E.D. Missouri, Eastern Division
IN RE EMERSON ELECTRIC CO. WET/DRY VAC MARKETING AND SALES LITIGATION, THIS DOCUMENT APPLIES TO: ALL ACTIONS
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the court on the named Plaintiffs'
motion to certify a class, [Doc. No. 115]. This is an action
for violations of the Missouri Merchandising Practices Act,
Mo.Rev.Stat. § 1407.010, et seq., breach of
express warranty, breach of implied warranty, unjust
enrichment, violations of consumer protection laws in various
states for subclasses and breach of implied
warranty-redhibition on behalf of the Louisiana subclass.
to the class certification issue are plaintiffs'
allegations that defendant misled the public, including
plaintiffs, into purchasing or paying more for
defendant's product, the RIGID wet/dry vacuum, that it
did not perform as expressly and impliedly marketed through a
national and uniform advertising campaign. The marketing was
based on the stated wet/dry vacuum's “Peak
HP.” Plaintiffs allege the vacuum cannot attain the
advertised horsepower in a standard, household electrical
plaintiffs now seek certification under Missouri law, or
alternatively with subclasses for the different home states
of the various plaintiffs. This case presents the classic
case for treatment as a class action: that is, the
commonality linking the class members is the dispositive
question in the lawsuit. The issue of liability predominates
over whatever individual inquiries will have to be performed
to determine damages.
Court must initially determine what state's law applies
in order to ascertain whether the class certification
requirements have been met. “District courts sitting in
diversity apply the choice-of-law rules of the state where
they sit.” Winter v. Novartis Pharm. Corp.,
739 F.3d 405, 410 (8th Cir. 2014). Missouri follows the
“most significant relationship” test from the
Restatement (Second) of Conflicts of Laws § 145 for
resolving choice-of-law questions. Zafer Chiropractic
& Sports Injuries, P.A. v. Hermann, 501 S.W.3d 545,
550 (Mo.Ct.App. 2016). The factors to be considered under
§ 145 are: (1) the place where the injury occurred, (2)
the place where the conduct causing the injury occurred, (3)
the domicil, residence, nationality, place of incorporation
and place of business of the parties, and (4) the place where
the relationship, if any, between the parties is centered.
Am. Guarantee & Liab. Ins. Co. v. U.S. Fid. &
Guar. Co., 668 F.3d 991, 996 (8th Cir. 2012) (citing
Thompson by Thompson v. Crawford, 833 S.W.2d 868, 870
(Mo. 1992)). The most important contact is the center of the
parties' relationship. See Restatement (Second)
of Conflict of Laws § 221 cmt. on subsec. (2).
seek to have this action decided pursuant to Missouri Law,
except with respect to their redhibition claim under
Louisiana statutes, where plaintiffs seek to certify a
sub-class. Defendant argues that the law of the states
represented by the individual plaintiffs applies.
analysis is not complicated here. The Court will consider
each of the Restatement factors. With respect to the place
where the injury occurred, the Court finds this factor in
favor of the laws of the separate states. Plaintiffs claim
they have been injured by the representation of peak
horsepower. This alleged injury necessarily occurred in the
plaintiffs' home states where they purchased the wet/dry
vacs. This factor favors application of the various state
laws where plaintiffs reside.
claim that the conduct causing the injury was defendant's
advertising a peak horsepower that was not accurate. The
development and implementation of the advertising campaign
occurred at defendant's place of business, which is in
St. Louis, Missouri. Thus, the conduct causing the injury
favors application of Missouri law.
domicils, residences, place of incorporation and place of
business of the defendant are in different states, thereby
rendering this factor essentially neutral.
the place where the relationship, if any, between the parties
is centered, the most important contact, this factor favors
application of Missouri law since the central issue of the
case, whether the advertisement campaign is misleading,
originated in Missouri.
in relation to the Missouri Merchandising Practices Act
(MMPA), Defendant argues that Perras v. H & R
Block, 789 F.3d 914 (8th Cir. 2015) resolves the issue
against application of the MMPA.
The MMPA makes unlawful “any deception, fraud, false
pretense, false promise, misrepresentation, [or] unfair
practice ... in connection with the sale or advertisement of
any merchandise in trade or commerce ... in or from the state
of Missouri.” Mo. Stat. § 407.020.1. The law
allows a private civil action to be filed by “[a]ny
person who purchases or leases merchandise primarily for
personal, family or household purposes and thereby suffers an
ascertainable loss of money or property ... as a result of
the use or employment by another person of a method, act or
practice declared unlawful” by the MMPA. Mo. Stat.
§ 407.025.1. That civil suit may be brought “in
either the circuit court of the county in which the seller or
lessor resides or in which the transaction complained of took
place.” Id. The MMPA also expressly allows for
a class-action suit, under which the plaintiffs may recover
damages, an injunction, or other equitable relief.
Id. § 407.025.2. Section 407.025.3 discusses
the methods and requirements for certifying a class action,
which mirror those listed in Fed.R.Civ.P. 23.
To decide whether Perras may bring the class-action claims in
this case under the MMPA, and thus whether common questions
of law predominate over individual questions, we must
determine if the tax-return services performed and paid for
outside of Missouri nonetheless constitute trade or commerce
“in or from the state of Missouri.” Mo. Stat.
§ 407.020. For the answer to that question of state law,
we look to the decisions of the state supreme court. See
Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 665
(8th Cir.2009). If the Supreme Court of Missouri has not
decided the issue, we look to analogous state-court decisions
and precedent to predict how that Court would decide the
The Supreme Court of Missouri has described the MMPA's
language regarding unlawful merchandising as
“unrestricted, all-encompassing and exceedingly
broad.” Ports Petroleum Co. of Ohio v. Nixon,
37 S.W.3d 237, 240 (Mo. banc 2001). That court, however, has
not decided whether the language is broad enough to cover
transactions taking place outside of Missouri. The Missouri
Court of Appeals has concluded that the MMPA may reach
consumers in states other than Missouri who succumb to
fraudulent advertising or deceptive practices. State ex
rel. Nixon v. Estes, 108 S.W.3d 795, 801
(Mo.Ct.App.2003). In Estes, the fraudulent business
misleadingly advertised vending machines and fraudulently
promised tens of thousands of dollars in profit. Id.
at 796-97. But that business had numerous ties to Missouri:
It was in Missouri that the defendant had operated his
fraudulent business, received signed sales agreements and
wire transfers from the customers, held the ill-gotten gains
in Missouri bank accounts, and maintained company offices
from which he communicated with customers. Id. at
801. Those facts, the court ruled, showed that Estes had
advertised and sold the fraudulent machines “in trade
or commerce ... in or from the state of Missouri.”
Id. at 800-01 (quoting Mo. Stat. § 407.020.1).
Thus, the claims of those out-of-state plaintiffs could be
brought under the MMPA. Id. at 801.
In our case, there are no ties between the allegedly
fraudulent transactions and Missouri. Though true, as the
district court noted, H & R's headquarters are
located in Missouri; and there, it designed and implemented
the compliance fee. But every part of the transactions-the
activity for which the class action seeks relief-occurred in
each class member's home state. In those states, each
class member contacted and communicated with a local H &
R representative at a local H & R office, contracted for
tax-return services, and paid the allegedly deceptive
compliance fee. And it was in each class member's state
that H & R had displayed the purportedly fraudulent
“materials” explaining the compliance fee. The
evidence each class member would proffer to support her
claim, therefore, would be specific to her experience in her
state at her local H & R office. There is no other
connection between the claims in the class action and
Missouri; the acts of commerce that Perras grieves did not
occur in, or originate from, the State of Missouri.
See Mo. Stat. § 407.020.1.
We do not think this conclusion is inconsistent with the
Supreme Court of Missouri's generous description of the
MMPA. See Ports Petroleum Co., 37 S.W.3d at 240.
Though the statute may cover “every practice imaginable
and every unfairness to whatever degree, ”
id., that practice still must involve trade or
commerce “in or from the state of Missouri.”
Estes, 108 S.W.3d at 801; see Mo. Stat.
§ 407.020.1. This lawsuit does not challenge the mere
fact of creating the compliance fee-the only action that
actually occurred in Missouri. Perras would have no standing
to bring a claim for relief against H & R solely for
creating the fee. See Raines v. Byrd, 521 U.S. 811,
819-20, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (noting that,
to meet standing requirements of Article III, plaintiff must
allege a personal injury redressable by relief requested).
Instead, Perras seeks relief for H & R's charging of
the fee to consumers, transactions that took place outside of
Missouri between representatives of H & R located outside
of Missouri and consumers who reside outside of Missouri.
Accordingly, we believe the Supreme Court of Missouri would
conclude that the MMPA does not cover the out-of-state
transactions in this case. The law applicable to each class
member would be the consumer-protection statute of that
member's state. Thus, questions of law common to the
class members do not predominate over any individual
questions of law. See Fed.R.Civ.P. 23(b)(3). The
district court did not abuse its discretion in concluding
that the class action does not meet the predominance
requirement. With that conclusion, we ...