You might have been LED to believe that the Supreme Court has short-circuited the ability of plaintiffs to certify classes under Rule 23 based on the polarizing opinions this term, despite the continued surge of class action filings around the country. Bad puns aside, there are still classes being certified at the district court level, which may evidence a growing resistance to SCOTUS’s strict interpretations of Rule 23 (sorry, couldn’t help myself). For example, in Barfield v. Sho-Me Power Elec. Coop.., No. 11-cv-04321, 2013 WL 3872181 (W.D. Mo. July 25, 2013), Judge Laughrey of the U.S. District Court for the Western District, recently discussed the impact of individual damage inquiries when certifying a class of thousands of Missouri landowners against an electric cooperative for allegedly exceeding the scope of easements granted for power lines.
Here, the defendant, a local electric cooperative, had valid easements to transmit electricity over the properties owned by the named plaintiffs. The plaintiffs, however, alleged that the defendant and its subsidiaries separately created fiber optic cable capacity on their easements and then licensed that capacity for external, commercial telecommunications purposes, which plaintiffs allege exceed the scope of the easement and deprive them of valuable property rights. Plaintiffs proposed a damages theory based on the total value of fiber optic cable running through each class member’s land, with damages calculated on a periodic “rental” basis, rather than a one-time payment damages.
Although the entire opinion is well worth reading, one of the highlights of the opinion is the court’s discussion of this unique damages theory in light of the Supreme Court’s analysis in Comcast v. Behrend, which requires plaintiffs to “show that the method of calculating damages measures ‘only those damages attributable to that theory’ of injury asserted by the plaintiffs, and that the ‘damages are susceptible of measurement across the entire class.’” Id.; citing Comcast v. Behrend, 133 S.Ct. 1426, 1433 (2013). While the defendants contended that damages must be assessed on case-by-case basis depending on the individual characteristics or damages to each class member’s real property, the court rejected the theory, noting that it had previously denied the motion to strike plaintiffs’ expert testimony. The court also noted that plaintiffs were not claiming any physical damage to land or property arising out installation, only damages from the misuse of the easements.
Also worth mentioning is how the court addressed the Supreme Court’s admonition in Dukes that issues must be “capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S.Ct. at 2551. Although there were nearly 7000 easements were at issue, plaintiffs were able to demonstrate that there were seven general categories of usage based on the limiting language contained therein. Therefore, the court observed that it will “only need to engage in seven inquiries regarding the proper interpretation of the easement language” to determine “whether [d]efendants exceeded the scope of the easements.” Slip op. at *11.
To avoid overloading you with additional details of the decision, we’ll note again that the entire order is well worth reading for a review for its discussion of incidental damages, ascertainability and manageability. If you get a charge out of reading well-reasoned decisions, then this one will be sure to spark your interest.