United States District Court, S.D. Ohio, Western Division
ERNEST McCOWN CREECH, on behalf of himself and all others similarly situated, Plaintiff,
EMERSON ELECTRIC CO., et al., Defendants.
PROPOSED QUESTIONS FOR ORAL ARGUMENT
H. RICE, UNITED STATES DISTRICT JUDGE.
argument is currently scheduled for April 9, 2018, at 9:00
a.m., on Plaintiff's Motion for Class Certification, Doc.
#94. The Court would like counsel to be prepared to answer
the following questions, which are arranged by topic:
Defendants argue that, under Bristol-Myers Squibb Co. v.
Superior Court of California, 137 S.Ct. 1773 (2017),
this Court lacks personal jurisdiction over claims of
non-resident class members.
response, Plaintiff argues that Defendants have waived any
challenges to personal jurisdiction, and are barred by the
doctrine of judicial estoppel from asserting this argument.
Plaintiff. Do you agree that, but for the waiver and
estoppel arguments, Bristol-Myers Squibb would
prohibit this Court from adjudicating claims of non-resident
class members? Why or why not? Does it matter that
Bristol-Myers Squibb involved a state court
adjudicating only state law claims?
Defendants: Why do the doctrines of waiver and
estoppel not bar you from challenging personal jurisdiction
at this stage of the litigation?
the major issues appears to be whether the Missouri
Merchandising Practices Act applies extraterritorially.
Certification of a nationwide consumer protection class
hinges on this issue.
parties: Which of the cases cited in the briefs is most
directly on point and why?
Both parties: Applying Ohio's choice-of-law
rules to the state law claims, should the Court apply the law
of the states where the injury occurred, i.e., where
each class member resides? Or should the Court apply the law
of the state of Missouri, because it has a more significant
relationship to the claims?
Do you have any objections to the choice-of-law analysis
provided by Plaintiff with respect to the various claims?
of Proposed Classes/Standing
suggest that more than half of the proposed class members are
completely unaffected by the defect in the thermostats and,
accordingly, would obtain no benefit from any injunctive
relief ordered by the Court.
Plaintiff: Why should the Court reject this
argument? Does it matter that the majority of proposed class
members suffered no injury, and may not suffer any injury in
the future? ...