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Creech v. Emerson Electric Co.

United States District Court, S.D. Ohio, Western Division

April 5, 2018

ERNEST McCOWN CREECH, on behalf of himself and all others similarly situated, Plaintiff,
v.
EMERSON ELECTRIC CO., et al., Defendants.

          PROPOSED QUESTIONS FOR ORAL ARGUMENT

          WALTER H. RICE, UNITED STATES DISTRICT JUDGE.

         Oral 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:

         Jurisdiction 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.

         In 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?

         Choice of Law

         One of 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.

         Both 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?

         Defendants: Do you have any objections to the choice-of-law analysis provided by Plaintiff with respect to the various claims?

         Overbreadth of Proposed Classes/Standing

         Defendants 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? ...

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