Downing et al v. Riceland Foods, Inc.

Filing 104

MEMORANDUM AND ORDER re:(5344 in 4:06-md-01811-CDP, 70 in 4:13-cv-00321-CDP) (See Full Order.) IT IS HEREBY ORDERED that plaintiffs' motion for class certification [# 70 ] is granted. IT IS FURTHER ORDERED that Class Plaintiffs Gray, Ritter & Graham, P.C., Wolf Haldenstein Adler Freeman & Herz, LLC, and Looper Reed & McGraw, P.C., are appointed as class representatives to represent the following class: All persons and entities that provided or paid for common benefit services, materials , and/or related expense items (except Defendant). IT IS FURTHER ORDERED that Patrick J. Stueve, Todd E. Hilton and Bradley T. Wilders, of Stueve Siegel Hanson LLP, 460 Nichols Rd. Suite 200, Kansas City, MO 64112, are appointed as Class Counsel. Signed by District Judge Catherine D. Perry on 03/19/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DON M. DOWNING, et al.,
Plaintiffs,
vs.
RICELAND FOODS, INC.,
Defendant.

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Case No. 4:13CV321 CDP

MEMORANDUM AND ORDER
This case comes before me on plaintiffs’ motion for class certification under
Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. The proposed
class members are lawyers and their clients who undertook a collective effort to
litigate their claims against Bayer related to contamination of the United States rice
supply by Bayer’s genetically modified rice. Plaintiffs allege that defendant
Riceland Foods used some of their litigation work product in prosecuting its own
claim against Bayer. The plaintiffs seek to certify a class of all “persons and
entities that provided or paid for common-benefit services, materials, and/or
related expense items (except Defendant).” They assert claims for unjust
enrichment and quantum meruit.

I conclude that Missouri law governs this case: Missouri has the most
significant relationship to both claims. The proposed class satisfies Rule 23(a) and
plaintiffs have shown that a Rule 23(b)(3) class is appropriate because common
issues predominate over individual issues. The central common issue in this case
is whether and to what extent Riceland was unjustly enriched, and because of the
way the class plaintiffs arranged their collective litigation efforts in the underlying
rice litigation, that common question predominates over any questions specific to
individual class members. This action is uniquely suitable for class certification,
and that form of litigation is superior to any other form. I will grant the motion for
class certification.
I. Background1
This dispute has its origin in the continuing multi-district litigation (MDL)
that began after the introduction of Bayer’s genetically modified rice into the
United States domestic rice supply.2 Thousands of Arkansas, Louisiana,
Mississippi, Missouri and Texas rice farmers (referred to as “producers”) and
others involved in the rice business (referred to as “non-producers”) filed suit
against various Bayer entities in federal and state court. Riceland Foods was
named as a defendant along with Bayer in more than 200 federal and state cases.
1

This background is stated only for the purposes of ruling on this motion and does not relieve
any party of its duty to prove facts at a later date.
2

See, generally, In re Genetically Modified Rice Litigation, Case No. 4:06MD1811 CDP.

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Riceland was also a plaintiff, in that it filed cross-claims and at least one separate
federal suit against Bayer. Riceland won a multi-million dollar verdict against
Bayer in an Arkansas state court case. Bayer and Riceland ultimately settled the
case for $92 million, and it is part of that recovery that plaintiffs seek in this case.
To make the MDL more manageable for the plaintiffs, this court appointed
Don Downing and Adam Levitt as Co-Lead Counsel of a leadership group of
attorneys. A common-benefit trust fund (the Trust) was ordered established to
compensate attorneys for services rendered on behalf of all the plaintiffs; Downing
and Levitt were named as Co-Trustees of the Trust. That order required that a
portion of any recovery obtained by plaintiffs in federal court cases be set aside
and contributed to the Trust. Non-producer plaintiffs, like Riceland, were to
contribute seven percent of any gross recovery for common-benefit attorney’s fees
and an additional three percent for common-benefit costs.3 The order allowed
contributions to the Trust to be made from recoveries in state court cases only if
ordered by the state court or if plaintiffs in those cases consented.
The Co-Lead Counsel and additional attorneys at their request (collectively,
the common-benefit attorneys) were directed to manage pretrial proceedings on
behalf of all MDL plaintiffs. Over the course of five years, the common-benefit
attorneys performed a variety of work, including, among other things, drafting a
3

Producer plaintiffs were assessed eight percent for fees and three percent for costs.

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master consolidated complaint against Bayer under the laws of five states;
successfully opposing Bayer’s dispositive motions, reviewing, coding, and
managing more than 2.8 million pages of documents; and taking or defending 167
depositions across the United States and internationally. They also conducted
three bellwether trials in this court; the trials resulted in plaintiffs’ verdicts under
the laws of Missouri, Arkansas, Mississippi, and Louisiana.
Riceland did not oppose establishment of the Trust. Initially the commonbenefit attorneys asked that I require state court plaintiffs to contribute to it, and
some parties – but not Riceland – filed briefs opposing that. I ultimately decided
that I lacked jurisdiction to order the state-court parties to contribute to the fund.
At one point, Riceland negotiated to obtain some of the common-benefit attorneys’
work product for use in its state cases in exchange for a share of its recovery
against Bayer. The negotiations over this “Joint Prosecution Agreement” occurred
between Riceland’s counsel and the MDL leadership group in St. Louis, Missouri,
as well as via email and telephone; the negotiations ultimately ended without
execution of a final agreement.
On December 6, 2012, this court ordered that the common-benefit attorneys’
expenses be paid from the Trust. Those expenses totaled less than the amount
collected by the fund’s three-percent cost assessment, and the Co-Lead Counsel
have proposed distributing the surplus on a pro-rata basis to the contributing

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parties.4 On the same date as the expenses order, this court also awarded up to $72
million in attorneys’ fees. However, only approximately $56.5 million of that
potential award has been obtained by the Trust.
The named Class Plaintiffs are three law firms who incurred legal fees and
advanced expenses while performing common-benefit work.5 They seek to
represent not only other law firms but also any other persons (such as clients) who
paid for common-benefit services and expenses.6 In addition to the law firm Class
Plaintiffs, the Co-Trustees of the Trust are also plaintiffs, suing on behalf of the
Trust itself.
The Co-Trustees and Class Plaintiffs sued Riceland for unjust enrichment
and quantum meruit.7 They allege that Riceland benefited from the commonbenefit attorneys’ work and seek restitution in the amount of ten percent of
Riceland’s gross recovery against Bayer. The Class Plaintiffs now ask that I
certify the following class:

4

See Downing Decl., July 18, 2014, ECF Doc. 71-1 at ¶ 28.

5

The law firms named as Class Plaintiffs are Gray, Ritter & Graham, P.C., of St. Louis,
Missouri; Wolf Haldenstein Adler Freeman & Herz, LLC, with offices in Illinois, New York,
New Jersey, Connecticut, and California; and Looper Reed & McGraw, P.C., a Texas law firm.
6

Some law firms passed the expenses on to the clients and some did not. See, e.g., Chaney
Decl., ECF Doc. 71-2 at ¶ 4 (stating firm paid three-percent cost assessment for at least one
client and so will its seek share of the surplus from the three-percent cost holdback).
7

The Court has jurisdiction over the case based on the Class Action Fairness Act, 28 U.S.C.
§1332(d)(2). See ECF Doc. 51, Order dated March 31, 2014.

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All persons and entities that provided or paid for common benefit services,
materials, and/or related expense items (except Defendant).
Defendant contends that the class certification is not appropriate because, it argues,
plaintiffs will be required to prove, on a plaintiff-by-plaintiff and item-by-item
basis, “what mix of Plaintiff(s) and class member(s) originated or paid for each
item of Alleged Work Product.”8
II. Discussion
“The class action is an exception to the usual rule that litigation is conducted
by and on behalf of the individual named parties only. To come within the
exception, a party seeking to maintain a class action must affirmatively
demonstrate his compliance with Rule 23.” Comcast Corp. v. Behrend, 133 S. Ct.
1426, 1432 (2013) (citations omitted); see also Luiken v. Domino’s Pizza, LLC,
705 F.3d 370, 372 (8th Cir. 2013) (citation omitted) (“[A] plaintiff has the burden
of showing that the class should be certified and that the requirements of Rule 23
are met.”). Rule 23 contains two subsections that must be satisfied.
Rule 23(a) sets out four threshold requirements for class certification: (1)
sufficiently numerous parties, (2) common questions of law or fact, (3) typicality
of claims or defenses, and (4) adequacy of representation. A class action plaintiff

8

Riceland brief opposing class certification, ECF Doc. 75 at p. 2.

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“must also satisfy through evidentiary proof at least one of the provisions of Rule
23(b).” Comcast Corp., 133 S. Ct. at 1432.
A. Rule 23(a) Requirements
A.1. Numerosity
Rule 23(a)(1) requires that “the class be so numerous that joinder of all
members is impracticable.” To be “impracticable” does not mean that joinder must
be impossible, but it does require a showing that it would be extremely difficult or
inconvenient to join all members of the class.” Morgan v. United Parcel Serv. of
Am., Inc., 169 F.R.D. 349, 355 (E.D. Mo. 1996). The Eighth Circuit has
established no specific rule as to the necessary size of a class, but it has directed
courts to consider several factors in determining whether joinder is feasible: the
number of persons in the class, the nature of the action, the size of the individual
claims, the inconvenience of trying individual suits, and any other factor relevant
to the practicability of joining all the class members. Emanuel v. Marsh, 828 F.2d
438, 444 (8th Cir. 1987), vacated on other grounds, 487 U.S. 1229 (1988).
Upon consideration of these factors, I conclude that the proposed class
satisfies the numerosity requirement. There are over 30 law firms that provided
common-benefit legal services, and over 5000 rice producers and non-producers
who had part of their settlements deposited into the Fund to pay for fees and
expenses. All would be members of the class. It is clear that joining each of the

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putative plaintiffs individually and trying separate suits for each would be
wasteful, duplicative, and time consuming. Joinder is impracticable, and so the
numerosity requirement of Rule 23(a)(1) is satisfied.
A.2. Commonality
The commonality required by Rule 23(a)(2) is that “there are questions of
law or fact common to the class.” The mere presence of factual differences will
not defeat the maintenance of a class action if there are common questions of law
uniting the class members’ claims. DeBoer v. Mellon Mort. Co., 64 F.3d 1171,
1174 (8th Cir. 1995); Glen v. Fairway Indep. Mortg. Corp., 265 F.R.D. 474, 478
(E.D. Mo. 2010). As the Eighth Circuit held in Paxton v. Union Nat’l. Bank,
commonality “does not require that every question of law or fact be common to
every member of the class . . . and may be satisfied, for example, where the
question of law linking the class members is substantially related to the resolution
of the litigation even though the individuals are not identically situated.” 688 F.2d
552, 561 (8th Cir. 1982) (internal citations and quotation omitted). While plaintiffs
must show that there are questions of law or fact common to the class, they need
not show that all issues raised by the dispute are common. Mosley v. Gen. Motors
Corp., 497 F.2d 1330, 1334 (8th Cir. 1974).
Applying these standards to plaintiffs’ proposed class, the court finds that it
satisfies the commonality component. Here, all plaintiffs will face a common legal

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question: whether an unjust enrichment or quantum meruit action may be based
upon the use of an attorney’s work product by a non-client. They also will face the
common issue of whether collateral estoppel will attach to this court’s previous
statement that Riceland “received a substantial benefit” from the common-benefit
work.9 The fact issues regarding whether Riceland used and benefitted from the
common-benefit work and the value of that work will be identical for each
plaintiff.
A.3. Typicality
Rule 23(a)(3) requires that “the claims or defenses of the representative
parties are typical of the claims or defenses of the class.” This requirement is
closely tied with commonality. Cf. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147,
157 n.13 (1982) (“The commonality and typicality requirements of Rule 23(a) tend
to merge.”). “Typicality” means that there are “other members of the class who
have the same or similar grievances as the Plaintiff[s].” Donaldson v. Pillsbury
Co., 554 F.2d 825, 830 (8th Cir. 1977) (citations omitted). The named plaintiffs
and the class members may be said to have similar grievances if they have been
subjected to the same allegedly unlawful treatment. Rentschler v. Carnahan, 160
F.R.D. 114, 116 (E.D. Mo. 1995).
9

See In re Genetically Modified Rice Litig., No. 4:06MD1811 CDP, 2011 WL 601627, at *1 (E.D. Mo.
Feb. 11, 2011).

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Here, each of the proposed class members would have essentially the same
grievances as the named plaintiffs – that Riceland had unjustly benefitted from
work for which they had paid or provided. I find that typicality has been
established.
A.4. Adequate Representation
The adequacy of representation requirement under Rule 23(a)(4) seeks to
discover conflicts of interest between named representatives and the class they
seek to represent. Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 625–26 (1997).
A class representative must be part of the class, possess the same interest, and
suffer the same injury as the prospective class members. East Tex. Motor Freight
Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977).
Here, the Class Plaintiffs have allegedly suffered the same harm and have
the same interests as the prospective class members: they have provided services
and/or paid for legal expenses as part of a pooled litigation group, and have not
been reimbursed for the use of those materials by Riceland. The Class Plaintiffs
have retained a third-party law firm with a record of successful complex-litigation
experience to represent the class in this suit, and there are no allegations of a
conflict of interest between the Class Plaintiffs and the proposed class. I find that
the adequacy component of Rule 23(a)(4) is satisfied.

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B. Rule 23(b) Requirements
Plaintiffs assert that this class is appropriate for certification under either
Rule 23(b)(3) or 23(b)(1). To certify a class action under Rule 23(b)(3), the court
must find that: 1) common questions predominate over any questions affecting
only individual members; and 2) class resolution is superior to other available
methods for the fair and efficient adjudication of the controversy. Fed. R. Civ. P.
23(b)(3). Defendants argue that 23(b)(3) is inappropriate because individualized
issues of fact predominate over any common issues.
When determining whether common questions predominate, the court must
conduct a “limited preliminary inquiry” to gauge whether, if the plaintiffs’
allegations are true, common evidence could establish a prima facie case for the
class. Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005) (citations
omitted). If making a prima facie case requires that members of the proposed class
must present different evidence for each member, then it is an individual question.
Id.
This prima facie inquiry, in turn, requires the court to first conduct a limited
choice of law analysis to determine which state’s law will apply. See E. Maine
Baptist Church v. Union Planters Bank, N.A., 244 F.R.D. 538, 545 (E.D. Mo.
2007). Compare In re St. Jude Med., Inc., 425 F.3d 1116, 1120 (8th Cir. 2005)
(overruling district court’s order certifying a class because the district court did not

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conduct a sufficient conflicts of law analysis before certifying the class), and
Thompson v. Bayer Corp., No. 4:07CV00017 JMM, 2009 WL 362982, at *7 (E.D.
Ark. Feb. 12, 2009) (holding individual issues predominated where each plaintiff’s
prima facie case depended upon state of citizenship).
This analysis is only necessary where the laws of the forum state materially
conflict with the laws of the other potential jurisdictions; without such a conflict,
there would be no constitutional harm in applying the forum state’s laws. See
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 816 (1985); see also In re St. Jude
Med., 425 F.3d at 1120. For the purposes of this analysis, I will assume that the
laws of the various states conflict.10 Cf. Rapp v. Green Tree Serv’g, LLC, 302
F.R.D. 505, 513–14 (D. Minn. 2014) (reciting differences among states’
approaches to unjust enrichment); Salmon v. Atkinson, 137 S.W.3d 383, 385 (Ark.
2003) (adopting Illinois approach and allowing quantum meruit claims by
contingency-fee attorney discharged prior to trial; noting different law in
Missouri); Dittfurth, David, Appendix: The Unjust Enrichment Cause of Action by
State, 54 S. Tex. L. Rev. 265, 265 (2012) (reciting the elements of unjust
enrichment for each state but Texas “because [of] the unsettled law of that state”).

10

Almost all of the Class Plaintiffs, their producer and non-producer clients, and Riceland are
from five states: Missouri, Texas, Arkansas, Mississippi, and Louisiana. The Wolf Haldenstein
Class Plaintiff and Co-Trustee Adam Levitt, and potentially some of the other class-member
lawyers, are from other states, and so it is plausible that the law of one or more other states might
be invoked if this action were split into individual suits.

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B.1. Choice of Law
A federal court sitting in diversity applies the choice-of-law approach of the
forum state. Nw. Airlines, Inc. v. Astraea Aviation Servs., Inc., 111 F.3d 1386,
1393 (8th Cir. 1997); see also Cicle v. Chase Bank USA, 583 F.3d 549, 553 (8th
Cir. 2009) (applying same rule in CAFA case). Missouri courts use the most
significant relationship test, as set forth in the Second Restatement of Conflicts of
Laws. See Dorman v. Emerson Elec. Co., 23 F.3d 1354, 1358 (8th Cir. 1994).
“Under this test, the identity of the state having the most significant relationship
will depend upon the nature of the cause of action and upon the particular legal
issue in dispute.” Id.
In the absence of governing state law, the Restatement sets forth seven nonexclusive factors that should be considered when determining which state’s laws to
apply:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Restatement (Second) of Conflicts of Laws § 6(2) (1971). These factors are given
different weight and are applied to different contacts, depending upon the cause of
action. See id. at cmt. on subsec. (2)(c).
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B.1.a. Missouri Law Applies to the Unjust Enrichment Claim
Missouri treats unjust enrichment as an action in restitution. Title Partners
Agency, LLC v. Devisees of Last Will & Testament of Dorsey, 334 S.W.3d 584,
587–88 (Mo. Ct. App. 2011). I therefore look to § 221 of the Restatement to
consider the following contacts when applying the factors from § 6:
(a) the place where a relationship between the parties was centered,
provided that the receipt of enrichment was substantially related to the
relationship,
(b) the place where the benefit or enrichment was received,
(c) the place where the act conferring the benefit or enrichment was
done,
(d) the domicil, residence, nationality, place of incorporation and
place of business of the parties, and
(e) the place where a physical thing, such as land or a chattel, which
was substantially related to the enrichment, was situated at the time of
the enrichment.
Restatement (Second) of Conflict of Laws § 221 (1971); see also Flynn v. CTB,
Inc., No. 1:12-CV-68 SNLJ, 2013 WL 28244, at *6 (E.D. Mo. Jan. 2, 2013)
(applying Restatement § 221 to unjust enrichment claim).
The contacts favor Missouri. The most important contact is the center of the
parties’ relationship. See Restatement (Second) of Conflict of Laws § 221 cmt. on
subsec. (2). The Class Plaintiffs’ and proposed class members’ relationship with
one another and with Riceland is based in Missouri, for that is the state in which
the MDL occurred and the state in which the MDL plaintiffs agreed (and were
ordered) to jointly share the work of preparing the cases. Riceland’s relationship

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with the class members, at least for the purpose of this action, arose from the MDL
case and from Riceland’s status as a plaintiff in the MDL.11 Riceland’s receipt of
the enrichment substantially relates to its status as an MDL plaintiff. The factors
set forth in § 6 of the Restatement support a decision to give the relationship
contact increased weight. For example, the interstate system needs a fair and
uniform method of determining which state’s laws should apply in circumstances
such as this, where parties were brought from disparate states into one district and
there made to litigate their claims together.
Choosing the governing law according to the relationship contact also
simplifies the determination of which law should apply. Restatement § 6 (g)
instructs the court to consider the “ease in the determination and application of the
law to be applied.” In this case, the legal work by which Riceland is alleged to
have been unjustly enriched occurred piecemeal across several states and
internationally. Under those facts, it would be taxing on the court to determine
precisely where the benefit was conferred or received. Accordingly, those contacts
are attributed little weight.
Contact (d) of the Restatement §221, which deals with location of the
parties, has little significance to the legal issue in dispute. The parties are from
11

Riceland asserts that many plaintiffs are members of its cooperative, based in Arkansas, but
even so, the relationship as it relates to this case arose from the MDL, not from their cooperative
membership.

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varied states, all of which except Missouri and Arkansas share little connection to
the other contacts. See Restatement (Second) of Conflict of Laws § 221cmt. on
subsec. (2) (according significance based upon the grouping of all parties in a
single state). Missouri has the most significant contacts with the plaintiffs’ unjust
enrichment action. Having determined that Missouri’s laws will apply to the
unjust enrichment claim, I now look to which law will govern the plaintiffs’
quantum meruit claims.
B.1.b. Missouri Law Applies to the Quantum Meruit Claim
Missouri courts apply § 188 of the Restatement to determine which state’s
laws should apply to a claim for quantum meruit, as such an action is treated as
quasi-contractual in that state. See Sachs Elec. Co. v. HS Const. Co., 86 S.W.3d
445, 454–55 (Mo. Ct. App. 2002); see also Fowler v. Scott, 164 S.W.3d 119, 120
(Mo. Ct. App. 2005) (“Quantum meruit is a remedy for enforcement of quasicontractual obligations.”). Section 188 emphasizes five contacts to be considered
alongside the § 6 factors: (a) the place of contracting, (b) the place of negotiation
of the contract, (c) the place of performance, (d) the location of the subject matter
of the contract, and (e) the domicil, residence, nationality, place of incorporation
and place of business of the parties. Restatement (Second) of Conflict of Laws §
188 (1971).

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Most of these contacts bear little significance to the legal issue in dispute.
The parties are from varied states, all of which except Missouri and Arkansas share
little connection to the other contacts, and so Contact (e), which deals with location
of the parties, does not favor a particular state. Cf. Restatement (Second) of
Conflict of Laws § 188 cmt. e (according significance based upon the issue and
extent grouped with other contacts). The record does not show that any actual
contract was entered between Riceland and any of the Class Plaintiffs or proposed
plaintiffs. Although the unexecuted Joint Prosecution Agreement stated that work
product materials would be provided between the Leadership Group and Riceland,
it does not show where the performance was to occur. Nor does the “location of
the subject matter of the contract,” favor any one state. This contact gains
significance where the contract deals with a “specific physical thing”, such as a
land or chattel, or protects against a “localized risk,” in which case a particular
state will have an interest in the contract. See § 188 cmt. on subsec. (2). Nothing
in the record ties the work product materials or other subjects of the Joint
Prosecution Agreement to a particular state. These contacts are accorded little
significance.
At one point, Riceland negotiated the terms of the Joint Prosecution
Agreement in Missouri. Riceland’s Missouri-based counsel also communicated
with various parties based in Missouri and other states by telephone and email.

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This contact favors Missouri, although its weight is diminished because of the
subsequent cross-state telephonic and email communications. See Restatement
(Second) of Conflict of Laws § 188 cmt. e. Nonetheless, because Missouri has the
most substantial relationship to the only contact attributed any significance, I will
apply Missouri law to the quantum meruit claims.
B.2. Evidence to Establish a Prima Facie Case
B.2.a. Issues Common to Plaintiffs’ Unjust Enrichment Claim
Predominate over Individual Issues
Having determined that Missouri’s law will apply to the plaintiffs’ unjust
enrichment claim, I will now look to whether each element of the claim can be
established through common evidence. To establish a right to restitution for unjust
enrichment, the plaintiff must prove (1) that the defendant was enriched by the
receipt of a benefit; (2) that the enrichment was at the expense of the plaintiff; and
(3) that it would be unjust to allow the defendant to retain the benefit. Title
Partners Agency, LLC v. Devisees of Last Will & Testament of Dorsey, 334
S.W.3d 584, 587–88 (Mo. Ct. App. 2011). “Unjust enrichment permits restitution
based upon the value of the benefit received.” Koepke Constr. v. Woodsage
Constr., 844 S.W.2d 508, 516 (Mo. App. 1992).
Riceland argues that plaintiffs must first identify which particular attorney
created each piece of work product and then identify which particular class
member paid for that particular piece of work. I do not agree that this kind of
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piece-by-piece fact-finding will be required. By pooling their resources, the MDL
plaintiffs and their lawyers achieved a great deal of efficiency in the prosecution
and ultimate settlement of all their MDL claims; because they undertook this joint
approach to the underlying litigation, they will not have to show that each
individual class member paid for specific things – instead they can show that they
jointly incurred the expenses that conferred a benefit on Riceland.
This case is easily distinguished from Harvell v. Goodyear Tire & Rubber
Co., 164 P.3d 1028, 1036 (Okla. 2006), relied on by Riceland. That case involved
a failed attempt to certify a class of plaintiffs defined as consumers who had each
contracted for oil changes and been charged a set fee for supplies, regardless of
what actual supplies had been used. Id. at 1031. The court held that individual
issues predominated, because the unjust enrichment claim required plaintiffspecific inquiries into what supplies were used, the cost of the supplies, what the
customer was told and whether the customer agreed to pay the fee, among others.
Id. at 1036. The plaintiffs in Harvell had not pooled their resources when they
took their cars in to be serviced.
The Harvell inquiries necessarily dealt with each plaintiff on an individual
basis. Here, individual attorneys and law firms created work product, but each
service was provided as part of a collective effort on behalf of all the MDL
plaintiffs to prosecute the MDL. To the extent that Riceland used any particular

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piece of work product, the plaintiffs need only show that it was created by the
common-benefit attorneys as part of that collective effort. The same may be said
for the common-benefit expenses. So far as any particular plaintiff was harmed by
Riceland’s use of the materials, the entire class was harmed.
Riceland is correct that the unjust enrichment claim will require a great
number of factual determinations related to its use of work product and value
received, but those inquiries will not focus on what each individual plaintiff paid.
Rather, they will focus on what Riceland did and what benefit it received – issues
that are common to the class. Plaintiffs have established that common issues of
fact predominate.
B.2.b. Issues Common to Plaintiffs’ Quantum Meruit Claim
Predominate over Individual Issues
“Quantum meruit is a remedy for the enforcement of a quasi-contractual
obligation and is generally based on the principle of unjust enrichment.” Lucent
Techs., Inc. v. Mid-W. Elecs., Inc., 49 S.W.3d 236, 241 (Mo. Ct. App. 2001)
(citation omitted). The essential elements are (1) benefit conferred by one party on
another, (2) appreciation or recognition by the receiving party of the fact that what
was conferred was a benefit, and (3) acceptance and retention of the benefit in
circumstances that would render that retention inequitable. Id.

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The parties’ briefs do not discuss quantum meruit separately from unjust
enrichment. The same reasoning applies as above, and I find that common issues
predominate.
B.3. Superiority of Class Resolution
The final inquiry to certify a class under Rule 23(b)(3) looks to whether
class resolution is superior to other available methods for the fair and efficient
adjudication of the controversy. Fed. R. Civ. P. 23(b)(3). Factors include (1) the
class members’ interests in individually controlling the prosecution or defense of
separate actions; (2) the extent and nature of any litigation concerning the
controversy already begun by or against class members; (3) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum;
and (4) the likely difficulties in managing a class action. Id.
These factors demonstrate the superiority of class resolution. The class
members lack any interest in individually prosecuting separate actions, and the
only other litigation involving the parties was filed by Riceland against some of the
original plaintiffs in state court after this action had commenced. The MDL is
based in this court, and I am familiar with my own common-benefit orders upon
which the class plaintiffs base many of their arguments. Finally, any difficulties in
managing this class action pale in comparison to the alternative.

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I will certify this class under Rule 23(b)(3), and so I do not need to reach the
Rule 23(b)(1) arguments.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for class certification
[# 70] is granted.
IT IS FURTHER ORDERED that Class Plaintiffs Gray, Ritter & Graham,
P.C., Wolf Haldenstein Adler Freeman & Herz, LLC, and Looper Reed &
McGraw, P.C., are appointed as class representatives to represent the following
class:
All persons and entities that provided or paid for common benefit services,
materials, and/or related expense items (except Defendant).
IT IS FURTHER ORDERED that Patrick J. Stueve, Todd E. Hilton and
Bradley T. Wilders, of Stueve Siegel Hanson LLP, 460 Nichols Rd. Suite 200,
Kansas City, MO 64112, are appointed as Class Counsel.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 19th day of March, 2015.

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