On July 21, the federal district court denied remand of a proposed class action against Build-A-Bear Workshop, Inc., rejecting the plaintiff’s attempt to remand based merely on Build-A-Bear raising lack of standing as an affirmative defense in its answer.  See Order Denying Motion to Remand, Ruby v. Build-A-Bear Workshop, Inc., No. 4:21-cv-01152-JAR (E.D. Mo. July 21, 2022).

The plaintiff originally brought the purported class action in Missouri state court, alleging that Build-A-Bear violated the Telephone Consumer Protection Act (“TCPA”) by, among other things, sending him and other purported class members unwanted text messages.  Build-A-Bear subsequently removed the case to the Eastern District of Missouri asserting federal question jurisdiction.  The plaintiff did not oppose removal at the time, and written discovery commenced.

After amending his complaint and Build-A-Bear answered, the plaintiff moved to remand the purported class action.  Specifically, the plaintiff pointed to Build-A-Bear’s affirmative defense and discovery responses, which claimed that the plaintiff has not suffered an injury-in-fact and thus lacked standing to pursue the action.  The plaintiff argued that those statements created doubt as to whether Build-A-Bear had met its burden of establishing the court’s subject matter jurisdiction, and that any doubts must be resolved in favor of remand. The court rejected the plaintiff’s arguments.  First, the court determined that Build-A-Bear had correctly asserted federal jurisdiction because under the “well-pleaded complaint rule,” a federal question was present on the face of the plaintiff’s complaint, namely the claim under the TCPA.  The court further held that raising lack of standing as an affirmative defense did not deprive the court of federal question jurisdiction.  It reasoned that Build-A-Bear’s affirmative defense “challenged the plaintiff’s standing to bring a claim under the TCPA and his ability to identify a compensable injury, not the plaintiff’s Article III standing or the Court’s jurisdiction.”

Ellen Choi

Ellen Y. Choi is a member of the firm’s Litigation and Investigations Practice Group. She represents clients in complex commercial disputes involving a range of issues such as business torts, consumer protection, and insurance recovery. Ellen also has experience in a range of…

Ellen Y. Choi is a member of the firm’s Litigation and Investigations Practice Group. She represents clients in complex commercial disputes involving a range of issues such as business torts, consumer protection, and insurance recovery. Ellen also has experience in a range of internal investigations, including workplace culture investigations. Ellen maintains an active pro bono practice.

Ellen is fluent in Korean and has experience advising Korean companies in litigation and investigation matters.

Prior to joining Covington, Ellen clerked for Judge Philip S. Gutierrez, U.S. District Court, Central District of California. Ellen was a management consultant in the pharmaceutical and biotech space before practicing law.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved…

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories for clients in the technology, entertainment, consumer product, and financial services industries. In addition, Kate has substantial experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), and common law and constitutional rights of privacy, among others.