Steven Goldsmith, on behalf of himself and all others similarly situated v. Lee Enterprises, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 21-3927
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Steven Goldsmith, on behalf of himself and all others similarly situated
lllllllllllllllllllllPlaintiff - Appellant
v.
Lee Enterprises, Inc., et al.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 22, 2022
Filed: January 11, 2023
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Before LOKEN, BENTON, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
Steven Goldsmith, a home-delivery subscriber to the St. Louis Post-Dispatch
daily newspaper (the “Post-Dispatch”), filed this putative class action for damages
against the owner and publisher of the Post-Dispatch1 in state court on May 14, 2019.
1Lee Enterprises, Inc., Lee Enterprises Missouri, Inc., St. Louis Post-Dispatch
LLC, and Pulitzer, Inc. (collectively, “Defendants”).

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Goldsmith alleges that Defendants “double-billed” him for “overlapping days” in
consecutive subscription invoices. Defendants timely removed the case to federal
court in June 2019 under the Class Action Fairness Act, alleging that Goldsmith is
seeking aggregate class-wide damages for the applicable five-year statute of
limitations period that exceed $5,000,000. See 28 U.S.C. § 1332(d)(6). Goldsmith
filed a First Amended Class Action Complaint alleging six claims for relief under
Missouri law: (1) Breach of Contract (Count I); (2) Breach of the Implied Covenant
of Good Faith and Fair Dealing (Count II); (3) Unjust Enrichment (Count III); (4)
Money Had and Received (Count IV); (5) Violation of the Missouri Merchandising
Practices Act (“MMPA”) by Unfair Practices (Count V); and (6) Violation of the
MMPA by Means of Deception (Count VI).
The district court2 granted summary judgment dismissing all claims.
Goldsmith appeals. We review the grant of summary judgment de novo, viewing the
facts in the light most favorable to the non-moving party. See, e.g., Chavis Van &
Storage of Myrtle Beach, Inc. v. United Van Lines, LLC, 784 F.3d 1183, 1193 (8th
Cir. 2015). “Where the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no genuine issue for trial.” Ricci v.
DeStefano, 557 U.S. 557, 586 (2009) (quotation omitted). Applying this standard of
review, we affirm.
I. Background
Goldsmith was a home-delivery subscriber to the Post-Dispatch from
September 2001 until he switched to a digital access account in August 2020. During
the time in question, the Post-Dispatch sent him pay-in-advance invoices on an eight-
week billing cycle, the period he selected. Each invoice referenced the “Due Date,”
2The Honorable Matthew T. Schlep, United States District Judge for the
Eastern District of Missouri.
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“Amount Due,” and the eight-week Term. The Term dates in some invoices included
dates that had been included in the previous invoice Term. These overlapping dates
are the basis of Goldsmith’s allegation that the Post-Dispatch double-bills
subscribers. When Goldsmith called to complain about overlaps, customer service
agents would apologize and issue credits. In May 2019, Goldsmith filed this class
action seeking damages for the allegedly unlawful and unethical billing practice.
After removal, both Defendants and Goldsmith moved for summary judgment
in October 2019, prior to class certification. District Judge Henry Autrey summarized
the competing legal theories in denying both motions, without prejudice, pending
further discovery. Defendants contend all claims fail because Goldsmith cannot show
loss or damage -- he received newspapers valued at $2,373.22 during the relevant
five-year period at his applicable daily rates, and he paid only $2,369.42 for those
newspapers. Goldsmith, on the other hand, argues “that each account statement
represents a separate unilateral contract between Plaintiff and Defendants.” By
sending a subsequent statement which included a date of service already billed and
paid, “Defendants breached the terms of the agreement made under the first statement
and committed the other wrongs alleged.”
Following additional discovery, Defendants filed a Renewed Motion for
Summary Judgment. The accompanying Statement of Material Facts in Support
explained the Post-Dispatch’s billing system, a system called DISCUS: DISCUS
generates subscriber invoices for newspapers it anticipates being delivered. When
a subscriber pays an invoice, the payment is posted to a running account dedicated
to that subscriber. Each Sunday, DISCUS deducts from the subscriber’s account an
amount equal to the daily rate for each newspaper delivered during the preceding
week. It never deducts the applicable rate twice for a single newspaper. If the
subscriber inadvertently pays a bill twice, the Post-Dispatch continues delivering
newspapers beyond the Term of the last bill and delays the start date of the following
Term. If the subscriber pays an invoice after its stated due date, as Goldsmith did at
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least six times, the Post-Dispatch continued delivering newspapers, as he expected.
When a subscriber requests a “vacation hold” after a bill is paid, the Post-Dispatch
does not deliver newspapers, delays commencement of the next Term (referred to as
a “gap”) and applies the unused portion of the paid bill to cover newspapers upon the
subscriber’s return. DISCUS generates bills with Term dates that, for various
reasons, either overlap with the prior Term’s dates or create a gap. In the past five
years, Goldsmith has received invoices that have gaps and invoices that have
overlaps. Goldsmith’s Response to these Statements of Material Facts was, “Not
controverted and not material.” The statements are not material, he explained,
because “Plaintiff’s claim relates to overlapping invoices he received from the Post-
Dispatch and paid for, not to how the Post-Dispatch internally accounted for his
payments.” His response to the Statements that he received newspapers valued at
$2,373.22 and paid only $2,369.42 was “Controverted and not material.”
In granting Defendants summary judgment, the district court noted that,
“[p]ost-discovery, Plaintiff obtained records showing how overlaps work and how
funds are credited and debited to his account. . . . Plaintiff can no longer conflate
overlaps as a factual basis to assert that Defendants were in fact ‘double-billing.’”
Despite Goldsmith’s allegation that the Post-Dispatch double-bills, “it is undisputed
by Plaintiff that DISCUS does not deduct the applicable rate twice for a single
newspaper.” Therefore, the court concluded, “there is no genuine issue for trial based
on Plaintiff’s failure to prove a necessary element of his [breach of contract] claim --
damages.” Goldsmith v. Lee Enters., Inc., No. 4:19-CV-1772-MTS, 2021 WL
5758434, at *1 n.1 (E.D. Mo. Dec. 3, 2021). Likewise, the fact that “Plaintiff has no
damages because he never paid twice for the same newspaper even though it may
have appeared that he did” defeats the third and fourth elements of his MMPA claim
-- “that the Post-Dispatch acted deceptively, and that Plaintiff suffered an
ascertainable loss as a result of any deception.” Id. at *5. Nor did sending Goldsmith
bills that included overlap days breach the implied covenant of good faith and fair
dealing because “the undisputed facts show the Post-Dispatch provided Plaintiff with
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the amount of newspaper content that he expected.” Id. And because the retaining
and use of overlapping payments to cover future newspapers was not unjust,
Goldsmith’s claims for unjust enrichment and money had and received “similarly
fail.” Id. at *6.
II. Discussion
On appeal, Goldsmith argues the district court erred in granting summary
judgment dismissing his breach of contract and MMPA claims because there are
genuine issues of material fact “whether overlaps cost subscribers money” and
whether Defendants’ billing practices violate the MMPA because “overlaps are
incorrect and wrong.” He asks that we remand for further proceedings but does not
separately address his implied covenant, unjust enrichment, and money had and
received claims. We therefore affirm the grant of summary judgment as to those
Counts without further discussion.3
Breach of Contract Claim. The elements of a breach of contract action are
(1) the existence and terms of a contract; (2) that plaintiff performed or tendered
performance pursuant to the contract; (3) breach of the contract by the defendant; and
(4) damages suffered by the plaintiff. See, e.g., Keveney v. Missouri Military
Academy, 304 S.W.3d 98, 104 (Mo. 2010). The district court granted summary
judgment based on a finding that Goldsmith had not suffered any damages --
3In response to an alternative ground urged by Defendants that we need not
consider, Goldsmith argues in his Reply Brief that “there was at least a genuine issue
of fact regarding whether, as Plaintiff alleges, each invoice created a separate contract
when paid.” This issue was not timely raised on appeal. Though raised in the district
court, it did not affect the court’s summary judgment analysis. Under Missouri law,
“[a] course of dealing between parties and any usage of trade . . . give particular
meaning to and supplement or qualify terms of the agreement.” Mo. Rev. Stat.
§ 400.1-303(d) (2017).
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undisputed facts establish that Goldsmith cannot show loss or damage because he
received every newspaper for which he paid and never paid twice for any of them.
Goldsmith argues the court erred by relying on uncontroverted evidence of how the
Post-Dispatch “handled subscribers’ payments internally,” while ignoring evidence
Goldsmith presented that “gives rise to an inference that overlaps cost subscribers
money.” He relies on three types of circumstantial evidence.
First, he argues that the day-to-day responses to overlap problems by Post-
Dispatch employees demonstrates that overlaps cost subscribers money. In 2019, for
example, Astrid Garcia, Lee Enterprises’s in-house attorney, sent an email to the
Missouri Attorney General after the Attorney General’s Office forwarded a subscriber
complaint about receiving a Post-Dispatch bill with an overlapping date. Ms. Garcia
wrote, “The method we use to synchronize dates did not work causing [the
subscriber] to receive another invoice with the wrong date. His account has been
corrected and new invoice with the corrected dates has been sent to him. These
changes make [the subscriber] whole.” By using the phrase “make whole,”
Goldsmith argues, the Post-Dispatch admitted that overlaps cost subscribers money.
Similarly, when Goldsmith called the Post-Dispatch in 2018 to complain about an
overlap, a customer service representative, consistent with the customer service
training manual, apologized for the error, said it occurred because they “messed up
on the start date,” and credited his account with $18.
Recognition by the Post-Dispatch that its billing system lacked transparency
and that unexplained overlaps generated subscriber complaints that needed to be
satisfied does not create a genuine fact dispute about whether “overlaps cost
subscribers money.” Goldsmith came forward with no concrete evidence that any
subscriber, including those who complained, ever paid twice for the same newspaper.
Evidence the Post-Dispatch attempted to fix overlap issues and apologized for the
error when customers complained does not negate this undisputed fact. Failing to fix
the problem may have been bad customer relations, but it does not establish the
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damage element of a breach of contract claim. Goldsmith based his claim on
customer perception. The district court based its loss and damage decision on
undisputed facts.
Second, Goldsmith argues that deposition testimony of three of Defendants’
witnesses create a genuine issue of disputed fact about whether overlaps cost
subscribers money. Like the district court, we disagree. Each witness repeatedly
stated that DISCUS has never double-charged a customer. Don Hesse, the Post-
Dispatch’s Vice President of Human Resources, Labor, and Operations, and Patricia
Helfrich, a customer service manager, confirmed that subscribers have sometimes
paid consecutive bills with overlapping dates. But Hesse testified, consistent with his
Declaration in support of Defendants’ motion for summary judgment, that “[t]he Post-
Dispatch doesn’t charge any account twice for the same day.” And Helfrich, asked
about the subscriber who complained to the Missouri Attorney General, stated “I
don’t agree with his terminology that he’s getting charged twice for the same product
because he is not.” Consistent with his theory of the case, Goldsmith takes isolated
answers out of context and equates subscribers paying overlapping bills with
subscribers being charged twice for the same newspaper. This conflating does not
create a genuine issue of material fact whether a DISCUS system that generated the
appearance of some billing overlaps caused actual loss or damage to subscribers.
The most interesting example of these repeated efforts to equate subscriber
perception with economic injury is a portion of the videotaped deposition testimony
of Courtney Wright, a self-employed software architect whose company was hired by
Defendants to support the DISCUS system and to provide data conversion services
needed to migrate data from the DISCUS format to the format required by the
NEWSCYCLE Solutions newspaper circulation software. Many of Wright’s
seventeen newspaper clients previously used DISCUS. In the initial cross
examination, Wright explained his extensive efforts -- never entirely successful -- to
eliminate overlaps that were causing subscriber complaints because “bills can appear
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to be incorrect when in fact they’re not technically mathematically incorrect.” On
page 196 of the 201-page deposition transcript, counsel for Defendants asked Wright:
Q Do you know what double billing is?
A Yes.
Q What is double billing?
A Double billing is when if I were to get a bill from the power
company and if I pay it, and they turn around and bill me again for that
same amount of power I would consider myself to be double billed for
that.
Q Are you aware of any situation in your years dealing with
DISCUS where DISCUS has double billed a subscriber for newspapers
that he or she received?
MR. CORNFELD: Object to the leading form of the
question. Object to lack of capacity, and object that this calls for an
opinion, go ahead.
THE WITNESS: The design of DISCUS is such that the
subscriber’s money is not in terms of billing, utilized in the same way
that it is for the power company. When the power company sends me
a bill that’s for service already rendered and I pay that bill.
If they bill me again for service already rendered, then that would
be paying twice. If a customer gets [two bills in DISCUS that include
an overlap and] if they paid both of those bills, even though it appears
that they’ve paid twice. . . . Both of those bills will have a cumulative
effect on the calculation of the expiration date, and therefore the second
payments extends their expiration date out an additional term. So it’s
technically not possible for double billing to have a double charging
effect on a subscriber.
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At the end of counsel for Defendants’ questioning, counsel for Goldsmith followed
up on this exchange:
BY MR. CORNFELD:
Q Sir, you said that if the power company would send you the
same bill a second time for the same amount of power you would
consider that to be double billing correct?
A Yes.
Q And what the newspaper does when it has an overlap is it
sends a bill to the customer for the same newspaper that the customer
has already paid for in response to a previous bill correct?
MR. MARTINEAU: Object to the form.
THE WITNESS: The overlap makes it appear that way yes.
BY MR. CORNFELD:
Q It doesn’t just make it appear that way, it is that way. The
customer receives a bill for a certain period called a term. And the
customer pays that bill. And then the customer may get a second bill,
and on that second bill is a term with dates and if those dates include
dates from the previous bill and the customer pays that second bill, the
customer is paying for newspapers that the customer paid for in
response to the first bill correct?
A Yes.
(Emphasis added.)
In its Memorandum and Order, the district court quoted Wright’s above-
highlighted “it’s not technically possible” statement, along with testimony by other
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Post-Dispatch witnesses who distinguished between subscriber perception and
economic harm, as establishing that the alleged double billing by the DISCUS billing
system was not evidence that subscribers were damaged by paying twice for the same
newspaper. On appeal, Goldsmith argues that Wright’s affirmative answer to
counsel’s above-highlighted question is evidence that creates a genuine issue of
material fact whether overlaps cost subscribers money and therefore summary
judgment dismissing his contract and MMPA claims must be reversed. We disagree.
In the first place, Goldsmith’s counsel objected that outside contractor Wright
lacked the capacity to give an opinion that DISCUS software does not have a double
charging effect on a subscriber, yet he now relies on Wright’s inconsistent response
to another question asking for the same opinion. Goldsmith cannot have it both ways.
Second, the question to which Wright answered “yes” was improper in form -- it
asked whether Wright agreed with a long convoluted statement that was inconsistent
with Wright’s prior testimony. Defendants’ attorney objected to the form of the
immediately preceding question. Wright probably should have been instructed not
to answer this question unless it was reformulated. In any event, its usefulness at trial
for any purpose other than impeachment is doubtful at best. Finally, even taking
Wright’s alleged admission at face value, it does not create a genuine dispute about
a material fact on the issues of loss and damages. In 200 pages of deposition
testimony, Wright consistently described his extended efforts to eliminate overlaps
and gaps from DISCUS billing because they generated understandable subscriber
complaints, while explaining at length why overlaps occurred, how they were
“corrected,” and why they did not result in subscribers being charged twice for the
same newspaper, or paying for newspapers they did not receive. Customer perception
can make people mad enough to sue, but it takes proof of ascertainable loss or
damage to recover for breach of contract or an MMPA violation under Missouri law.
Third, Goldsmith argues there are disputes and inconsistencies in the way
Defendants determined, from an analysis of Goldsmith’s individual account, that he
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did not pay for more newspapers than he received. The calculation errors Goldsmith
alleges range from inclusion of an undelivered paper worth $0.63 to the exclusion of
$78.24 in credits. “The jury should decide, Goldsmith argues, whether he in fact paid
more than the sum of the Post-Dispatch’s charges.” The problem with this contention
is that it is immaterial to the breach of contract and MMPA class action damage
claims Goldsmith asserted. Whether credits and charges unique to his individual
account resulted in him paying a few dollars more or less than the value of the papers
he received during the five-year damage period is not evidence that Post-Dispatch
subscribers paid twice for newspapers delivered on overlap days under the DISCUS
billing system. It might be evidence that Defendants made minor billing errors in
Goldsmith’s individual subscriber account. But that claim was not pleaded, no doubt
because it could not be pursued on a class-wide basis. The district court did not err
in granting Defendants summary judgment dismissing the claims Goldsmith asserted
despite his belated raising of this unpleaded contract claim.
MMPA Claims. To prove an MMPA claim under Mo. Rev. Stat.
§ 407.025.01, Goldsmith must show that he “(1) purchased merchandise . . . from [the
Post-Dispatch]; (2) for personal, family or household purposes; and (3) suffered an
ascertainable loss of money or property; (4) as a result of an act declared unlawful
under the [MMPA].” Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 311 (Mo.
App. 2016). The ascertainable loss element incorporates Missouri’s “benefit of the
bargain” common law fraud remedy. See Vitello v. Natrol, LLC, 50 F.4th 689, 693
(8th Cir. 2022). The benefit of the bargain is “the difference between the value of the
product as represented and the actual value of the product as received.” Thompson
v. Allergan USA, Inc., 993 F. Supp. 2d 1007, 1012 (E.D. Mo. 2014).
Counts V and VI of the First Amended Class Action Complaint alleged that the
Post-Dispatch, by double-billing days included in two separate invoices, violated the
MMPA by breaching its “duty not to engage in an unethical or unfair practice in
connection with the sale of any merchandise.” The district court granted summary
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judgment dismissing this claim. Goldsmith “has no damages,” the court explained,
“because he never paid twice for the same newspaper even though it may have
appeared that he did.” Goldsmith, 2021 WL 5758434, at *5. The court further
observed “the record shows [that] overlaps are not ‘incorrect,’ ‘wrong,’ or bad
policy. . . . these facts defeat the third and fourth elements of this claim: that the
Post-Dispatch acted deceptively, and that Plaintiff suffered an ascertainable loss as
a result of any deception.” Id.
On appeal, Goldsmith argues there is a genuine issue of material fact as to
whether overlaps are incorrect or wrong, and therefore an MMPA unfair practice. He
asserts that Post-Dispatch employees acknowledged that overlaps were wrong and
were errors needing correction in responding to subscriber complaints and to the
Attorney General’s inquiry, and they spent years attempting to fix this part of the
DISCUS system.
All that may be true, or at least debatable, but it does not address the district
court’s conclusion, based on Defendants’ uncontroverted Statement of Material Facts,
that Goldsmith cannot show he suffered “an ascertainable loss . . . as a result of” the
alleged unlawful billing practices. § 407.025.01. After being afforded extensive
discovery, Goldsmith failed to controvert Defendants’ evidence showing that
DISCUS properly deducts (amortizes) from a subscriber’s payment-in-advance the
applicable rate charged as each newspaper is delivered. As the district court noted,
“the Post-Dispatch’s billing practice could have been more transparent . . . but as a
matter of law this is not a violation of the MMPA.” Goldsmith, 2021 WL 5758434,
at *5. Because Goldsmith cannot establish the ascertainable loss element of an
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MMPA claim, we need not address his additional argument that the Post-Dispatch’s
billing practices are unfair or unethical.
III. Conclusion
The judgment of the district court is affirmed.
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