United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2964
                        ___________________________

                                   Chase Barfield

                              lllllllllllllllllllll Plaintiff

              Michael D. Biffle; Gina Biffle; Dwight K. Robertson

                      lllllllllllllllllllll Plaintiffs - Appellees

                      J. Carol Hutchens; Rowena Hutchens

                             lllllllllllllllllllll Plaintiffs

                                            v.

        Sho-Me Power Electric Cooperative; Sho-Me Technologies, LLC

                     lllllllllllllllllllll Defendants - Appellants

              KAMO Electric Cooperative, Inc.; K-PowerNet, LLC

                            lllllllllllllllllllll Defendants

                             ------------------------------

National Rural Electric Cooperative Association; Associated Electric Cooperative;
                  Association of Missouri Electric Cooperatives

                  lllllllllllllllllllllAmici on Behalf of Appellants
                                       ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                   ____________

                          Submitted: September 22, 2016
                             Filed: March 29, 2017
                                 ____________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       This case is about the scope of easements under Missouri law and the remedies
if easement holders exceed their rights. Sho-Me Power Cooperative held easements
to construct and operate an electric transmission line over thousands of parcels. In
1997, it decided to install fiber-optic cables alongside its electrical lines. Sho-Me
used the cables for internal communications. Sho-Me assigned the cables’ excess
capacity to a separate company, Sho-Me Technologies, LLC (Tech), to operate a
public-serving commercial telecommunications business. A putative class of owners
of land subject to Sho-Me’s easements sued Sho-Me and Tech for trespass and unjust
enrichment. The district court certified a class of landowners, granted the landowners
summary judgment on liability, and held a jury trial on damages. The district court
instructed the jury to award the landowners “the fair market rental value” of Sho-Me
and Tech’s use of the fiber-optic cable on the landowner’s land “for
commercial-telecommunications purposes.” The jury awarded the landowners over
$79 million.

       Sho-Me and Tech appeal the liability determinations, damages instructions,
evidentiary rulings, and class certification. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms the summary judgment on trespass liability and the class
certification, reverses the summary judgment on unjust-enrichment liability, vacates
the damages award, and remands.


                                         -2-
                                          I.

       Sho-Me is a rural electric cooperative (REC) governed by Missouri’s Rural
Electric Cooperative Law, Chapter 394 RSMo. Before 1992, Sho-Me got easements
across thousands of parcels in southern Missouri. These easements’ language varies.
They all grant Sho-Me the right to construct and operate an electric transmission line.
Some grant the right to construct appurtenances or do things “necessary and useful
to the enjoyment of the easement.” The district court broke the easements into
several categories, three at issue in this appeal: Category 1A (“Easements for electric
transmission line only or for electric transmission line with unspecified
appurtenances”), Category 1B (“Easements for electric transmission lines and
appurtenances which include specific references to communications equipment”), and
Category 1C (“Court orders condemning easements limited to electric transmission
lines and generic appurtenances or specifying related communications equipment”).
Sho-Me and Tech do not dispute the district court’s categorizations.

       As part of its electrical transmission operations, Sho-Me communicates with
unattended power substations. It used to do this by microwave radio frequencies.
But in 1995, the Federal Communications Commission announced that these
frequencies would no longer be available for utilities. In response, Sho-Me
developed a plan. It installed fiber-optic cables alongside its electrical lines, using
the cables for internal communications. It also formed Tech as a subsidiary company.
Sho-Me assigned Tech the cables’ excess capacity so Tech could offer commercial
telecommunications services to the public. Tech currently provides broadband
services to individuals and businesses across southern Missouri.

       In 2010 (in state court) and then in 2011 (in federal court), Michael and Gina
Biffle, Dwight Robertson, and Chase Barfield—owners of land subject to Sho-Me
easements—filed putative class actions against Sho-Me and Tech. They alleged
Tech’s use of the fiber-optic cable for public-serving telecommunications purposes

                                         -3-
was not authorized by the easements, making Sho-Me and Tech liable for trespass and
unjust enrichment. The district court certified a Rule 23(b)(3) class of “All persons
who own or owned land in Missouri underlying Defendants’ electric-transmission
lines that is burdened by an easement with either Defendant or their subsidiaries,
which easement does not contain an arbitration clause, and on or in which a
Defendant has licensed the fiber optic cable for commercial-telecommunication uses
or has used the fiber optic cable for commercial-telecommunication uses.” The
district court entered summary judgment against Sho-Me and Tech, holding them
liable for trespass and unjust enrichment on the Category 1A-C easements.1 The
landowners proceeded to a jury trial for damages on the unjust-enrichment claim
alone. The jury awarded the landowners $79,014,140 for the “fair market rental
value” of Sho-Me and Tech’s unauthorized use of the easements.

                                         II.

       Sho-Me and Tech contend that the district court erred in granting summary
judgment on liability because it misconstrued Missouri easement law. This court
reviews de novo the district court’s summary judgment decision. Walker v. Hartford
Life & Accident Ins. Co., 

, 973 (8th Cir. 2016). It also reviews de novo
the district court’s interpretation of Missouri law. 

Missouri
law, this court is “bound by the decisions of the Supreme Court of Missouri. If the
Supreme Court of Missouri has not addressed an issue, we must predict how the court
would rule, and we follow decisions from the intermediate state courts when they are
the best evidence of Missouri law.” Washington v. Countrywide Home Loans, Inc.,

, 957-58 (8th Cir. 2014). Since the parties do not point to any genuine
dispute of material fact, the question is whether Sho-Me and Tech’s use of the fiber-




      1
      The district court granted summary judgment to Sho-Me and Tech on
easements in the remaining categories.

                                         -4-
optic cable for commercial telecommunications makes it liable under Missouri law
for trespass and unjust enrichment.

                                          A.

       The landowners argue—and the district court found—that Sho-Me and Tech
are liable for trespass under Missouri law for exceeding the scope of Sho-Me’s
easements. This argument raises two questions. First, did Sho-Me and Tech’s use
exceed the scope of the easements? And second, if their use did exceed the scope of
the easements, was it a trespass?

                                           1.

       An easement is “a right to use the land for particular purposes.” St. Charles
Cty. v. Laclede Gas Co., 

, 139 (Mo. banc 2011); Farmers Drainage
Dist. of Ray Cty. v. Sinclair Ref. Co., 

, 748 (Mo. 1953) (“An
‘easement’ is not the complete ownership of land with the right to use it for all lawful
purposes perpetually and throughout its entire extent, but it is a right only to one or
more particular uses . . . .”). Some easements in Categories 1A-C explicitly refer to
a purpose with language like “for the purpose of transmitting electric or other power,”
“for electrification purposes,” “for electrical power utility and related communication
purposes,” “for the purpose of transmitting and supplying electric energy.” Other
easements do not explicitly state a “purpose,” but do specifically grant the right to
construct an electric transmission line.

       The parties agree that the easements give Sho-Me the right to install and use
fiber-optic cables for internal communications related to supplying electricity. They
disagree whether the easements give Sho-Me and Tech the right to use fiber-optic
cables installed on the easement land for commercial telecommunications purposes
unrelated to supplying electricity.

                                          -5-
       A Missouri statute, § 523.283 RSMo, governs the use of easements acquired
after August 28, 2006, by a utility or REC. It requires “appropriate consideration and
damages to the current owner of the property” for “Expanded use of the property
beyond that which is described in the instrument of conveyance or the condemnation
petition.” § 523.283.1. It defines “expanded use” to include “An increased footprint
or burden,” meaning “a different type of use or a use presenting an unreasonably
burdensome impact.” § 523.283.2(2).

       The closest case applying § 523.283 is Carroll Electric Cooperative Corp. v.
Lambert, 

(Mo. App. 2012). There, an REC petitioned to condemn
easements “to erect, operate, survey, maintain . . . one or more electric power
transmission and/or distribution line(s) and appurtenant communication lines . . . and
to license, permit, or otherwise agree to the joint use or occupancy of the line or
system by any other person, association or corporation for electrification or
communication purposes . . . .” 

(alterations in original) (emphasis omitted).
Landowners challenged the condemnation petitions. They conceded the REC could
install appurtenant communications lines, but argued that the “joint use or
occupancy” provision would permit the cooperative to allow a company like
Mediacom or Verizon to use the easements for communications purposes. 

The REC said that while “the joint occupancy provision in these easements allow
[sic] other electric cooperatives to buy and sell electricity to each other,” it did not
allow any non-electricity uses. 

The court agreed with the REC that
“any use other than for electricity is an expanded use of the proposed easements that
would be prohibited by § 523.283.” 

       Section 523.283 applies only to easements acquired after August 28, 2006, so
it does not govern Sho-Me’s easements. But Carroll Electric’s analysis is instructive
because § 523.283 does not change earlier law. The Carroll Electric court suggests
this by noting, “Landowners do not mention § 523.283, but instead rely on cases
involving expanded uses that predate the statute’s enactment in 2006.” 403 S.W.3d

                                          -6-
at 646 n.6, citing Eureka Real Estate & Inv. Co. v. S. Real Estate & Fin. Co., 

(Mo. 1947), and Ogg v. Mediacom, L.L.C., 

(Mo. App.
2004). See also Dale A. Whitman, Eminent Domain Reform in Missouri: A
Legislative Memoir, 

. Rev. 721, 753 (2006) (stating that § 523.283 “makes
no change in existing law at all”).2 See generally Mid-Am. Television Co. v. State
Tax Comm’n, 

, 679 (Mo. banc 1983) (explaining that while a new
statute generally changes the existing law, a statute can also simply clarify existing
law). Section 523.283 appears to codify the Missouri law on the use of easements
held by RECs and utilities.

       Pre-2006 Missouri case law, which controls this case, is fully consistent with
§ 523.283 and Carroll Electric. In Eureka, a street railway condemned an easement
for the “purpose of the railroad ‘together with all necessary sidetracks, turnouts,
stations, power houses, sheds, yards, poles, wires and other appliances and means
necessary and convenient for and appurtenant to the 

. The
Supreme Court of Missouri explained that this easement allowed the railway’s
successor to maintain a power line “to furnish power to streetcars.” 

that

      2
       The Missouri Court of Appeals has relied on Professor Whitman’s article to
determine the meaning of another part of the 2006 statute. See Planned Indus.
Expansion Auth. of Kansas City v. Ivanhoe Neighborhood Council, 

, 426-27 (Mo. App. 2010). A unanimous Supreme Court of Missouri has relied
on Whitman’s article to hold that a judicial remedy coexists with a remedy created by
the 2006 statute. See Clay Cty. Realty Co. v. City of Gladstone, 

,
864, 867-68 (Mo. banc 2008). One supreme court judge quoted Whitman’s article
to support the conclusion that some language in the 2006 statute “codified” case law.
See Centene Plaza Redevelopment Corp. v. Mint Props., 

, 436 n.2
(Mo. banc 2007) (Stith, J., concurring). In predicting how the Supreme Court of
Missouri would decide this issue, Whitman’s article is persuasive evidence of the
meaning of § 523.283. In any event, this court does not rest its determination that
§ 523.283 codifies earlier Missouri law solely on Whitman’s article. That
determination rests largely on the consistency between pre-2006 case law, and
§ 523.283 and Carroll Electric.

                                         -7-
the easement did not authorize the railway’s successor to permit an electric company
to construct an “additional power line” that had “no connection whatever with the
electric lines or purposes of the street railway.” 

Accord 

(cable TV company’s installation of fiber-optic cables not authorized by
electric cooperative’s prescriptive easement).

       The Eureka court quoted from dicta in St. Louis, I.M. & S. Ry. v. Cape
Girardeau Bell Telephone Co., 

(Mo. App. 1908), addressing an
easement use nearly identical to Sho-Me and Tech’s: where a “railroad right of way
consists of an easement only . . . and the telegraph is constructed thereon under a
contract with the railroad company for the purpose of serving the railroad in its
operations; but for the purpose, as well, on the part of the telegraph company, to serve
the general public as a commercial enterprise.” 

Under those
circumstances, “in so far as the telegraph company serves the purpose of the railroad,
its occupancy of the right of way easement is not an additional servitude or burden
upon the fee of which he may complain” because “such use is a legitimate
development for railroad purposes essentially contemplated in the grant of the
easement.” 

explained that use for the additional public-serving
telecommunications purpose would not be permitted:

      Nevertheless, in so far as the telegraph or telephone company thus
      rightfully occupying the right of way serves the general public as a
      commercial enterprise, distinct from the avocation of the railroad, it
      constitutes a use of the right of way easement other than for railroad
      purposes, and it is therefore a servitude not contemplated in the original
      grant and a burden upon the fee of which the adjacent owner may
      rightfully complain. It is obvious the transmission of intelligence by
      means of electricity to all the world who may be willing to pay for the
      service is not a railroad use, and such service is certainly not
      contemplated within the grant of the railroad right of way, for it is
      entirely disassociated therefrom.



                                          -8-


(quoting the first sentence of the above
block quotation).

       In 1966, the Supreme Court of Missouri again quoted Cape Girardeau
Bell—this time, a 250-word passage that includes the block quotation above. Kansas
City v. Ashley, 

, 592 (Mo. 1966), quoting Cape Girardeau 

. The Ashley court also said that Eureka “relied upon” the Cape
Girardeau Bell quotation. 

Bell’s rule, repeatedly reaffirmed by
the Supreme Court of Missouri, governs this case.

      Under Ashley, Eureka, and Cape Girardeau Bell, Sho-Me’s easements do not
authorize Sho-Me and Tech’s use of the fiber-optic cable to serve the general public
as a commercial telecommunications enterprise distinct from Sho-Me’s electricity
business. Sho-Me and Tech’s use of the landowners’ easements is indistinguishable
from the railroad and telegraph company’s use of the easement discussed in Cape
Girardeau Bell. In both cases, a cable can rightfully occupy the easement to serve the
purpose authorized in the easement. But that cable cannot also serve the general
public for purposes not authorized by the easement. That additional use—here,
Tech’s use for public-serving commercial telecommunications unrelated to electric
transmission—is an expanded use of the kind prohibited by § 523.238 and Carroll
Electric.

       Sho-Me and Tech invoke two additional doctrines—“same general character”
and “unlimited reasonable use”—to justify their use. First, they argue that public
telecommunications use was permitted because “the owner of land subject to a public
easement has no right to insist that the public use remain precisely the same, and if
the original use is changed to another of the same general character and no new or
other burdens are imposed, . . . the owner is not entitled to additional compensation.”
Riggs v. City of Springfield, 

, 1149 (Mo. banc 1939). As a
threshold matter, they cite no authority that Sho-Me’s easements are “public

                                         -9-
easements.” But even assuming Riggs’s “same general character” test applies here,
it does not authorize Sho-Me and Tech’s use. Riggs involved a city’s appropriation
of an easement to use a stream for sewer purposes. 

Although the amount
of sewage discharged into the stream varied over time, the city’s use was always
within the bounds of its easement. See 

Riggs supports only the notion
that a public easement authorizes an increased degree of use so long as it is of the
“same general character.” Sho-Me and Tech suggest that Riggs permits all uses
physically similar to those explicitly authorized by their easements. That suggestion
is incompatible with Eureka, Ogg, and Carroll Electric—all of which prohibited
physically similar or identical uses serving unauthorized purposes.

        Second, Sho-Me and Tech assert that their use is authorized because “an
easement granted or reserved in general terms without any limitations as to its use,
is one of unlimited reasonable use.” Mo. Pub. Serv. Co. v. Argenbright, 

, 783 (Mo. 1970); Maasen v. Shaw, 

, 518 (Mo. App. 2004). Sho-
Me can make unlimited reasonable use of the easements, so long as each “easement’s
use is limited to the purposes for which it was created.” 

.
See also Illig v. Union Elec. Co., 

, 977-78 (8th Cir. 2011) (explaining
that, under Missouri law, an easement can only be used for the purpose for which it
was created). Sho-Me and Tech are limited to using the easements for the purpose
of electric transmission.

       Sho-Me and Tech claim they are not restricted by the “original purpose” of the
easements, citing Henley v. Continental Cablevision, 

(Mo. App.
1985). Henley held that easements granted in 1922 to construct and operate “lines for
telephone and electric light purposes” authorized “the addition of a single coaxial
cable . . . for the purpose of transmitting television images.” 

The court
stated, “The owner of an easement may license or authorize third persons to use its
right of way for purposes not inconsistent with the principal use granted.” 

Noting that the cable did not exceed the scope of the intended and authorized use, it

                                         -10-
explained, “The expressed intention” of the plaintiffs’ predecessors in granting the
easements “was to obtain . . . the benefits of electric power and telephonic
communications.” 

Pointing out that the future development of cable
television was unforseen when the easements were granted, the court determined that
“the intention of plaintiffs’ predecessors was the acquisition and continued
maintenance of available means of bringing electrical power and communication into
the homes of the subdivision.” 

that the cable company could use
telephone easements, not simply because such use was “reasonable,” but because
cable television was within the easements’ (broadly defined) original purpose. Sho-
Me’s easements are unlike those in Henley and nearly identical to the Carroll Electric
easements. They do not indicate any intention to allow use for public-serving
telecommunications purposes. See 

(“Any doubt
concerning an easement’s scope should be resolved in favor of the servient owner’s
free and untrammeled use of the land.”). Sho-Me and Tech’s use for those purposes
exceeds the scope of the easements.

                                          2.

      Under Missouri law, “A trespass is a ‘direct physical interference with the
person or property of another.’” Hansen v. Gary Naugle Constr. Co., 

, 74 (Mo. banc 1990), quoting Mawson v. Vess Beverage Co., 

,
613 (Mo. App. 1943). “[I]f an easement holder, while lawfully on the servient land,
exceeds his rights under the easement in either the manner or extent of his use, he
becomes a trespasser to the extent of the unauthorized use.” Branson W., Inc. v. City
of Branson, 

, 607 (Mo. App. 1998). See also, e.g., Grider v. Tingle,

, 447 (Mo. App. 2010); 

; 

; Macios v. Hensley, 

, 752-53 (Mo. App. 1994). Sho-
Me and Tech argue that their use of the easements for telecommunications purposes
did not physically interfere with the landowners’ property and therefore is not a



                                        -11-
trespass. They say that the landowners complain only of invisible light pulses and
can point to no physical invasion of their property.

       Sho-Me and Tech miss the fact that the fiber-optic cable is itself on the
property, and when they exceed their rights by using it for unauthorized purposes,
their use of the cable becomes a trespass. This is precisely what Cape Girardeau Bell
says. Where a telegraph is used for purposes both authorized and not authorized by
the easement, the owner of the land burdened by the easement “may rightfully
complain” of uses for purposes not authorized by the easement. Cape Girardeau

. Sho-Me and Tech ask this court to ignore this language. But
this court’s task is to predict how the Supreme Court of Missouri would rule, and that
court has twice quoted Cape Girardeau Bell’s language, suggesting it would adopt
its approach. See 

(quoting and relying on full passage,
albeit for different purposes); 

(quoting and relying on key
sentence). Carroll Electric provides further evidence of how the Supreme Court of
Missouri would rule. It holds that § 523.283 prohibits “use” of an electric
transmission easement “other than for electric service.” Carroll 

. Sho-Me and Tech characterize Carroll Electric as discussing additional
cables, quoting from a single cross-examination question at trial. But Carroll
Electric’s analysis makes no mention of additional cables. Rather, it refers to “use”
of the easements. 

      Sho-Me and Tech also rely on an Eighth Circuit case holding that an excessive
use nearly identical to Sho-Me and Tech’s was not trespass under Arkansas law. Int’l
Paper Co. v. MCI WorldCom Network Servs., Inc., 

, 636 (8th Cir.
2006). There, a telecommunications company simultaneously used a railroad right-
of-way for both internal railroad communications purposes and public-serving
commercial telecommunications purposes. The court said it saw “no reason to
believe that Arkansas would recognize a claim for damages from an intangible
trespass of light signals.” 

of the Missouri courts, discussed above,

                                        -12-
indicate Missouri would recognize a claim for trespass where a cable installed on an
easement is used for purposes not authorized by the easement. This court is bound
to follow those Missouri court decisions, not a prior Eighth Circuit interpretation of
Arkansas law. The district court’s grant of summary judgment to the landowners on
Sho-Me and Tech’s trespass liability is affirmed.

                                          B.

      The district court found that Sho-Me and Tech’s excessive use of the easements
makes them liable for unjust enrichment. The parties dispute whether unjust
enrichment is an available remedy against entities with eminent domain power that
have used property without authorization. The Missouri Court of Appeals recently
thoroughly discussed the “body of law” “applicable to the subset of trespass actions
filed against utilities otherwise empowered with the right of condemnation.”
Sterbenz v. Kansas City Power & Light Co., 

, 7-10 (Mo. App. 2010).
It summarized the limited remedies available against those entities:

      When an entity otherwise entitled to exercise the power of eminent
      domain ignores that power and trespasses upon private land, the
      landowner has an election of remedies. The landowner ‘may proceed by
      way of injunction to restrain the installation; or he may sue in ejectment;
      or he may avail himself of [section 523.090]; or he may maintain a
      common law action for damages.’

(alteration in original) (footnote omitted) (citations omitted), quoting
Beetschen v. Shell Pipe Line Corp., 

, 70 (Mo. App. 1952). If property
owners sue for damages, they may sue for trespass or, alternatively, for inverse
condemnation. 

Sterbenz does not list unjust enrichment as an available
remedy.




                                         -13-
       The landowners say that Sterbenz’s silence on unjust enrichment is not a
rejection. But Sterbenz is not just silent. It says that landowners have “an election
of remedies” and lists four remedies. It makes little sense to say a plaintiff has an
election of four remedies if the plaintiff can elect a fifth. The landowners do not
identify any Missouri cases recognizing unjust enrichment as a remedy for
unauthorized land use. The closest they come is a case where an employee gave his
employer an idea for an invention, which the employer then used without paying him.
Dewey v. Am. Stair Glide Corp., 

, 648-49 (Mo. App. 1977). This
does not show that Sterbenz overlooked unjust enrichment as a remedy for trespass
to real property.

       Two other Missouri authorities corroborate Sterbenz. First, in Young v. Home
Tel. Co., 

(Mo. App. 1918), the Missouri Court of Appeals rejected
landowners’ attempt to sue—“based upon a contract implied by law”—a telephone
company that installed unauthorized poles. 

Young held that this claim was
not allowed:

      It is clear where one takes and occupies the land of another as a
      trespasser, the law does not imply an agreement on the part of such
      trespasser to pay for such use and occupation. If it did, then a suit for
      use and occupation, based merely upon such use and occupation, could
      be maintained. But, as stated, the rule in our state is that such a suit
      cannot be maintained unless the relation of landlord and tenant, express
      or implied, exists between the parties. In other words, there must have
      been a prior mutual agreement existing between the parties or their
      privies to pay for such use and occupation, else a suit therefor cannot be
      maintained.

The court of appeals assumed the suit was “not one for the use and
occupation of land” directly, but rather one based on an implied contract. It held that
the case was governed nonetheless by a statute providing, “A landlord may recover
a reasonable satisfaction for the use and occupation of any lands or tenements held

                                         -14-
by any person under an agreement not made by deed.” 

quoting § 7886
RSMo (1909). The Young court found that the statute limited suits for “use and
occupation” to situations where a landlord-tenant relationship existed between the
parties. 

The same language is still in the Missouri Revised Statutes, now
codified at § 441.200, and presumably still bars suits based upon “use and
occupation” in the absence of a landlord-tenant relationship. Young suggests that the
Supreme Court of Missouri would not recognize an unjust-enrichment action for fair
market rental value against a trespassing entity with eminent domain power, at least
in the absence of a prior agreement. See Young v. Sw. Bell Tel. Co., 

,
384 (Mo. 1928) (saying “the correctness of [the court of appeals’ Young] ruling is
well supported”). Second, § 528.283 specifically notes that “an action for trespass
or expanded use” is available against RECs and utility companies that go beyond the
scope of their easements, making no mention of unjust enrichment. § 528.283.4. The
district court’s grant of summary judgment on unjust-enrichment liability is reversed.

                                         III.

      After the district court granted summary judgment on liability for both the
trespass and unjust-enrichment claims, the landowners sought damages on the unjust-
enrichment claim alone. A jury awarded damages on that claim, and the district court
entered judgment for damages on that claim. Since this court now reverses the grant
of summary judgment on unjust enrichment, the damages award is vacated. This
court need not address the jury instructions or evidentiary rulings.

       On remand, the landowners may choose to pursue damages on their trespass
claim. See Malvino v. Delluniversita, 

, 233 (5th Cir. 2016) (permitting
plaintiff who elected RICO remedy that was reversed on appeal to pursue common
law fraud remedy on remand); Shaw v. Raymond, 

, 662 (Mo. App.
2006) (“When a plaintiff . . . does not have ‘two remedies in point of fact,’ the fact
that he sought a remedy to which he was not entitled does not bar him from pursuing

                                        -15-
a remedy to which he is entitled.” (quoting Pemberton v. Ladue Realty & Constr.
Co., 

, 385 (Mo.1949))). If the landowners make that choice, the
district court should conduct further proceedings consistent with this opinion.

                                           IV.

      Sho-Me and Tech challenge the district court’s decision to certify the class of
landowners. This court reviews the district court’s class certification decision for
abuse of discretion. Ebert v. General Mills, Inc., 

, 477 (8th Cir. 2016).

       Sho-Me and Tech argue that this class action is not “manageable” because it
will be difficult to determine class membership. See Fed. R. Civ. P. 23(b)(3)(D)
(explaining that, for Rule 23(b)(3) class actions, “the likely difficulties in managing
a class action” are “pertinent to” predominance and superiority). The district court
addressed this argument at length in its order certifying the class, explaining that class
members “will file a claim form with a sworn statement identifying the period of their
ownership and attaching a deed.” Sho-Me and Tech do not specify how this process
is unmanageable, much less how it is so unmanageable that the district court abused
its discretion in certifying the class.

       Sho-Me and Tech assert that they could raise an affirmative
defense—landowner consent to their cable use—that should be individually
investigated and adjudicated, making class certification inappropriate. “While the
existence of individual defenses may be important in a court’s decision to certify a
class, the relevance of such defenses must be subjected to the same rigorous inquiry
as plaintiffs’ claims.” In re Zurn Pex Plumbing Prod. Liab. Litig., 

,
619 (8th Cir. 2011) (citation omitted). Sho-Me and Tech point to no evidence that
even one class member consented to their cable use. Their unsupported allegation of
individual consent questions does not undercut the district court’s finding that
common questions predominate over individual ones.

                                          -16-
       Finally, Sho-Me and Tech contend that the need for individualized damages
calculations prohibits class certification. Since this court has vacated the damages
award, the nature of a hypothetical future damages award does not render class
certification improper. See Tyson Foods, Inc. v. Bouaphakeo, 

,
1049-50 (2016) (declining to decertify class on basis of damages issues not yet
resolved by district court). The district court did not abuse its discretion in certifying
the class.

                                      *******

     The judgment is affirmed in part, reversed in part, vacated in part, and
remanded for proceedings consistent with this opinion.
                     ______________________________




                                          -17-