UK: The Class Action Chronicle – Midyear Update

This edition focuses on rulings issued between February 16, 2018, and June 15, 2018.

In this issue, we cover three decisions granting motions to strike/dismiss class claims, five decisions denying such motions, 27 decisions denying class certification or reversing grants of class certification, 34 decisions granting or upholding class certification, 11 decisions denying motions to remand or reversing remand orders pursuant to the Class Action Fairness Act (CAFA), and seven decisions granting motions to remand or finding no jurisdiction under CAFA that were issued during the four-month period covered by this edition.

Class Certification Decisions

  • Decisions Granting/Affirming Motion to Strike or Dismiss
  • Decisions Denying Motions to Strike
  • Decisions Rejecting/Denying Class Certification
  • Decisions Permitting/Granting Class Certification

Class Action Fairness Act Decisions

  • Decisions Denying Motions to Remand/Reversing Remand Orders/Finding CAFA Jurisdiction
  • Decisions Granting Motions to Remand/Finding No CAFA Jurisdiction
  • Other CAFA Decisions

Class Certification Decisions

Decisions Granting/Affirming Motion to Strike or Dismiss

Walters v. Vitamin Shoppe Industries, Inc., No. 3:14-cv-1173-PK, 2018 WL 2424132 (D. Or. May 8, 2018), report and recommendation adopted, 2018 WL 2418544 (D. Or. May 29, 2018)

The plaintiff asserted nationwide class claims for unjust enrichment and fraud and claims for violations of Oregon consumer protection law on behalf of a proposed subclass of Oregon purchasers, alleging the defendant misleadingly labeled its supplements in referring to volume per serving rather than the volume per individual pill, capsule or tablet. Judge Anna J. Brown of the U.S. District Court for the District of Oregon adopted the findings and recommendation of Magistrate Judge Paul Papak and granted the defendant's motion to strike the nationwide class allegations. The motion was not premature because determining variations in state law presented legal issues that could be resolved without discovery, and a motion to strike pursuant to Federal Rule of Civil Procedure 12(f) was "procedurally appropriate." The court further concluded that material variations in state law on fraud and unjust enrichment would produce different outcomes, and thus, under Oregon choice of law statutes, the law of the state of purchase would govern each proposed class member's claim. Rule 23(b)(3)'s predominance requirement could not be satisfied as to the unjust enrichment claim due to differences in state laws, such as the applicable statute of limitations, whether unjust enrichment is a standalone claim or a quasi-contract claim, and the accrual date. Material differences in state law such as the level of scienter necessary to show fraud, the plaintiff's burden of proof, statute of limitations and whether reliance may be presumed defeated predominance as to the fraud claim. The court's order striking the class allegations was without prejudice, however, to allow the plaintiff to narrow his class definition to include only residents of those states where the law does not materially differ.

Reedy v. Phillips 66 Co., No. H-17-2914, 2018 WL 1413087 (S.D. Tex. Mar. 20, 2018)

Judge Sim Lake of the U.S. District Court for the Southern District of Texas dismissed nationwide class claims brought on behalf of purchasers of allegedly defective aircraft fuel on the ground that the need to apply the laws of multiple states to the proposed class members' claims made a finding of predominance impossible. The plaintiffs in the case sought to assert claims for strict products liability, negligence, and breach of implied and express warranties on behalf of the nationwide class, and also sought certification of a statewide class of Kansas fuel purchasers alleging consumer fraud. The defendant moved to strike both proposed classes, and the court determined that the motion was properly treated as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). With respect to the proposed nationwide class, the court granted the motion to dismiss in light of the need to apply the law of each proposed class member's home state to resolve his or her claims. While the plaintiffs argued that discovery may reveal that the proposed class members reside in fewer than 50 states — and that those states may have overlapping laws — the court rejected this argument and found that the "burden of applying the products liability and warranty laws of each class member's state defeats predominance and, thus, nationwide class certification." The court, however, refused to dismiss the proposed Kansas-only, consumer-fraud class for lack of factual predominance. In so holding, the court noted that the plaintiffs had not clearly alleged whether their consumer fraud claims were based on an alleged omission or misrepresentation, which would affect the elements they would have to prove at a class trial. The court therefore permitted the plaintiffs to amend their complaint and reallege their consumer fraud claims under Kansas law.

Taylor v. Denka Performance Elastomer LLC, No. CV 17-7668, 2018 WL 1010186 (E.D. La. Feb. 22, 2018), 23(f) pet. denied

Judge Martin L. C. Feldman of the U.S. District Court for the Eastern District of Louisiana denied the plaintiffs' motion to reconsider the court's order denying the motion for extension of time to file a motion for class certification and granted the defendant's motion to strike the plaintiffs' motion for class certification. The plaintiffs alleged that the production of synthetic rubber at the defendant's facility emitted a carcinogen, resulting in a significantly increased risk of cancer. The court found that the plaintiffs missed the deadline to file a motion for class certification, and their request for an extension to file was denied as untimely. The court also rejected the plaintiffs' argument that the filing of an amended notice of removal reset the 91-day clock for filing a class certification motion. Accordingly, the court dismissed the class allegations for failure to timely seek class certification.

Decisions Denying Motions to Strike

Doe v. Trinity Logistics, Inc., No. 17-53-RGA-MPT, 2018 WL 1610514 (D. Del. Apr. 3, 2018), report and recommendation adopted, 2018 WL 2684109 (D. Del. June 5, 2018)

Judge Richard G. Andrews of the U.S. District Court for the District of Delaware adopted the report and recommendation of Chief Magistrate Judge Mary Pat Thynge and denied the defendants' motion to strike class claims under the federal Fair Credit Reporting Act (FCRA). The plaintiff, on behalf of putative class members, alleged that the defendants, a consumer reporting agency and an employer, created and used consumer reports to take adverse employment actions without informing potential employees or providing them with copies of the reports as required by law. In recommending that the motion to strike be denied, the magistrate judge essentially conducted a full class certification analysis under Rule 23. Specifically, she found that the proposed class satisfied the Rule 23(a) requirements, noting that common issues of fact and law — e.g., whether the uniform failure to timely provide a copy of employment reports violates the FCRA — existed and the claims were typical because all putative class members were similarly affected by the defendants' actions. The magistrate judge also indicated that the class satisfied the predominance and superiority requirements of Rule 23(b)(3) because common questions of law and fact, including whether the defendants willfully or negligently failed to provide class members notice before taking an adverse action against them, predominated over individual issues. The magistrate judge also found that the class definition was objective and not conclusory, rejecting the defendants' argument that because the class definition nearly parroted the statute's language, the court would have to conduct individualized inquiries to discern whether each putative class member fit in the class. Accordingly, the court ruled against striking the class claims.

Butterline v. Bank of New York Mellon Trust Co., National Ass'n, No. 15-1429, 2018 WL 1705957 (E.D. Pa. Apr. 6, 2018)

Judge Juan R. Sánchez of the U.S. District Court for the Eastern District of Pennsylvania denied a motion to strike class claims alleging that the defendant bank failed to give putative class members excess proceeds from foreclosure sales, in violation of state law. The court rejected the defendant's contention that the class was not ascertainable, accepting the plaintiffs' argument that class members could be identified from records of sheriff sales where the bank received excess proceeds. The court also postponed a decision on predominance until after class discovery given the scant amount of attention devoted to predominance in the parties' briefing.

Casso's Wellness Store & Gym, L.L.C. v. Spectrum Laboratory Products, Inc., No. 17-2161, 2018 WL 1377608 (E.D. La. Mar. 19, 2018)

Judge Kurt D. Engelhardt of the U.S. District Court for the Eastern District of Louisiana denied defendant Spectrum's motion to dismiss and/or strike class allegations (1) for lack of personal jurisdiction under Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017); (2) as inappropriate for class treatment under Rules 23(c)(1)(A) and 23(d)(1)(D); and (3) as unconstitutional under the Fifth Amendment's due process clause. The plaintiff had filed a putative class action, alleging violations of the Telephone Consumer Protection Act (TCPA), as amended by the Junk Fax Prevention Act (JFPA). The plaintiff sought damages and injunctive relief for Spectrum's massive faxing campaign that allegedly failed to comply with mandatory opt-out notice requirements under the TCPA, JFPA and Federal Communications Commission regulations. The plaintiff proposed a class defined as: "All persons and entities that are subscribers of telephone numbers to which within four years of filing of the Complaint, Defendant sent facsimile transmission with content that discusses, describes, promotes products and/or services offered by Defendant, and does not contain the opt-out notice required by [federal law]."

First, the court held that Bristol-Myers did not foreclose the court's jurisdiction over non-Louisiana residents because (1) that opinion addressed mass torts, not class actions; (2) unlike a mass action, a plaintiff seeking to represent absent members in a class action is the only one in the complaint, and only his or her claims are relevant to the personal jurisdiction inquiry; (3) the named plaintiff had adequately alleged the court's personal jurisdiction over the defendant; and (4) Spectrum did not dispute the reasonableness of the court's exercise of personal jurisdiction. Second, the court denied without prejudice Spectrum's motion to strike the class allegations for failing to satisfy Rule 23's requirements, reasoning that the motion was premature. Spectrum had not filed its answer, discovery had not commenced and the plaintiff had not yet filed a motion for class certification. Accordingly, the court could not adequately ascertain whether the plaintiff could properly certify a class. Finally, the court rejected Spectrum's due process motion, reasoning that (1) the TCPA is "uniquely well-suited to class resolution"; and (2) other courts had "persuasively rejected" the argument that TCPA class actions violate the Fifth Amendment.

Sos v. State Farm Mutual Automobile Insurance Co., No. 6:17-cv-890-Orl-40KRS, 2018 WL 1866097 (M.D. Fla. Mar. 12, 2018)

Judge Paul G. Byron of the U.S. District Court for the Middle District of Florida, adopting the report and recommendation of Magistrate Judge Karla R. Spaulding, denied the defendant's motion to strike class allegations. The plaintiff's second amended complaint alleged that the defendant, an insurance company, failed to pay sales tax and regulatory fees in connection with the plaintiff's loss claim, in violation of state law and the insurance policy. The plaintiff sought to bring suit on behalf of both Florida and non-Florida insureds in a nationwide class. The defendant moved to strike on the grounds that the class would be impossible to certify since it would require analysis of the unique insurance policies and laws of all 50 states. Magistrate Judge Spaulding found that the defendant's motion to strike was premature due to the need for evidentiary review before determining the suitability of class certification, since it was not sufficiently clear from the face of the complaint whether class certification was appropriate. Judge Byron agreed and referenced U.S. Court of Appeals for the Eleventh Circuit precedent in which courts have held that striking class allegations on the pleadings alone was premature. Furthermore, while Judge Byron noted that class certification is generally not appropriate where claims must be decided on the laws of multiple states, he declined to consider the actual differences in the states' laws at this stage of the litigation. Accordingly, the court deferred the choice-of-law issue to the class certification stage and denied the defendant's motion to strike.

MAO-MSO Recovery II, LLC v. Government Employees Insurance Co., Nos. PWG-17-711, PWG-17-964, 2018 WL 999920 (D. Md. Feb. 21, 2018)

Judge Paul W. Grimm of the U.S. District Court for the District of Maryland denied the defendant's motion to dismiss class allegations filed on behalf of two nationwide classes of Medicare Advantage organizations seeking reimbursement for accident-related medical expenses paid to beneficiaries. The defendant argued that both classes were overbroad and that the plaintiffs had failed to assert specific facts in support of certification. The court held it was premature to rule on class certification because the requirements of Rule 23 could be met depending on the outcome of discovery. As such, it denied the defendant's motion to dismiss the class allegations without prejudice to renewal at the point of class certification.

Decisions Rejecting/Denying Class Certification

Gonzalez v. Corning, 885 F.3d 186 (3d Cir. 2018), as amended (Apr. 4, 2018)

The U.S. Court of Appeals for the Third Circuit (Hardiman, Chagares and Jordan, JJ.) affirmed the denial of class certification where consumers alleged that the defendant sold defective roof shingles and misrepresented the shingles' expected useful life. In the district court, the plaintiffs moved to certify two classes: (1) a nationwide class to determine the legal standard on when the defendant can use a bankruptcy discharge defense to shield itself from liability; and (2) a class of property owners from Pennsylvania, Illinois, Texas and California (the four-state class) asserting various combinations of state law causes of action. The district court declined to certify either class. The court ruled the nationwide class failed the commonality requirement, finding the only common question was nonjusticiable. The lower court also held that the four-state class could not demonstrate that common issues of law or fact predominated over individual ones and certifying an issue class under Rule 23(c)(4) to decide issues of liability was inappropriate.

The U.S. Court of Appeals for the Third Circuit agreed. On appeal, the plaintiffs first argued that two common issues predominated for the four-state class members: whether the shingles had a common defect and whether the defendant misrepresented their useful life. The defendant countered that these questions did not have common answers because of the wide variety of different shingles, some of which the plaintiffs admitted had no defect. The panel rejected the plaintiffs' argument that all class members shared a common risk of having defective singles because it "equate[d] the existence of a defect with the mere possibility that one might exist." The plaintiffs next argued that the district court improperly assessed the merits of the plaintiffs' claims at the class certification stage. But the panel pointed out that courts could look to merits issues that were intertwined with class certification questions. Finally, the plaintiffs argued that the district court should have certified a liability-only class because resolution of the common liability issues would materially advance the litigation. The panel held that a liability class was inappropriate because the plaintiffs offered no theories of liability common to the class. Accordingly, the Third Circuit affirmed the denial of class certification.

Cochoit v. Schiff Nutrition International, Inc., No. SACV 16-01371-CJC(KESx), 2018 WL 3372751 (C.D. Cal. July 9, 2018)

Judge Cormac J. Carney of the U.S. District Court for the Central District of California refused to certify a nationwide class and subclass of California purchasers alleging the defendants falsely advertised their "Digestive Advantage" products. In 2012, the plaintiff's attorney, Ronald Marron, negotiated the settlement of a related putative consumer class action against the same defendants, concerning nearly identical claims arising from nearly identical representations, and received $300,000 in attorneys' fees. The settlement agreement included a "notice and cure" provision, in which Marron agreed to notify and give the defendants' counsel 30 days to cure any advertising that they believed breached the settlement agreement until May 3, 2015. Marron did not contact any of the defendants during the cure period but brought this action in 2016 on behalf of the current plaintiff. The court concluded that while it was in the plaintiff and the class' interest to argue that all related advertisements were false, in asserting that argument, Marron would be forced to explain why he allowed a similar advertising scheme to continue and risk admitting a breach of the settlement and a disgorgement of the fees he received, creating a conflict of interest. Moreover, Marron's conduct and involvement in both cases were distractions from the merits of the plaintiff's claims, at the expense of the putative class members and their ability to litigate the merits of their claims. Based on the conflict of interest and Marron's inability to vigorously represent the absent class members, the court held the adequacy requirement was not satisfied and did not address the remaining Rule 23 factors in denying the plaintiff's certification motion.

In re Seagate Technology LLC, No. 16-cv-00523-JCS, 2018 WL 3306192 (N.D. Cal. July 5, 2018)

Chief Magistrate Judge Joseph C. Spero of the U.S. District Court for the Northern District of California declined to certify a nationwide damages class under California consumer protection laws, or eight subclasses under the laws of various states, on claims that Seagate failed to disclose information about the features and reliability of its hard drives. The court held that foreign law should apply based on other states' significant interest in regulating transactions within their borders and denied certification of the nationwide class. Regarding the state-based subclasses, the court noted that although variation of the alleged omissions over time and across products would pose difficulties in defining the subclasses, the evidence presented would not significantly vary across the eight states. However, common issues did not predominate under the plaintiffs' theories of liability. The plaintiffs failed to present a method of showing that suitability of the hard drives for particular configurations was material to consumers, and only a subset of the named plaintiffs stated that they relied on that feature when purchasing. The plaintiffs' other theory focused on Seagate's alleged failure to disclose that hard drives were unreliable and had high failure rates. The court held that the plaintiffs failed to present classwide proof that the failure rate was higher than represented or otherwise actionable; nor did the plaintiffs present a plan for addressing variations across time, product modifications and intended uses. As a result, the court held that common issues did not predominate and denied the motion without prejudice to moving to certify narrower, or more precisely defined, classes.

Career Counseling, Inc. v. Amsterdam Printing & Litho, Inc., No. 3:15-cv-05061-JMC, 2018 WL 3241178 (D.S.C. July 3, 2018)

Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina denied without prejudice the plaintiff's amended motion for class certification in this Telephone Consumer Protection Act (TCPA) "junk fax" case because the proposed class was not sufficiently ascertainable. To determine prospective class members who were successfully sent faxes in violation of the TCPA, the plaintiff proposed an administrative system in which a list of targeted fax numbers was cross-referenced with a list of those numbers that were removed or for which delivery of the fax failed. The court determined that this method would require the court to look at each number individually, thus imposing a significant administrative burden on ascertaining the class. Therefore, the court denied class certification.

Perisic v. Ashley Furniture Industries, Inc., No. 8:16-cv-3255-T-17MAP, 2018 WL 3391359 (M.D. Fla. June 27, 2018)

The plaintiff sought certification of a class of Florida consumers who purchased DuraBlend® products from Ashley Furniture Industries (AFI), asserting the consumers were fraudulently led to believe the products were similar in quality to real leather items. The plaintiff filed claims under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and for unjust enrichment. Magistrate Judge Mark Pizzo of the U.S. District Court for the Middle District of Florida refused to certify the class on ascertainability, typicality, commonality and predominance grounds. Specifically, Judge Pizzo held that the plaintiff failed to satisfy the ascertainability element because the evidence failed to demonstrate a systematic or uniform marketing scheme, requiring an examination of each potential class member's circumstances to determine whether the class member was deceived in violation of FDUTPA. Additionally, unlike the other proposed class members, the plaintiff — who had a family of six people and five cats — relied on specific statements by a salesperson regarding the durability of the furniture. The plaintiff also had not been exposed to the hangtags, marketing products or labels of AFI that she alleged to be deceptive. Therefore, the judge found that the plaintiff's experience was not typical of the class. The judge further found that the commonality element was not satisfied because class members had differing exposures to the allegedly deceptive representations, noting that the five class members who submitted declarations all had unique experiences. Finally, the judge found that the plaintiff failed to meet the predominance requirement because FDUTPA and unjust enrichment claims against AFI turned on unique facts. Because common questions of fact or law did not predominate, the court held that a class action was not superior to other methods of adjudication. Accordingly, the court held Rule 23(b)(3)'s requirements were not met and recommended that the court deny class certification.

Rosenberg v. CCS Commercial, LLC, No. C17-476 MJP, 2018 WL 3105988 (W.D. Wash. June 25, 2018)

The plaintiff alleged that the defendant collection service, employed by the co-defendant insurance company to collect payments from drivers involved in accidents with their insureds, sent debt collection-type notices identified as "subrogation claims" to class members in violation of the Washington Consumer Protection Act (CPA). Judge Marsha J. Pechman of the U.S. District Court for the Western District of Washington denied the plaintiff's motion for certification. The court held commonality and predominance were not satisfied because CCS employed a series of communications, including letters and phone scripts with varying responses, which meant the determination of whether, when and how an individual member was deceived would require case-by-case analyses. The court rejected as "outdated" the defendant's objections as to adequacy because the plaintiff's attorney was underwriting the lawsuit, but it held that typicality and adequacy were also not satisfied, because the plaintiff consulted a class action attorney prior to receiving any notice from CCS, volunteered to pay the requested amount (despite the fact that she contested liability) and then sued the other driver for all her losses except the money she paid to CCS. The court held that these facts "seriously call[] into question whether she was deceived at all ... or was compelled by some circumstance other than liability to remit the requested sum," and noted it had "never seen a clearer case of 'subject to unique defenses.'" As to predominance, the court held many of the defendants' vagueness objections could be solved through rewording of the class definition, but individual issues predominated as to the motivation of class members who paid CCS, because an inquiry into the circumstances of every class member's case was required to ascertain whether he/she acknowledged fault in his/her particular accident, which would render the defendants immune from CPA/unjust enrichment liability.

Victorino v. FCA US LLC, No. 16cv1617-GPC(JLB), 2018 WL 2967062 (S.D. Cal. June 13, 2018), 23(f) pet. pending

Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California denied a motion for class certification in an action alleging that several model years of Dodge Dart vehicles contained a transmission defect and asserting California breach of warranty and consumer protection claims. Regarding the proposed nationwide implied warranty class, because the federal implied warranty claim was based solely on California law, the court found the plaintiff failed to address — and therefore meet his initial burden — that California law actually applied to the nationwide class and that such application would not violate due process. For the proposed California implied warranty class, the court first noted that there is a district court split on whether a plaintiff seeking to certify a California implied warranty class must demonstrate, with evidence, an inherent defect that is "substantially certain to result in malfunction during the useful life of the product." The court held that such showing is not necessary, because the court should avoid determinations on the merits at the class certification stage. Nonetheless, the court found that the class definition, which included used vehicles, was overbroad because California's implied warranty law does not apply to used vehicles. The court declined to modify the class definition because the plaintiff failed to demonstrate that his damages model met the Rule 23(b)(3) predominance requirement, as it required an individualized assessment of the "difference in the value represented and the value actually received" of the transmission components. Additionally, the court denied the plaintiff's motion to certify an injunctive relief class under Rule 23(b)(2) to remedy the clutch defect because the alleged common injury was the overpayment of the purchase price of the vehicles, and thus monetary damages were the appropriate form of relief.

Bohlke v. Green Star Capital Solutions, LLC, No. 17-CV-81379-MIDDLEBROOKS, 2018 WL 3413030 (S.D. Fla. June 7, 2018)

Judge Donald M. Middlebrooks of the U.S. District Court for the Southern District of Florida denied the plaintiff's motion for class certification alleging violations of the Telephone Consumer Protection Act. Specifically, the plaintiff sought to certify two classes: (1) a class of plaintiffs who received automatic telephone dialing system solicitation calls from the defendant without consent; and (2) a class of plaintiffs who received certain calls from the defendant despite being on the National Do Not Call Registry. The court held that there was insufficient evidence to make a determination on the Rule 23 requirements for class certification. While the plaintiff alleged that the proposed class included thousands of members, he did not provide supporting evidence; the only support for his allegation consisted of declarations from his counsel and an expert who had not reviewed any discovery. Because the plaintiff could not provide sufficient evidence, the court denied the motion for class certification.

Greene v. Mizuho Bank, Ltd., No. 14 C 1437, 2018 WL 2735112 (N.D. Ill. June 7, 2018)

Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois denied class certification to plaintiffs seeking to hold the defendants liable for financial losses arising from the failure of the Mt. Gox bitcoin exchange. The plaintiffs brought claims of tortious interference with contract, unjust enrichment and fraudulent concealment related to the defendant bank's continued acceptance of international inbound wire transfers from Mt. Gox customers when it had stopped processing all outbound wire transfer requests for Mt. Gox customers. Put differently, the "gist of the claims" was that the bank's decision to stop processing outbound wire transfers created a "trap" for investors based in the United States. On review, the court found that the named plaintiff failed to show that his claims were typical of the proposed class or that he was an adequate representative of the proposed class. With respect to adequacy, the court found that the named plaintiff was subject to arguable defenses not applicable to the class as a whole. At his deposition, the named plaintiff indicated that he would have found a way to invest in bitcoin on the exchange even if he had known the bank had stopped processing outbound wire transfers, and if he had withdrawn his investment, he would have done so in bitcoin. This testimony "severely undermined" his ability to prove injury from the bank's conduct, as he "admitted that he did not perceive his money to be trapped at all." In addition, the named plaintiff's claims were not typical of the proposed class because the bank had offered the plaintiff an opportunity to cancel his wire transfer and recoup his funds. That opportunity was not available to members of the proposed class. Accordingly, the court denied class certification.

Williamson v. S.A. Gear Co., No. 15-CV-365-SMY-DGW, 2018 WL 2735593 (S.D. Ill. June 7, 2018)

Judge Staci M. Yandle of the U.S. District Court for the Southern District of Illinois denied class certification to plaintiffs alleging violations of state law express-and-implied warranty claims, the Illinois Consumer Fraud Act, common law fraud claims, strict liability claims and unjust enrichment. The plaintiffs alleged that the defendants sold a car part falsely claiming that it met Chrysler/Dodge/original equipment manufacturer specifications and that it was suitable for use in a particular Chrysler engine. Judge Yandle held that commonality was satisfied because "a single common question is sufficient," and whether the part's packaging was false or misleading was relevant to the claims and was capable of classwide resolution. Typicality, however, was not satisfied because the plaintiffs failed to demonstrate that their claims arose out of the same event or course of conduct as all putative class members' claims. Here, the plaintiffs did not identify a significant or meaningful number of complaints about the alleged defect or other evidence demonstrating any other consumer's belief that the part was defective or that representations about the part were misleading. Instead, the plaintiffs relied on three complaints, none of which mentioned the particular issue the named plaintiffs believed was defective, the O-ring. Finally, the proposed class failed the adequacy requirement because the record suggested that few, if any, potential class members shared the named plaintiffs' issues with the part. Accordingly, the court denied class certification.

Teggerdine v. Speedway, LLC, No. 8:16-cv-03280-T-27TGW, 2018 WL 2451248 (M.D. Fla. May 31, 2018)

Judge James Whittemore of the U.S. District Court for the Middle District of Florida declined to certify a class of retail gasoline purchasers alleging that the defendants were negligent by implementing a payment processing program that placed authorization holds on their accounts. The court held that the plaintiff failed to satisfy the predominance and superiority requirements, explaining that because the plaintiff's claims sounded in negligence — a claim that varies among the 21 states in which the relevant transactions occurred — individual issues regarding liability for negligence predominate. Furthermore, managing the litigation of the various state law negligence claims was not the superior method of litigation. Accordingly, the court denied the plaintiff's motion for class certification.

Arthur v. United Industries Corp., No. 2:17-cv-06983-CAS(SKx), 2018 WL 2276636 (C.D. Cal. May 17, 2018)

Judge Christina A. Snyder of the U.S. District Court for the Central District of California denied the plaintiff's motion to certify a nationwide class asserting California consumer protection law claims. The plaintiff alleged that the defendant misrepresented that each bottle of concentrate herbicide could be diluted to make a specified number of gallons. The court held that although numerosity was satisfied, the plaintiff and the proposed class members had suffered different alleged injuries. The plaintiff testified that he mixed the concentrate based on his own calculation and that the resulting solution did not perform as expected. By contrast, the class members allegedly mixed the concentrate according to the instructions and received less spray than advertised. The plaintiff also testified that he had failed to read the mixing instructions on the packaging. Thus, commonality, typicality and adequacy were not satisfied. The plaintiff also failed to satisfy the Rule 23(b) predominance requirements. He did not offer a classwide method of proving that the labeling constituted an actionable misrepresentation and failed to demonstrate reliance, as he had not read the packaging. His failure to read the label also meant he could not establish that material misrepresentations were made to the class members through common proof. The court declined to consider predominance of damages or superiority and adequacy in light of the other Rule 23 shortcomings. The court also refused to certify a class for injunctive relief, as the court had previously dismissed the plaintiff's claim for injunctive relief as pre-empted by the Federal Insecticide, Fungicide and Rodenticide Act.

Davidson v. Apple, Inc., No. 16-CV-04942-LHK, 2018 WL 2325426 (N.D. Cal. May 8, 2018), 23(f) pet. voluntarily dismissed

Judge Lucy H. Koh of the U.S. District Court for the Northern District of California declined to certify a class of iPhone 6 and iPhone 6 Plus purchasers asserting claims under various state consumer protection laws for alleged failure to disclose touchscreen defects. The court held that while Rule 23(a) was satisfied, Rule 23(b) was not. The court held that statements on the iPhone box were sufficient to demonstrate "uniform" prepurchase exposure and rejected Apple's argument that individual inquiries were required as to other causes for touchscreen malfunction or whether class members encountered the defect, because proof of manifestation is not a prerequisite to certification, and individual factors affecting performance did not affect the ultimate common question — whether the iPhones were sold with a defective touchscreen. However, the plaintiffs' damages model — surveying customers to determine the value of various attributes and surmise the "negative" economic value of a generic "defect" — was fatally flawed because it assumed the touchscreen defect will manifest in all iPhones when it only manifests in 5.6 percent of the iPhone 6 Plus, less for the iPhone 6. Because damages models must measure only those damages attributable to the plaintiffs' theory of liability, the model should have assumed a roughly 5.6 percent or less chance that consumers would experience the defect. The model also did not specify that the "defect" affected only the touchscreen and assumed the defect would render the iPhone inoperable, although none of the named plaintiffs experienced inoperability. The inadequate damages model thus did not satisfy Rule 23(b)(3)'s predominance requirement. The court also refused to certify a Rule 23(c)(4) issues class as to the existence and knowledge of a defect, duty to disclose and other liability issues because adjudication of those issues would not advance resolution, given the inability to prove damages on a classwide basis.

Proctor v. District of Columbia, 310 F. Supp. 3d 107 (D.D.C. 2018)

Judge Trevor N. McFadden of the U.S. District Court for the District of Columbia denied certification in this civil rights case alleging that the District of Columbia destroyed the property of homeless residents in violation of the Fourth Amendment during "encampment cleanups." The putative class included all homeless persons who reside in public spaces that are subject to district, rather than federal, government oversight and have been or will be subject to encampment cleanups by the district. After denying the plaintiffs' motion for a preliminary injunction, the court also denied the motion for class certification. It held that the plaintiffs had not adequately shown the class was sufficiently numerous. Though Census data showed about 900 homeless persons in the district, the plaintiffs could not define how many of them lived on federal property and therefore were subject to federal authority; nor could they show how many had been or will be subject to encampment cleanups. As such, the court found that the plaintiffs had not met their burden under Rule 23(a)(1) and denied class certification.

Campbell v. National Railroad Passenger Corp., 311 F. Supp. 3d 281 (D.D.C. 2018)

Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia denied class certification in this employment discrimination class action against Amtrak. As an initial matter, the court denied certification because all of the putative classes and subclasses were fail-safe classes, consisting by their terms of those employees who had suffered discrimination. Therefore, if the plaintiffs failed to prove discrimination on the merits, the classes would consist of no members and the defendant would be denied any preclusive effect. The court further concluded that even a properly pleaded class could not satisfy the class certification requirements because the plaintiffs alleged a patchwork of individual acts of discrimination by various supervisors and other employees, rather than a single common policy of discrimination. For this reason, the case could not provide common answers, and commonality was therefore not satisfied.

Herron v. Best Buy Stores, LP, No. 2:12-cv-02103-TLN-CKD, 2018 WL 1960659 (E.D. Cal. Apr. 26, 2018), 23(f) pet. granted

Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California denied the plaintiff's amended motion for certification of a class of California laptop purchasers alleging violations of California consumer protection laws based on purported misrepresentations about battery life. The court previously refused to certify a class, as discussed in the summer 2016 issue of The Class Action Chronicle, because the plaintiff's damages model was not tied to his theory of liability. Noting the plaintiff must provide evidence of a damages model that could determine the price premium attributable to the defendant's use of the allegedly misleading battery-life representations, the court held that instead, the plaintiff only introduced evidence that an increase in battery life equals an increase in price by calculating "the difference in value of one alleged misrepresented hour of battery life against another alleged misrepresented hour of battery life." This failed to explain how the difference in the relative prices of various mislabeled laptops is helpful in determining whether a price premium is associated with the allegedly deceptive labels. The court rejected the plaintiff's reply argument that the correct way to measure restitution damages is the difference between what consumers were promised and what they actually received, because under a restitution theory, consumers are entitled not to what they were promised but rather, to the difference between the price they paid and the true market price of the laptops they received. Because the plaintiff provided no restitution model demonstrating that a change in the defendant's labeling would cause a change in market price, the damages model was not tied to his theory of liability and did not demonstrate a classwide basis for calculating damages as required under Rule 23(b)(3).

Andren v. Alere, Inc., No. 16cv1255-GPC(AGS), 2018 WL 1920179 (S.D. Cal. Apr. 24, 2018)

Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California denied the plaintiffs' motion for reconsideration of the court's previous order denying class certification of six state subclasses, discussed in the spring 2018 issue of The Class Action Chronicle. The plaintiffs alleged deceptive and misleading advertising and marketing of the defendants' electronic blood-clotting testing devices. Recognizing that an order denying class certification may be altered or amended before final judgment, the court considered the plaintiffs' motion under Rule 23 and not the parameters of a motion for reconsideration. The plaintiffs argued that newly discovered facts demonstrated that predominance was satisfied with respect to the learned intermediary doctrine, statute of limitations and damages. Specifically, the plaintiffs argued that common issues predominated with respect to the learned intermediary doctrine because the defendants failed to warn any physicians about the devices, and the issue was therefore subject to common proof. Rejecting this argument, the court noted that the learned intermediary doctrine requires more than demonstrating a failure to warn; it also requires demonstrating proximate cause, leading to individual inquiries into each doctor's experience with the product. The court also held that the plaintiffs failed to demonstrate that each of the six subclass state's consumer protection statutes provide for a full refund recovery. Further, the court found that while the plaintiffs may be entitled to tolling of the statute of limitations under equitable tolling and/or the discovery rule, they had not sufficiently demonstrated its application to the six subclass states and whether these exceptions would allowing tolling for each of the potential class members, some of whom may have had earlier notice of issues with the testing devices.

Craft v. South Carolina State Plastering, LLC, No. 9:15-cv-5080-PMD, 2018 WL 1993863 (D.S.C. Apr. 16, 2018), 23(f) pet. pending

Judge Patrick Michael Duffy of the U.S. District Court for the District of South Carolina denied class certification in this putative class action alleging construction defects related to the stucco applied to homes. The court held that the predominance inquiry was fatal to the plaintiffs' class certification motion because individualized inquiries into liability and damages would require the destructive evaluation of each house. The court also explained that because the application of the defendant's statute of limitations affirmative defenses would vary depending on facts particular to each plaintiff's case, class certification was erroneous. Moreover, the court found that management difficulties counseled against a finding of superiority, and establishing subclasses and mini-trials would further cause issues. Finally, the court discounted certification of similar cases in South Carolina state court, noting that the South Carolina Rules of Civil Procedure took a more expansive view of class action availability than the federal rules. Accordingly, the court declined to certify the putative class.

Theodore D'Apuzzo, P.A. v. United States, No. 16-62769-Civ-Scola, 2018 WL 2688760 (S.D. Fla. Apr. 12, 2018)

Judge Robert N. Scola, Jr. of the U.S. District Court for the Southern District of Florida denied the plaintiff's motion for class certification alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and illegal exaction. The claims arose in connection with the E-Government Act that provides for access to judicial "written opinions" on the Public Access to Court Electronic Records (PACER) database. According to the PACER Fee Schedule, users are not charged for accessing judicial opinions. The plaintiff sought to certify a class of PACER users who were allegedly charged for that access. Although the court held that the plaintiff met the Rule 23(a) requirements, it determined that the case was not suitable as a class action because it failed to satisfy the predominance and superiority requirements under Rule 23(b). Specifically, there was insufficient guidance with respect to the definition of a "written opinion" and whether the E-Government Act, or merely the PACER Fee Schedule, mandated free access to such opinions. Moreover, the authoring judge of each document has the responsibility to determine whether it qualifies as a "written opinion." Therefore, the court concluded that the plaintiff's claims were not subject to determination by generalized proof but would instead require individualized inquiry to determine which documents they paid for and whether those documents were "written opinions." Due to the difficulties in managing the proposed class, the court found that the plaintiff could not satisfy the predominance and superiority requirements and denied class certification.

Gorss Motels, Inc. v. Safemark Systems, LP, No. 6:16-cv-01638-Orl-31DCI, 2018 WL 1635645 (M.D. Fla. Apr. 5, 2018), 23(f) pet. granted

Judge Gregory Presnell of the U.S. District Court for the Middle District of Florida denied class certification in connection with the plaintiffs' Telephone Consumer Protection Act (TCPA) claims. Defendant Wyndham Hotel Group (WHG), one of the world's largest hotel franchise companies, entered into franchise agreements with the named plaintiffs. WHG developed an approved supplier program by which it identified and approved third-party suppliers and service providers, and recommended such suppliers to its franchisees. The plaintiffs received two faxes containing such approved supplier information — one in 2013 and one in 2015 — and sought to certify two classes, one for each fax that the defendant sent promoting its hotel safety products purportedly in violation of the TCPA. The court held that the predominance requirement could not be satisfied because determining whether putative class members consented to receiving the faxes would require a series of individual factual determinations. Specifically, because the plaintiffs entered into franchise agreements by which they agreed the franchisor could offer assistance with purchasing items and provided their fax information to their respective franchisors several times during the course of their franchise relationships, the court concluded that the consent issue would require individualized analysis of each class member's franchise agreements and business dealings with the defendant. Because the court would need to engage in an individualized inquiry to determine which recipients had consented to the faxes, the court held that common issues failed to predominate and denied class certification. The plaintiffs recently filed an appeal to the U.S. Court of Appeals for the Eleventh Circuit.

Townsend v. Monster Beverage Corp., 303 F. Supp. 3d 1010 (C.D. Cal. Mar. 20, 2018), 23(f) pet. denied

Judge Virginia A. Phillips of the U.S. District Court for the Central District of California denied the plaintiffs' motion to certify a nationwide damages class asserting California consumer protection law claims based on the plaintiffs' purchase of beverages with four on-label statements alleged to be misleading. The court held that the plaintiffs failed to satisfy Rule 23(b)(3) because there were significant individualized issues relating to proof of materiality of the statements, and the plaintiffs' damages model was deficient. The court held that to show materiality under the statutes at issue, the plaintiffs must demonstrate that the statements were a factor in consumers' purchasing decision. However, the admissible portions of the plaintiffs' expert reports principally addressed how consumers understood the statements at issue but not how the challenged statements impacted their purchasing decisions. Thus, the plaintiffs failed to meet their burden to show that whether a reasonable consumer would consider any of the statements material presented a common question. Regarding damages, the court held that the plaintiffs failed to present a model that could determine the price premium attributable to the defendants' use of the challenged statements. The only admissible evidence addressed damages associated with one of the four statements, and that model was inadequate for several reasons. Most critically, the survey evidence supporting the damages claim suffered from "focalism bias" because the survey failed to include attributes deemed important by consumers, thereby artificially inflating the importance of the limited attributes presented in the survey.

Loughlin v. Amerisave Mortgage Corp., No. 1:14-CV-03497-LMM-LTW, 2018 WL 1887292 (N.D. Ga. Mar. 19, 2018)

Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia adopted the report and recommendation of Magistrate Judge Linda T. Walker and denied the plaintiffs' motion for class certification. The plaintiffs sought to certify two classes in connection with an alleged kickback scheme in violation of the Real Estate Settlement Procedures Act (RESPA) in which the defendant required customers to use a certain appraisal management company that shared profits with the defendant. One proposed class consisted of customers who did not receive notice of the affiliated business relationship, and the second consisted of customers who received a defective notice. RESPA does not apply to loans being used for a commercial purpose. The court held that the plaintiffs' classes were not ascertainable because the plaintiffs offered no feasible method by which they could determine which loans were provided for owner-occupied residential mortgages and not for any business, commercial or agricultural purposes. Because the defendant did not track how customers spent their loan proceeds and the plaintiffs did not address how to determine whether each putative class member's loan involved a "cash-out" option that was used for business purposes (and thus outside the scope of RESPA), the court concluded that the proposed classes were not ascertainable. Similarly, the court found that the classes could not satisfy the predominance requirement because individualized inquiries predominated over common questions, including whether: a class member received a loan covered by RESPA, the defendant actually referred the class member to the appraisal company, cash-out proceeds were used for a business purpose and damages were offset from reimbursed appraisal fees.

Long v. Nationstar Mortgage LLC, No. 2:15-cv-01202, 2018 WL 1247479 (S.D. W. Va. Mar. 9, 2018)

Chief Judge Thomas E. Johnston of the U.S. District Court for the Southern District of West Virginia denied certification of a putative statewide class in this case alleging illegal debt collection. The named plaintiff had been a class member in a previous suit making similar allegations against the same defendant and had not opted out of the settlement. The court first granted summary judgment on several of the plaintiff's claims, finding that they were based on conduct that was included within the initial settlement and therefore claim-precluded. The court ruled that one claim survived summary judgment because a reasonable jury could find that it was premised on actions that post-dated the original settlement. The court then denied class certification on the surviving claim, finding that commonality, typicality and adequacy were not met under Rule 23(a). First, it found classwide proceedings could not demonstrate common answers because the defendant serviced each class member's loan individually. Second, the court found that the plaintiff was not typical of the class or an adequate representative because proving the named plaintiff's claim would not advance the claims of class members whose claims predated the settlement, and a genuine issue of material fact remained as to whether the plaintiff was even part of the purported class. Therefore, the court denied class certification.

Bridge v. Credit One Financial, 294 F. Supp. 3d 1019 (D. Nev. 2018)

Judge Lloyd D. George of the U.S. District Court for the District of Nevada declined to certify a putative class action alleging violations of the Telephone Consumer Protection Act and various state consumer laws. The plaintiff alleged that after he called the defendant's automatic operator service on behalf of his mother on his telephone, the defendant called his number without his consent more than 100 times. Numerosity and adequacy were met, as the defendant only argued that the proposed class size was "unprecedented" in the large number of potential class members. The court identified two questions that would generate common answers, namely whether debt collection calls constituted nonemergency calls and whether the defendant acted negligently or knowingly and willfully toward the class. But the court noted that whether the defendant used an automated telephone dialing system was not a common question due to differences in vendors and equipment used, which would vary as to individual class members and calls. Typicality was not met, as the plaintiff had called Credit One in connection with his mother's account, and account holders have agreed that Credit One can contact them at telephone numbers used by the account holder to contact Credit One. Finally, the court held that the Rule 23(b)(3) requirements were not met, highlighting individualized issues of consent and the difficulty in both managing the class action and identifying the class members.

Ward v. Apple Inc., No. 12-cv-05404-YGR, 2018 WL 934544 (N.D. Cal. Feb. 16, 2018), 23(f) pet. granted

Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California refused to certify a class of iPhone consumers purportedly injured by exclusivity agreements between Apple and AT&T, which locked class members into renewing AT&T service or else losing the cellular capabilities of their iPhones. Apple did not dispute that the plaintiffs satisfied the threshold requirements of Rule 23(a) or the superiority requirement of Rule 23(b)(3) but argued that the class definition was overbroad and that the plaintiffs had not established predominance. The plaintiffs' expert offered theories of impact and damages based on a preliminary review of certain data collected and techniques employed by a different expert in a separate litigation involving Apple, which he claimed he could apply in the instant case "to reliably assess the existence and amount of damages to the Class members without the need for individual inquiry." The court concluded that the expert's declaration "lack[ed] any data-driven analysis" and that this failure to provide "properly analyzed, reliable evidence that a common method of proof exists to prove impact on a class-wide basis" or any semblance of a "functioning model that is tailored to market facts in the case at hand" was fatal to the plaintiffs' certification motion under Rule 23(b)(3). Because the plaintiffs' deficiency with respect to antitrust injury was dispositive as to predominance, the court declined to address the scope of the proposed class definition.

Usry v. Equity Experts.org, LLC, No. 1:16-cv-010, 2018 WL 934897 (S.D. Ga. Feb. 16, 2018)

Chief Judge J. Randal Hall of the U.S. District Court for the Southern District of Georgia denied the plaintiffs' motion for class certification alleging violations of the Fair Debt Collection Practices Act (FDCPA) and Georgia usury law in connection with excessive homeowners' association late fees. The defendant was hired to collect unpaid homeowners' fees for a subdivision and sought to charge various service fees to homeowners who were delinquent on their payments. The plaintiffs moved to certify a class consisting of all persons to whom the defendant "sent collection letters asserting claims for delinquent assessments, interest, and fees in violation of the FDCPA and the Georgia usury statute." The court held that because the class membership could only be ascertained by a determination of the merits of the case — whether there was a "violation of the FDCPA and the Georgia usury statute" — the class was an impermissible "fail-safe" class. Furthermore, the court held that the plaintiffs' proposed subclasses also failed because the classes were impermissibly defined in terms of the ultimate question of liability.

Huu Nguyen v. Nissan North America, Inc., No. 16-CV-05591-LHK, 2018 WL 1831857 (N.D. Cal. Apr. 9, 2018), 23(f) pet. granted

Judge Lucy H. Koh of the U.S. District Court for the Northern District of California denied certification of a class of consumers alleging the defendant deceptively sold vehicles with defective transmissions. The court found that predominance under Rule 23(b)(3) was not satisfied because the plaintiff failed to provide a damages model susceptible to classwide proof. The plaintiff proposed a "benefit of the bargain" damages model, based on the liability theory that the class overpaid for the vehicles as a result of the undisclosed, defective transmission. The model proposed damages equivalent to the cost to replace the allegedly defective transmission, allegedly representing the difference between the value of the vehicle as represented by Nissan and the value received. The court found this model "problematic," as it would only reflect the value differential if all class members deemed the defective part completely valueless. Instead, the court noted that class members could have derived additional value from the part by selling it, repurposing it or driving with it before replacing it. Indeed, the evidence showed that the plaintiff drove using the purportedly defective transmission for several thousand miles before replacement. Thus, under the proposed model, the class members would have received the full benefit of the bargain in addition to the monetary value of the defective part, which was an improper measure of damages. Questions of individual damages would thus overwhelm questions common to the class. The court also declined to certify a class under Rule 23(c)(4), as proceeding with a classwide liability determination would not address the need for individualized proof of damages.

Decisions Permitting/Granting Class Certification

Belcher v. Ocwen Loan Servicing, LLC, No. 8:16-cv-690-T-23AEP, 2018 WL 1701963 (M.D. Fla. Mar. 9, 2018), report and recommendation adopted in part, 2018 WL 1701964 (M.D. Fla. Apr. 2, 2018), appeal denied, No. 18-90011, 2018 WL 3198552 (11th Cir. June 29, 2018) (per curiam); Ocwen Loan Servicing, LLC v. Belcher, No. 18-90011, 2018 WL 3198552 (11th Cir. June 29, 2018) (per curiam)

The U.S. Court of Appeals for the Eleventh Circuit (Rosenbaum, Jordan and Pryor, JJ.) denied the defendant's motion for leave to appeal the district court's order granting class certification. The plaintiff alleged that the defendant regularly sent collections requests to consumers threatening to foreclose their homes or charge loan fees. Because the consumers were involved in the defendant's affordable loan program, the plaintiff contended that these communications violated the Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Collection Practices Act (FCCPA). For the FDCPA claim, the plaintiff sought to certify a class of consumers who received foreclosure and increased fee collection communications from the defendant while participating in the defendant's affordable loan program, and also a subclass consisting of Florida consumers for the FCCPA claim.

At the district court level, Magistrate Judge Anthony Porcelli of the U.S. District Court for the Middle District of Florida recommended that the motion for class certification be granted. Regarding the ascertainability requirement, Judge Porcelli, noting a circuit split, applied the Eleventh Circuit's stringent "administratively feasible" standard and found that the plaintiff's proposed class and subclass were not administratively feasible because they would require individualized inquiries to determine whether the defendant actually threatened foreclosure or incurrence of fees through oral communications. Instead, Judge Porcelli narrowed the class definition to plaintiffs that received written delinquency notices. Because the class members could self-identify to receiving a letter, the modified definition was ascertainable. Judge Porcelli found that the self-identification process and the existing business records of the defendant would allow the court to determine which class members acquired debt for a person, family or household purpose, as required by the FDCPA and FCCPA.

The decision also turned on the Rule 23(b)(3) predominance requirement. The defendant argued that individual questions would predominate over common questions because each class member's unique communications with the defendant would have affected the class members' understanding of the affordable loan program and whether they were actually deceived by the delinquency notices. However, Judge Porcelli found that the objective "least sophisticated consumer" test would apply to determine whether a customer perceived a delinquency notice as threatening foreclosure and therefore not require individualized inquiry. The rest of the FDCPA and FCCPA claims could be determined by generalized proof. As a result, Judge Porcelli recommended that the class be certified, and Judge Steven Merryday adopted the recommendation.

The Eleventh Circuit denied the defendant's motion for leave to appeal the district court's order granting class certification pursuant to Rule 23(f). First, the judges considered the importance of legal questions in the case. Namely, the defendant asked the court to decide the standard for ascertainability and to clarify whether FDCPA or FCCPA claims can satisfy the predominance requirement under Rule 23(b)(3). Despite acknowledging the circuit split on the ascertainability issue, the judges concluded that solving the issue would have no consequence on the case since the "administratively feasible" standard is the most stringent and the plaintiff's class would also pass muster under alternative standards. The judges felt that consideration of this issue was more appropriate for a typical appeal process, not immediate interlocutory review. Additionally, the judges refused to determine a universal predominance standard for FDCPA and FCCPA cases because this inquiry requires case-by-case analysis. Second, the judges considered whether there was "substantial weakness" in the district court's decision. Although the defendant argued that individualized inquiries would be required to identify class members and determine the purpose of the loan in contravention of the Rule 23 requirements, the Eleventh Circuit was satisfied with the district court's reliance on self-identification. Most importantly, the judges noted that the decision to certify the class was not the "death knell" for either party since the decision did not end the case. With the class certification stage being early in the litigation, the judges acknowledged that the record was largely incomplete. Without any impending events necessitating the need for immediate review, the judges held that interlocutory appeal was inappropriate here and denied the defendant's Rule 23(f) motion.

Bradach v. Pharmavite, LLC, Nos. 16-56598, 17-55064, 2018 WL 2250508 (9th Cir. May 17, 2018)

The U.S. Court of Appeals for the Ninth Circuit (Bea and Murguia, JJ., and Keeley, district judge sitting by designation) reversed the lower court's refusal to certify a class of purchasers of dietary supplements in reliance on the statement "Helps Maintain a Healthy Heart," which allegedly violated California consumer protection laws. First, the panel concluded that the plaintiff's state law claims were not pre-empted by the Federal Food, Drug, and Cosmetic Act (FDCA) because the "heart health" representation the plaintiff was challenging was a "structure/function" claim about the product's benefits. Thus, the lower court's finding that the plaintiff did not satisfy Rule 23's typicality requirement because his claims were pre-empted was in error. The panel further rejected the district court's conclusion that the proposed classes did not satisfy Rule 23's ascertainability, commonality, predominance and superiority requirements because it would be difficult to determine whether the putative class members viewed the statement as a disease prevention claim, which is pre-empted by the FDCA, or a structure/function claim, which is not. The panel observed that under California law, class members in certain consumer protection class actions are not required to prove individual reliance on allegedly misleading statements, but rather, whether members of the public are likely to be deceived. Thus, the district court's conclusion that it would need to inquire into the motives of each individual class member was premised on an error of law. The panel remanded to the district court to reconsider the class allegations.

Flynn v. FCA US LLC, No. 15-cv-0855-MJR-DGW, 2018 WL 3303267 (S.D. Ill. July 5, 2018), 23(f) pet. denied

Chief Judge Michael J. Reagan of the U.S. District Court for the Southern District of Illinois granted class certification, in part, to plaintiffs claiming the breach of implied warranties related to purchases of 2013-2015 Chrysler vehicles. More specifically, the plaintiffs alleged that the defendants designed and installed an "infotainment system" that is vulnerable to hackers seeking to take remote control of the affected vehicles and that unremedied vulnerabilities could allow hackers to access critical and noncritical vehicle systems. After dismissing a number of claims on summary judgment, the court analyzed the remaining claims under Rule 23. Both the nationwide and state classes satisfied the requirements of Rule 23(a). The "low hurdle" of commonality was satisfied, as the claims all rested on the same basic allegations of the defendants' actions leading up to and following the production of vehicles with the infotainment system. Typicality was also satisfied, as the claims arose from the same practice or course of conduct. The nationwide class, however, did not satisfy predominance because of the differences in state laws that underlay the Magnuson-Moss Warranty Act claims. State laws differed, for example, on requirements for privity and the definition of merchantability. However, the proposed state classes satisfied predominance, as there appeared to be "no difference" among class members with respect to proving merchantability and the defectiveness of the vehicles. Accordingly, the court granted class certification to the state classes alleging claims of the breach of implied warranties.

Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018)

Judge James E. Boasberg of the U.S. District Court for the District of Columbia preliminarily certified a class of asylum seekers for the purpose of adjudicating their motion for a preliminary injunction. The plaintiffs argued that the Department of Homeland Security (DHS) had adopted a de facto categorical policy of denying asylum seekers parole while their adjudication was pending, and that this policy contravened internal DHS regulations in violation of the Administrative Procedure Act. First, the court noted that the class certification inquiry was less demanding where, as here, the plaintiffs sought only preliminary certification. Next, the court concluded that all members of the putative class had standing, noting that the defendants' objection that not all asylum seekers had been injured by the challenged policy ignored the fact that the class was expressly limited to those who had been. The court also concluded that a common question of law and fact united the class members' claims where the plaintiffs challenged a common policy rather than a series of individualized determinations by various field offices. The court further rejected a defense argument that differing motives could defeat commonality because the court did not need to find a common intention in order to certify the class where the plaintiffs alleged violation of a common policy. Finally, the court concluded that the putative class was sufficiently cohesive to be certified to seek injunctive relief under Rule 23(b)(2) for largely the same reasons that it had found the prerequisites of Rule 23(a) to be met.

Bassett v. Credit Management Services, Inc., No. 8:17CV69, 2018 WL 3159791 (D. Neb. June 28, 2018), 23(f) pet. denied

Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska granted class certification to a proposed class alleging violations of the Fair Debt Collection Practices Act and the Nebraska Consumer Protection Act. Specifically, the plaintiff alleged that the defendant miscast its causes of action in county court cases to obtain attorney fees, wrongfully sought and obtained fees for in-house counsel, and wrongfully collected and kept prejudgment interest and attorneys' fees as undisclosed collection fees related to county court collection complaints. On review, the court granted certification to this Rule 23(b)(3) class. The class could be ascertained by review of the defendant's records and court records for the short period of time. Commonality was satisfied, as the court concluded that the "core of the plaintiff's suit [wa]s based on common facts and law." The court had already determined on summary judgment that the defendant violated the statutes in miscasting its complaint and obtaining attorney fees. The named plaintiff's complaint was typical of the class, as the plaintiff alleged that the defendant utilized the "same form complaint." Questions of law and facts common to the class members on liability also predominated over any questions that affected individual members, principally damages. Accordingly, the court granted class certification.

Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., No. 17-cv-00564 NC, 2018 WL 3126385 (N.D. Cal. June 26, 2018), 23(f) pet. denied

Magistrate Judge Nathanael Cousins of the U.S. District Court for the Northern District of California granted the plaintiffs' motion to certify a class of California consumers who purchased Canada Dry ginger ale products marketed with a "Made From Real Ginger" claim, alleging violations of California consumer protection statutes because the products contained only a ginger derivative. The court held that the plaintiffs were sufficiently typical of the class, rejecting the defendants' argument that one of the named plaintiffs could not show she was misled because it was not clear from her deposition testimony that she ever noticed the "Real Ginger" claim and that she believed the product had ginger root in it even before the claim. The court gave the named plaintiff the benefit of the doubt on this issue, both because she remembered a commercial with the "Real Ginger" claim that made her think the product contained ginger root, and because she never specifically testified that she always believed the product contained ginger root. The court also held that Rule 23(b)(3) was satisfied. Individual issues did not predominate because a consumer perception survey showed that 78.5 percent of respondents believed that "Made From Real Ginger" meant the product contained ginger root. The court cited the defendants' own internal marketing documents as support that the representation was material to a reasonable consumer, because those documents showed that a quarter of consumers listed the "Real Ginger" claim as one of the top five reasons they bought the product.

Reyes v. BCA Financial Services, Inc., No. 16-24077-CIV-GOODMAN, 2018 WL 3145807 (S.D. Fla. June 26, 2018)

Magistrate Judge Jonathan Goodman of the U.S. District Court for the Southern District of Florida granted in part and denied in part the plaintiff's motion for class certification in connection with the defendant's alleged violation of the Telephone Consumer Protection Act (TCPA), which prohibits the use of automatic telephone dialing systems and artificial voice to call a person's cellphone without consent. The defendant, a debt collector for health care companies, utilized "predictive dialer" and "interactive voice response" (IVR) technologies to contact debtors. According to the plaintiff, the defendant dialed wrong numbers using these technologies, in violation of the TCPA. The court held that the requirements of Rule 23 were satisfied. The court first held that the class was ascertainable and administratively feasible. In support of its motion for class certification, the plaintiff offered an expert, a managing director of a litigation support and data analysis management company who previously acted as a project director for a number of class action administrations. The expert opined that it was feasible to match telephone numbers with the proper class members using the defendant's telephone records. In response, the defendant sought to introduce its own rebuttal expert to challenge the plaintiff's methodology and moved to strike the expert's opinion. The court concluded that the plaintiff's expert was reliable, largely because numerous district courts had relied on her opinions in the past, and that ascertainability was therefore satisfied. Second, the court held that predominance was satisfied, rejecting the defendant's arguments that whether an intended caller gave consent, whether a called number belonged to a cellphone and to the name of the subscriber on the telephone account would all require individualized proof. Third, the court found that a class action was the superior method of adjudicating the plaintiff's claims, noting that TCPA claims are well-suited for class treatment. Finally, the court rejected the defendant's argument that the proposed class was defined as an impermissible fail-safe class.

As an initial matter, the court noted that the U.S. Court of Appeals for the Eleventh Circuit has not addressed whether a fail-safe class could be certified, and there was a split of authority among the circuit courts. Additionally, the court also held that the class definition did not clearly and neatly fit into the fail-safe class doctrine as to warrant denial of class certification. The court did amend the class definition by excluding class members who received IVR calls, since the plaintiff failed to allege that the defendant called her using this technology. After limiting the class definition, the court granted the plaintiff's motion for class certification.

Greene v. Sears Protection Co., No. 15-CV-2546, 2018 WL 3104300 (N.D. Ill. June 25, 2018), 23(f) pet. denied

Judge Jorge L. Alonso of the U.S. District Court for the Northern District of Illinois granted class certification, in part, to plaintiffs alleging that they entered into and paid for appliance-service agreements with the defendants that did not actually cover their products. The plaintiffs alleged that the defendants breached their agreements, were unjustly enriched and engaged in a deceptive business practice by selling "repair or replace" agreements to the plaintiffs even though the defendants had no intention of repairing or replacing the appliances covered by the agreements. The plaintiffs sought to certify a nationwide class on the breach of contract and unjust enrichment claims as well as a Pennsylvania class under that state's Unfair Trade Practices and Consumer Protection Law. On review, the court first rejected the defendants' request to exclude the plaintiffs' expert's damages opinion, finding that the expert — in contrast to the defendants' argument — sufficiently accounted for Sears' provision of repairs and was not speculative. The court then granted the motion for class certification, after limiting the temporal component of the proposed class definitions to comport with the relevant statutes of limitations governing the breach-of-contract claims. The court found that commonality was satisfied because the claims were predicated "on alleged conduct that was uniform as to all class members" — i.e., that Sears sold policies for products that it did not have any intention of covering. Predominance was also satisfied for the nationwide class even though the defendants asserted that they had no uniform coverage position because the plaintiffs also submitted evidence supporting their position that the defendants engaged in standardized conduct. In other words, the court rejected the defendants' chief contention that coverage determinations are fact-intensive and individual, thereby defeating predominance. The court also disagreed with the defendants' argument that predominance could not be met as to the Pennsylvania consumer protection claims based on the statute's justifiable reliance element. According to the court, the reliance element could be proven on a classwide basis based on class members' mere purchase of the agreements at issue. Accordingly, the court granted class certification.

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Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions