A recent federal court decision from Missouri in litigation involving Bisphenol-A ("BPA") reads like a law school "issue-spotter" exam on class certification. In denying motions to certify various classes in multidistrict litigation, the court's comprehensive opinion is instructive as to many of the key issues posed by Rule 23—as well as the often problematic nature of class certification in the MDL context.

In In re Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation, the court addressed certification motions that would affect 24 cases consolidated in the Western District of Missouri. The cases involve the six defendants' use of BPA in baby bottles and sippy cups. The court rejected the plaintiffs' alternative proposals to certify separate statewide classes against each defendant and to certify three multi-state classes.

With respect to the proposed statewide classes, the court said that the request "misapprehends the transferee court's role in an MDL." Because MDL cases are consolidated only for pretrial proceedings, and are remanded to the originating court for trial, "[m]atters related to the administration of individual trials—or matters that relate to only a few cases—should be decided by the court that will actually conduct the trial." Yet certification of each of the proposed statewide classes would affect only a few cases. As the court put it, the plaintiffs' motion "essentially ask[s] the undersigned to decide, for instance, that a class of Washington consumers should be certified for trial in the Western District of Washington." Because this issue, and similar issues for other statewide classes, would each affect only a handful of cases, and would relate to the manner in which the cases should be tried, the court held that they should be decided by the transferee courts.

As to the proposed multi-state classes, the plaintiffs elaborately attempted to circumvent Rule 23's commonality requirement by grouping together those states whose laws they deemed similar to each other. The plaintiffs proposed three separate multi-state classes, one for each of their claims of unjust enrichment, state consumer protection laws, and breaches of the implied warranty of merchantability. In designing each of the three classes, the plaintiffs eliminated states whose applicable law differed in some material respect from the states included in the group, arguing to the court that the states left in each class were sufficiently similar that they could be lumped together as presenting common issues of law. Moreover, the plaintiffs proposed that their unjust enrichment class, which would encompass 45 jurisdictions, be divided into two subclasses, one consisting of states that followed the Restatement (First) of Restitution, and one consisting of states with the additional requirement that the defendant know about the benefit conferred by the plaintiff.

The court found this approach inadequate, noting at the outset that the process of validating the plaintiffs' legal survey of 50 states and the District of Columbia would be excessively complicated. The difficulties involved were illustrated by the defendants' challenges to some of the state classifications, which resulted in concessions by the plaintiffs that they had indeed made some mistakes in their initial analysis. Other challenges from the defendants remained in what the court deemed "legitimate"dispute, both precluding a finding that the proposed groupings satisfied Rule 23's commonality requirement and presenting "significant manageability concerns." The court also observed that even if the state laws had been correctly grouped, the application of those laws might be different even across those states that used similar language.

The court further took issue with many of the plaintiffs' suggested common issues of fact, drawing on the recent Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes. For example, while the plaintiffs characterized "testimony regarding the purchase of their Baby Products" as common, the court responded that "[o]ne Plaintiff's actions, decisions, knowledge, and thought processes are unique to that Plaintiff." The court also rejected the notion that damages for unjust enrichment "can be measured simply by calculating the benefit retained by Defendants," on the ground that whether a defendant's retention of the purchase price is "unjust" requires considering "what a particular plaintiff received in exchange," such that a plaintiff who "completely used a product without encountering ill-effects or other difficulties and can only declare after the fact that s/he would not have purchased the goods had the truth been known" may not have unjustly enriched the seller. The measure of damages would be an individualized inquiry, and different states use varying measures of damages.

The court also held that each plaintiff's knowledge about the BPA controversy, another individual issue, would be relevant because "[a] consumer who knew about the controversy and also knew that the bottle s/he purchased contained BPA would have all the knowledge Plaintiffs allege should have been disclosed." While the plaintiffs contended that a consumer's knowledge would be relevant only to damages, the court not only disagreed, but also noted that even a damages issue "is still an individual issue that must be considered in evaluating predominance."

The court thus held that common issues did not predominate over individual issues, concluding that "[t]he time and other resources necessary to resolve the individual [legal and factual] issues in a single forum, in the context of a single case, in front of a single jury, is staggering." By contrast, the court concluded, "the common factual issues are relatively easy to prove."

For similar reasons, the court held that the plaintiffs also could not establish superiority of the class action mechanism. In addition to the manageability issues posed by the proposal to group together different states' laws, the court noted "the need to elicit testimony from every single class member," particularly in light of the demand such a lengthy case would impose on the jury and the low likelihood, given the amount of damages at stake, that class members would travel far to testify.

Lastly, the court held that the two class representatives were inadequate. The plaintiffs omitted one of the defendants from their consumer protection claims and two of the defendants from their warranty claims, apparently, at least in part, because the class representatives were from states whose laws did not support these claims. Absent an alternative explanation, the court declined to conclude that the representatives were adequate, holding that "[t]here is no reason, for instance, that a Missouri consumer should be deprived of his/her opportunity to pursue a warranty claim just because the class representative cannot assert such a claim on his/her own."

The court's opinion demonstrates the myriad obstacles to certifying certain class actions in the MDL context, particularly where the claims are based on the laws of different states. While some courts might be willing to tackle ascertaining the similarity or dissimilarity among the applicable laws of different states, particularly where a smaller universe of states is involved, many courts can be expected to take a similar approach to that of the BPA court and simply refuse to certify a class. Where the importance of differences in state laws is magnified by their impact on individualized issues, MDL transferee courts can justifiably be expected to simply throw up their hands and leave certification to the originating courts—which, given the low likelihood of trial, will have the effect of denying certification with prejudice.

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