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In a recent decision, the U. S. District Court for the Eastern
District of New York applied Wal-Mart to a proposed Rule 23(b)(3)
class and held that common issues did not predominate because the
"key issue" was not common. Frey v. Bekins Van Lines,
Inc., 2012 U.S. Dist. LEXIS 46412 (E.D.N.Y. Apr. 2, 2012).
In Frey, the plaintiffs sought to represent a putative class of
people who claimed to have been overcharged by the defendant
Bekins, claiming that the overcharges stemmed from a company
policy. The plaintiffs claimed that the defendant – which
charged by weight – would initially provide a low
estimate, but when generating the final bill would either inflate
the true weight or fabricate it, thereby increasing the price.
Despite the allegation of a uniform policy, the court looked to the
reasoning in Wal-Mart and held that common issues did not
predominate. Citing Wal-Mart's focus on the factual dispute
most central to liability (in Wal-Mart, "the reason for a
particular employment decision"), the court in Frey refused to
certify a class because "[t]he key issue" did not have a
common answer. That issue – whether final prices that
exceeded estimates were overcharges attributable to the alleged
policy – was not common because there could have been
other reasons for the disparities. Echoing the language of
Wal-Mart, the court summarized its holding as follows: "Put
simply, the reason why any individual shipper's ultimate cost
exceeded the estimated cost is not an issue that is amenable to
class treatment."
Goodwin Procter LLP is one of the nation's leading law
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The firm combines in-depth legal knowledge with practical business
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multinationals, with a focus on matters involving private equity,
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services, intellectual property and products liability.
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