This edition focuses on rulings issued between May 15, 2017, and August 15, 2017. In this issue, we cover four decisions granting motions to strike/dismiss class claims, five decisions denying such motions, 27 decisions denying class certification or reversing grants of class certification, 24 decisions granting or upholding class certification, 10 decisions denying motions to remand or reversing remand orders pursuant to the Class Action Fairness Act (CAFA), and nine decisions granting motions to remand or finding no jurisdiction under CAFA that were issued during the three-month period covered by this edition.
Class Certification Decisions
- Decisions Granting/Affirming Motion to Strike
- 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 CACAFAurisdiction
- Decisions Granting Motions to Remand/Finding No CACAFAurisdiction
A unanimous panel of the U.S. Court of Appeals for the Sixth Circuit (Gibbons, Rogers and Donald, JJ.) held that the district court did not abuse its discretion by striking class claims and declining to reopen discovery after the plaintiff missed his deadline to file a motion for class certification. The panel concluded that the plaintiff had not given a reasonable excuse for why he failed to file a class certification motion in a timely manner, noting that the plaintiff had not made any request before the class certification deadline for that deadline to be extended. Instead, the plaintiff only requested a status conference to discuss certain newly produced documents without reference to the class certification deadline, and he had not, even on appeal, presented any arguments as to how the belated discovery production had any effect on his class claims.
Oom v. Michaels Cos., No. 1:16-cv-257, 2017 WL 3048540 (W.D. Mich. July 19, 2017)
In a case over the use of tape in mounting and framing artwork for preservation, Judge Paul L. Maloney of the U.S. District Court for the Western District of Michigan struck the class allegations on the defendant’s motion. The putative class included individuals who purchased preservation mounting but who did not receive it, which rendered the class nonascertainable: Class membership would be determined through individual inquiries, including physical inspections of each piece of art, that could not be avoided without making the class overbroad. The court also held that there was no typicality, commonality or predominance because the in-store signage, representations and reasons for purchasing preservation mounting varied. Indeed, the court noted, the named plaintiffs could not even prove their own 25 claims using common proof, let alone the claims of putative absent class members.
Martinez v. TD Bank USA, N.A., No. 15-7712 (JBS/AMD), 2017 WL 2829601 (D.N.J. June 30, 2017)
Judge Jerome B. Simandle of the U.S. District Court for the District of New Jersey granted a motion to strike class allegations in a putative class action where the plaintiff alleged that the defendants violated, inter alia, the Telephone Consumer Protection Act (TCPA) by placing telephone calls in connection with the defendants’ efforts to collect consumer debts. The court concluded that the class definition — which included “individuals called without their prior express consent” — was an improper “fail-safe class” because it sought to create a class consisting only of individuals to whom the defendants were necessarily liable under the TCPA. The court reasoned that the proposed class would require extensive fact-finding to determine whether the putative class members failed to provide express prior consent to be called. Accordingly, the court struck the plaintiff’s class allegations.
Martinelli v. Johnson & Johnson, No. 2:15-cv-01733-MCE-DB, 2017 WL 2257171 (E.D. Cal. May 22, 2017)
Judge Morrison C. England, Jr. of the U.S. District Court for the Eastern District of California granted the defendant’s motion to deny nationwide class certification of a class of purchasers of Benecol Spreads, challenging the label representations that the products contained no trans fats or trans fatty acids. The court held that, under California’s choice of law rules, the plaintiff’s nationwide claims would require application of the laws of all 50 states, as the claims involve non-California residents and out-of-state transactions. The court determined that there were material differences between California laws and other states’ laws on breach of warranty, unjust enrichment, negligent representation, consumer protection and fraud; that those states have an interest in applying their laws, and California’s interests were attenuated. The court agreed to consider the pre-emptive motion before discovery was complete and before the plaintiff filed her certification motion, noting that no additional discovery would reveal a scenario in which California law could be applied to all of the class members’ claims.
Decisions Denying Motions to StrikeJohnson v. Ally Financial Inc., No. 1:16-CV-1100, 2017 WL 3433689 (M.D. Pa. Aug. 10, 2017)
Judge Christopher C. Conner of the U.S. District Court for the Middle District of Pennsylvania denied the defendant’s motion to strike class allegations pertaining to the defendant’s telephonic debt collection practices. The plaintiff sought to certify two subclasses: (1) an “autodialer” subclass of putative class members who received an unconsented call from the defendant with the aid of an automatic telephone dialing system; and (2) a “wrong number” subclass of putative class members whom the defendant dialed using an automated telephone dialing system when it had intended to call a different person. The court first concluded that the defendant did not demonstrate that the plaintiff’s autodialer subclass was facially uncertifiable. Specifically, the court disagreed that the putative class was an impermissible “fail-safe” class, explaining that the defendant’s business records could be used to determine whether putative class members fell within the class definition. The court also held that discovery was necessary to determine whether the wrong number subclass impermissibly contained members with disparate claims.
Greene v. Gerber Products Co., No. 16-CV-1153 (MKB), 2017 WL 3327583 (E.D.N.Y. Aug. 2, 2017)
Judge Margo K. Brodie of the U.S. District Court for the Eastern District of New York denied the defendant’s motion to strike nationwide class allegations in this action against the manufacturer of an infant formula that allegedly misrepresented that the formula would reduce the risk of allergies. The defendant argued that individual factual issues and differences among relevant state laws defeated commonality and predominance. The court noted that motions to strike class allegations are “rarely successful” and often “premature” and accordingly held that determining whether Rule 23’s requirements were satisfied should await the class certification stage — “when a more complete factual record can aid the Court in making th[e] determination.” The court also noted that before class discovery, it could not determine how many states’ laws would be implicated in the action and how those laws varied. Because the plaintiffs’ theory for class certification was not yet foreclosed, the court deemed it inappropriate to strike the class allegations.
Victorino v. FCA US LLC, No. 16cv1617-GPC(JLB), 2017 WL 3149591 (S.D. Cal. July 25, 2017)
The defendant moved to deny certification of a class of California consumers seeking damages and injunctive relief under various California consumer statutes, alleging that certain Dodge Dart vehicles were equipped with defective manual transmission systems. Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California denied the motion. The defendant argued that the plaintiffs’ counsel violated an ethical obligation under California state law requiring an attorney to communicate to a plaintiff all settlement offers, and were thus inadequate. Applying Rule 23(g), the court held that the plaintiffs’ counsel demonstrated that they had done substantial work in investigating claims in the case, and that they were highly qualified and competent based on their significant experience litigating class actions. The plaintiffs argued that the settlement offer was invalid as a matter of law and thus did not have to be communicated, and would have been rejected anyway. The court concluded that while the plaintiffs’ counsel was obligated to communicate “any” settlement offer regardless of validity under California Rule of Professional Conduct 3-510, the failure to communicate such an offer by itself does not demonstrate inadequacy of counsel under Rule 23(a)(4). While the failure to convey the offer raised questions as to the plaintiffs’ counsel’s integrity and trustworthiness to represent the interest of the class, the court concluded that the plaintiffs’ counsel had reasons (though ultimately incorrect) to believe they did not need to communicate the settlement offer, and noted that the defendant failed to point to other acts of misconduct rendering class counsel inadequate. However, the court noted that discovery was still ongoing, and denied the motion subject to the adequacy of counsel being raised again in conjunction with the plaintiffs’ motion for class certification.
In this multidistrict litigation (MDL) proceeding...
