Class Certification

No resolution of growing rift on acceptable method for establishing ascertainability for small-dollar claims

By: Jill M. Hutchison


IStock_000009666174MediumThe Supreme Court recently declined to wade into a developing circuit split on the question of just what constitutes an ascertainable class under Fed. R. Civ. P. 23(b)(3) class. In the case of many consumer products, particularly those that are consumable, like food, cosmetics, and supplements, the defendant is unlikely to have records to document individual customers’ purchases, and the consumers are unlikely to have kept receipts. In such cases, some court have permitted class members to self-identify by affidavit and have held that this identification method is acceptable to create an ascertainable class.

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California District Courts Continue to Assess the Implications of Mazza

By: Mara Ludmer and Kelly M. Morrison

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The Ninth Circuit’s decision in Mazza v. American Honda appeared to be an instant game changer, providing defendants across the Circuit with an easy way to oppose certification of nationwide classes seeking remedies under California consumer protection laws.  The plaintiffs in Mazza alleged that Honda had misrepresented the safety features of its Acura vehicles in brochures, television commercials, and print advertisements.  On appeal, the Ninth Circuit held that the district court had “erroneously concluded that California law could be applied to the entire nationwide class.”  And “[b]ecause the law of multiple jurisdictions” would apply to “any nationwide class of purchasers,” the Ninth Circuit held that “variances in state law [would] overwhelm common issues and preclude predominance for a single nationwide class.” 

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Rust-Oleum’s Motion to Dismiss “Kitchen Sink” Consumer Fraud Complaint Results in Mixed Bag Ruling

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By: Reena R. Bajowala

On January 7, 2016, the Northern District of Illinois ruled on a motion to dismiss a 10-count complaint applying the law of all 50 states and the District of Columbia in a suit against manufacturer Rust-Oleum.  The 40 putative class plaintiffs hail from 27 states in this multi-district, consolidated litigation.  The suit alleges that a Rust-Oleum product – Deck & Concrete Restore – contains latent defects that result in bubbling, chipping or other premature failure.  Rust-Oleum moved to dismiss, asserting what appears to be every conceivable pleading defect, jurisdictional issue and structural claim problem.  The 91-page opinion painstakingly trudged through the arguments.  On balance the majority of the rulings favor the plaintiffs, finding arguments premature or fact-driven.  Among the debris, however, Rust-Oleum prevailed on a few fronts.  First, plaintiffs alleged that Restore’s limited warranty was unenforceable because the limitations were not conspicuous.  Rust-Oleum argued that damage limitations need not appear conspicuously on a limited (as opposed to a full) warranty.  The court agreed, finding that the warranty was clearly labeled “limited,” precluding application of the Magnuson-Moss Warranty Act.

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CAFA PRIMER

By: Kate SpelmanCafa

This post is intended to give readers a basic understanding of the Class Action Fairness Act of 2005 (“CAFA”).  This post is not intended to be a comprehensive review or recitation of the law.

Many litigators perceive state courts as more plaintiff-friendly than their federal counterparts.  As such, plaintiffs often prefer litigating class action lawsuits in state court, while defendants prefer removing these suits to federal court.

However, federal courts have limited subject matter jurisdiction, as they can generally hear only two types of cases: (1) cases involving federal law (“federal question jurisdiction”), and (2) cases involving parties from different states where the amount in controversy exceeds

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