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The Class Action Chronicle

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The Class Action Chronicle Winter 2017 The Class Action Chronicle 1 / Class Certification Decisions This edition focuses on rulings issued between August 16, 2017, and November 15, 2017. Decisions Granting/Affirming In this issue, we cover two decisions granting motions to strike/dismiss class claims, Motion to Strike or Dismiss three decisions denying such motions, 26 decisions denying class certification or Decisions Denying Motions to reversing grants of class certification, 22 decisions granting or upholding class certifi- Strike cation, 10 decisions denying motions to remand or reversing remand orders pursuant Decisions Rejecting/Denying Class to the Class Action Fairness Act (CAFA), and 10 decisions granting motions to remand Certification or finding no jurisdiction under CAFA that were issued during the three-month period covered by this edition. Decisions Permitting/Granting Class Certification Class Certification Decisions Other Class Action Decisions 18 / Class Action Fairness Act Decisions Granting/Affirming Motion to Strike or Dismiss Decisions Decisions Denying Motions to Carlisle v. Normand, No. 16-3767, 2017 WL 4918997 (E.D. La. Oct. 31, 2017) Remand/Reversing In a putative class action involving an alleged therapist-patient relationship in drug court, Remand Orders/Finding CAFA Judge Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana Jurisdiction granted the defendant’s motion to strike the plaintiffs’ class allegations. The defendant Decisions Granting Motions to (and his company) served as clinical director of the drug court and recommended the Remand/Finding plaintiffs to the program. Under a negligence theory, the plaintiffs had sought to certify a No CAFA Jurisdiction class of individuals harmed by the defendants’ allegedly substandard treatment. Find- 25 / Contributors ing a therapist-patient relationship plausible, the court nonetheless dismissed the class allegations because common issues of fact or law did not predominate. Rather, the court explained that the negligence claims were “highly individual,” because they depended not only on the facts underlying the therapist-patient relationship but also the defendants’ breach of duty. Accordingly, the court struck the class allegations. Eldridge v. Cabela’s Inc., No. 3:16-cv-536-DJH, 2017 WL 4364205 (W.D. Ky. Sept. 28, 2017) Judge David J. Hale of the U.S. District Court for the Western District of Kentucky struck class allegations regarding two “consent revocation” classes in a Telephone Consumer Protection Act case alleging that the defendant made auto-dialed or prere- corded calls without consumers’ prior express consent or after consumers had told the defendant to stop calling them. The plaintiff sought to certify two classes of consumers who had been contacted without prior consent (“no consent” classes) and two class Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates skadden.com The Class Action Chronicle of consumers who had been contacted after telling the defen- were premature. Similarly, the court went on to hold that Great dant to stop calling them (“consent revocation” classes). The American’s arguments contending that the plaintiff was not part court granted the defendant’s motion to strike the two “consent of the proposed class and that the plaintiff proposed an imper- revocation” classes, noting that although the parties disputed the missible “fail safe” class were also merits issues, not issues of scope of those classes, the classes could be stricken under either improper pleading. interpretation. If, as the defendant argued, the classes consisted of consumers who had given and then revoked their consent, the class would not satisfy the predominance or typicality require- Cone v. Sanitarios Lamosa S.A. de C.V., No. 4:17-CV-00001, ments: Individualized inquiries into whether putative class 2017 WL 4532636 (E.D. Tex. Sept. 22, 2017), report and recom- members had revoked their consent would be necessary, and the mendation adopted by 2017 WL 4517973 (E.D. Tex. Oct. 10, 2017) named plaintiff was not a typical member of that class because In a putative class action involving allegedly defective toilet he alleged that he had never consented to be called, so he could tanks, Judge Amos L. Mazzant of the U.S. District Court for the not have revoked that consent. If, as the plaintiff argued, the class Eastern District of Texas adopted the report and recommenda- consisted of all consumers who told the defendant to stop calling tion of Magistrate Judge Kimberly C. Priest Johnson to deny them whether or not they had previously consented, the class the defendants’ motion to strike the plaintiffs’ class allegations. was a subset of the no-consent classes and redundant. The court Proposing five causes of action — strict products liability, breach further noted that there was a potential typicality issue with one of implied warranty, negligence, punitive damages and violations of the no-consent classes — because the definition referred to of the Texas Deceptive Trade Practices Act — the plaintiffs had marketing calls while the plaintiff had allegedly received debt sought to certify a class of “any and all consumers of toilet tank collection calls — but accepted the plaintiff’s explanation that models #3464, #3412, #3404, #3425, #3408, and #3471 manu- this was due to a drafting error and granted him leave to file an factured produced, designed, marketed, or distributed by the amended complaint to remedy the error. named Defendants.” The defendants argued that this description violated the threshold requirement of ascertainability, while the Decisions Denying Motions to Strike plaintiffs promised to clarify the proposed definition and possible subclasses when moving for class certification. Finding the description of the putative class sufficient, the court refused to AMP Automotive, LLC v. B F T, LP, No. 17-5667, 2017 WL 5466817 (E.D. La. Nov. 13, 2017) strike the class allegations. The court explained that the defen- dants’ motion was premature, because they could object to the The Telephone Consumer Protection Act (TCPA), as amended plaintiffs’ motion for conditional certification. by the Junk Fax Prevention Act, makes it unlawful to use a fax machine to send unsolicited advertisements. The plaintiff in this case alleged that B F T, LP, d/b/a Great American Business Prod- Riaubia v. Hyundai Motor America, No. 16-5150, 2017 WL 3602520 ucts (Great American) sent thousands of junk faxes in violation (E.D. Pa. Aug. 22, 2017) of the TCPA and various FCC regulations and sought to certify Judge C. Darnell Jones II of the U.S. District Court Judge for the a class of all subscribers of telephone numbers to which Great Eastern District of Pennsylvania, denied the defendant’s motion American sent unsolicited promotional facsimile transmissions to dismiss the plaintiff’s putative class action alleging that his within four years of the complaint and without the opt-out notice 2014 Hyundai Sonata’s “Smart Trunk” — a feature advertised as required by 47 U.S.C. § 227(b)(2)(D) and 47 C.F.R. § 64.1200(a) being able to automatically open the car’s trunk — was defective (4)(iii). Despite Great American’s contention that this definition in that it would often fail to open more than a few inches. The was administratively infeasible, Judge Jay C. Zainey of the U.S. defendant moved to dismiss the complaint on various grounds, District Court for the Eastern District of Louisiana denied the including lack of standing and failure to allege a defect. Specif- motion to strike, reasoning that early administrative concerns ically, the defendant argued that the failure of the trunk to open can be addressed by case management orders and do not warrant all the way every time was not a defect and that the plaintiff striking class allegations. Judge Zainey explained that whether could not maintain a claim on behalf of the class because some Great American’s faxes were solicited, complied with the TCPA of the class members had different vehicles (although all vehicles or complied with FCC regulations were issues of merit, not of in the class were equipped with the Smart Trunk feature). The improper pleading. Thus, the class definition was not necessarily court disagreed. First, the court noted that the plaintiff had administratively infeasible, and Great American’s arguments standing to pursue the class claims because he alleged a defect in 2 Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates The Class Action Chronicle his vehicle that was present in all of the class members’ vehicles. Riffey v. Rauner, 873 F.3d 558 (7th Cir. 2017) The court rejected the defendant’s argument that there was no The U.S. Court of Appeals for the Seventh Circuit (Wood, C.J., defect just because the “Smart Trunk” did not open all of the way Manion and Hamilton, JJ.) affirmed the district court’s refusal each time. Taking all of the allegations in the complaint as true, to certify a Rule 23(b)(3) class of health care assistants seeking the court noted that consumers were led to believe that the smart a classwide refund of fair-share fees they paid to a union for trunk would open completely each time. Next, the court found collective bargaining representation. The plaintiffs, considered that although the model of the vehicle differed between class public employees for the purposes of collective bargaining, were members, the same mechanism — the Smart Trunk — was pres- subject to “fair-share fees” that were collected by the union from ent in each; thus, the plaintiff had standing to pursue the claim on those who chose not to join the union in order to help cover the behalf of the class. Therefore, the court denied the defendant’s cost of activities, including the collective bargaining representa- motion to dismiss and allowed the claim to proceed. tion furnished to everyone. The plaintiffs sought a refund of the fair-share fees paid by all non-union-member assistants, arguing Decisions Rejecting/Denying Class Certification that the fair-share fees violated the First Amendment.
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