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Class Action Countermeasures

Discussions of the Strategic Considerations Involved In Class Action Defense

The Guardianship Model of the Class Action

Posted in Scholarship

Northwestern Law professor Martin Redish should be very familiar to readers of this blog. I’ve covered his work before, from his constitutional challenges to the class action through his critique of the cy pres remedy to his surprising turn to what looked like a “trust model” of the class action last year. Professor Redish’s work is—unlike many modern class action scholars—not easily classified. I’ve said before, and I’ll likely say again (I’m certainly saying it now): you ignore Professor Redish at your peril.

So, when I saw he had a new article coming out in the Emory Law Journal, “Rethinking the Theory of the Class Action: The Risks and Rewards of Capitalistic Socialism in the Litigation Process,” I sat down with great anticipation to read it.

The thesis of the article is, while hardly surprising, certain to be controversial. Professor Redish reaffirms his recent argument that the class action should be treated as a form of trust or guardianship (what he calls the “Guardianship Model”).

As background, he points out that there have traditionally been three competing models of the class action:

 To this point, it would be accurate to assert that practitioners, scholars, and jurists have either proposed or implicitly assumed one of three underlying theories of the modern class action:

(1) the Aggregation model;

(2) the Entity model; or

(3) the Private Attorney General model.

The latter two models—at least in the ways in which scholars have employed them—must be categorically rejected. While the Private Attorney General Model implements legitimate purposes served by the modern class action, it is grossly incomplete and therefore leads to a skewed perspective on the class action, which effectively alters the underlying substantive law being enforced in democratically and constitutionally impermissible ways. The Entity Model, on the other hand, has absolutely nothing to recommend it. On the contrary, the model represents an alchemy-like transformation of the nature of underlying substantive rights in a manner that violates core notions of American democratic theory.

(Emphases added, internal footnotes omitted.) This is not to say, however, that Professor Redish approves of the Aggregation Model, either. Professor Redish believes that the Aggregation Model does not account for the unique nature of the attorney-client relationship in a class action, where the attorney is the driving force behind the litigation, and may experience serious conflicts of interest with various class members.

His solution is to propose a series of modifications to Rule 23, based on what he cals the “Guardianship Model” of the class action. As he explains that model:

in order to prevent the harms caused by the departures from the traditional attorney–client relationship the class attorneys must be deemed to function as guardians of the interests of the absent class members. By imposing on class attorneys the fiduciary obligations which guardians have to their wards, our procedural system should be able to obtain the benefits of the modern class action while simultaneously avoiding at least most of the pathologies to which the current practice gives rise. I should emphasize that the analogy to a legal guardian is by no means perfect. In some ways, class attorneys function as traditional attorneys, qualitatively different from the traditional guardian model. Thus the Guardianship Model of the modern class action represents a synthesis of traditional procedural aggregation and a form of guardianship, reminiscent of the fiduciary manner in which guardians legally function under long established principles of equity.

(Emphases added, internal footnotes omitted.)  To formalize this new way of looking at the class action, Professor Redish proposes four reforms:

  • inserting a “significant likelihood of meaningful relief for the bulk of the absent class members” requirement into Rule 23(a), the section of Rule 23 that applies to all class actions;
  • changing attorney compensation so that it relates only to the amount actual class members receive;
  • abolishing cy pres relief; and
  • treating the class attorney as the real party in interest for the purposes of preclusion.

These are all interesting ideas. And while I’m usually the first to point out when something is not likely to actually be adopted, I’m aware that the Rule 23 subcommittee is currently entertaining proposals on at least one of these reforms. So these are also worth taking seriously.

I have two other brief reactions to this article.

First, I’m surprised that Professor Redish doesn’t mention the work of University of Miami law professor Sergio Campos, who has also written extensively on looking at class actions as trusts instead of aggregation devices.  Indeed, despite their conflicting views on the usefulness of the class action in general, they converge remarkably on the proposed reform.  That alone is extremely interesting.

Second, I think that Professor Redish may be overcomplicating the issue somewhat. Granted, his proposals are colored in part by his belief that Rule 23 as it currently stands likely violates the Rules Enabling Act. However, reining in the “pathologies” with which he is most concerned could also be accomplished by strengthening enforcement of Rule 23(a)’s adequacy requirement and Rule 23(g)’s adequacy of counsel requirement. While the text of both of these requirements counsels courts to keep a close eye on named plaintiffs and class attorneys as fiduciaries of the proposed class, the reality is that many courts provide only a cursory examination of adequacy.

Regardless of whether I personally agree with all of Professor Redish’s conclusions, this is easily one of the most important class-action articles of the year, and Professor Redish’s proposals are worth a serious look. Scholars sympathetic to class action plaintiffs frequently propose new ways of looking at the class action, which can often be interpreted as ways of getting around the restrictions imposed by Rule 23.  This is the first defense-side argument for a new way of looking at class aggregation, and that alone makes it worthy of study.  But, just as important, Professor Redish’s proposals can have important practical effects.  Courts should study them to see how they might better fulfill their own fiduciary duties. And defense lawyers should study them because—like much of Professor Redish’s work—these provide the seeds for some excellent oppositions to class certification.

A Theory of Novel Injury Theories

Posted in Uncategorized

Back in 2010, noted legal scholar Marc Galanter wrote an article on “The Dialectic of Injury and Remedy.” It contains only one explicit mention of class actions, but, in general, touches on some points that recur frequently for class action lawyers.

Professor Galanter’s primary argument is that both injuries and remedies are socially constructed. That’s a point that should come as no great shock to lawyers: we spend our careers engaging with a very specific and well-known social construct. But Professor Galanter zeros in on the fact that, like many social constructs, ideas about injury and remedy change over time. Things that the ordinary citizen would have accepted as just plain bad luck a generation ago now—because of advancing technology, changed social attitudes, or an increase in litigiousness, take your pick—are considered injuries that require legal remedies.

Or, as he puts it:

 So injury and remedy are not fixed and determinate, but moving and changing. Is this change random, or is there a pattern? Is there some force driving the moving frontier? These questions take us back to naming and blaming—to changing perceptions of injury and changing attributions of responsibility for causing injury and providing remedy. In the long run, new ways of envisioning and understanding troubles and remedies are the hidden fount and engine of our expanding sense of injustice.

Crudely, our sense of legal injury and remedy reflects the changing capabilities of human society. Human inventiveness, accumulated in science, technology, and social organization, has enlarged our capacity to prevent and address many kinds of harm. Think of inoculations, electrical insulation, and safer aircraft. As more things are capable of being done by human institutions, the line between unavoidable misfortune and remediable injury shifts. The realm of injury is enlarged.

(Emphasis added, footnote omitted.)

Why is this sociological observation important to class action lawyers? Because the evolution of the class action, which we often attribute to “adventuresome” plaintiffs is just as attributable to changes in the understanding of injury and remedy. And frequently, certification opinions hinge on whether the judge believes that there is an injury that requires a class action to remedy it. The classic cases Castano v. American Tobacco Co. and In re Rhone-Poulenc Rorer grappled with the concept of the “immature tort”; really just a question of whether a novel injury theory (“addiction” for Castano, “serendipity” for Rhone-Poulenc Rorer) could justify aggregating a series of personal-injury lawsuits into bet-the-industry litigation. And it’s not hard to read the Dukes opinions, both majority and dissent, as arguing over whether being subjected to a corporate culture that was “vulnerable” to gender discrimination could support a class action.

Novel theories of injury are, in short, one of the chief engines of the class action. And so it is vitally important that class action lawyers learn to question the injury theories that show up in complaints.

Professor Galanter’s argument is largely neutral on whether the expansion of our understanding of injury is a good thing; he treats it more as a historical inevitability. But he does offer three observations about “the future of injury,” all of which are worth some attention.

  • First, he points out that, because we tend to construct injuries by analogy, the more injuries we recognize, the more we are likely to find, even if we are remedying the many we already know about. This counsels against recognizing too many inventive injuries today.
  • Second, he points out that the more injuries we find, the more we will be forced to ration out remedies. Society’s resources are finite, after all. This is a powerful point for defense lawyers; providing a legal remedy for a largely theoretical or unrecognized injury takes up resources that could be used to better effect somewhere else.
  • Third, because our understandings of injury and remedy shift over time, some seemingly frivolous claims may become mainstream in the future. But, by the same logic, other claims that seem to make sense now will seem foolish in a few years’ time. The trick is to recognize the trajectory various injuries and remedies are on, and, where appropriate, to call that to the court’s attention.

As its title suggests, “The Dialectic of Injury and Remedy” is not completely free of academic jargon. But, for the most part, it’s written in deceptively simple prose. It’s well worth the look for any class action lawyer who needs to wrap her head around arguing cutting-edge theories of injury or damages.

 

The State of the Merger Class Action

Posted in Scholarship

Merger-challenge class actions have become very popular in the last decade. (For a great source of data, check Cornerstone Research’s surveys on the subject.) They operate similar to traditional securities class actions, but have found a way of resurrecting the sense of urgency that the Private Securities Litigation Reform Act (PSLRA) removed; they do it by litigating deals that are already in progress. Because the litigation threatens to disrupt an otherwise-lucrative deal, it is likely that the parties will pay to settle it quickly.

In general, merger class actions have gained a reputation as “low-hanging fruit” for class action firms looking for a quick buck. One recent paper, by “Deal Professor” Steven M. Davidoff, Penn Law’s Jill Fisch, and Fordham Law’s Sean J. Griffith, Confronting the Peppercorn Settlement in Merger Litigation: An Empirical Analysis and a Proposal for Reform, argues that merger litigation that results in just disclosures tends to offer no benefit whatsoever to shareholders (making them the proverbial “peppercorn” settlement). (By contrast, merger litigation that results in some amendment to the deal offers at least minimal value, but “amendment settlements” tend to be rarer beasts.)

Washington University’s Adam B. Badawi published an interesting strategic look at the merger class action last year in the Washington University Law Review. In Merger Class Actions in Delaware and the Symptoms of Multi-Jurisdictional Litigation, he examines two seemingly contradictory trends involving the Delaware Chancery Court’s role in merger class actions: from 2005-2011, plaintiffs were turning to other courts as venues for merger challenges. But starting in 2011, cases began to return to Delaware. The exodus from Delaware is largely understood to have occurred after the Chancery Court grew more critical of merger class actions.  Badawi theorizes that the return may be driven by strategic concerns:

It appears that filing a case in Delaware may provide a number of strategic benefits to out-of- state counsel who have lost the race to the courthouse in a non-Delaware jurisdiction. Given that foreign jurisdictions often select lead counsel on the basis of the first to file the case, out-of-state counsel who lose the race to the courthouse have little to gain by filing in that foreign jurisdiction. If, however, these counsel have a plausible chance at being named as lead counsel in Delaware—where the selection of lead counsel largely depends on the size of a plaintiffs’ shareholdings and the perceived quality of its law firm—they can file in Delaware.

(Emphasis added, internal footnote omitted.)

Most interesting, though, is the recent study by Case Western’s C.N.V. Krishnan, Steven Davidoff, and Vanderbilt’s Randall S. Thomas, Zealous Advocates or Self-Interested Actors? Assessing the Value of Plaintiffs’ Law Firms in Merger Litigation. This paper surveys a large number of merger lawsuits over the last decade, and concludes that they can be broken into two tiers. The top tier are brought by the top five to ten plaintiffs’ firms at any given time, involve more contentious deal terms, more frequent docket activity, and result in greater benefit to shareholders. The bottom tier are brought by the remaining three hundred or so firms that have filed merger class actions, and look a lot more like the stereotypical merger lawsuit.

For most corporate defendants, merger class actions do not occur with the same frequency as other litigation. So it is well worth the time to collect information on the landscape should you be considering a large deal. These three studies are an excellent place to start.

 

 

What Is the Standard for Class Certification?

Posted in Certification

The answer is nowhere near as simple as you might think. Everyone knows that a court is supposed to conduct a “rigorous analysis,” but what that means in practice is not quite as clear.

For example, last year, the Supreme Court (in dicta) made a statement about Rule 23 that many, including myself, thought would reverberate throughout class action cases in the years to come. In American Express Co. v. Italian Colors Restaurant, it said that Rule 23 “imposes stringent requirements for certification that in practice exclude most claims.” A year later, only one court has mentioned the Supreme Court’s characterization, let alone applied it. By contrast, in that same time, a number of courts have continued to follow the Second Circuit’s dictate that Rule 23 be given a “liberal rather than restrictive construction,” or held that courts should “err in favor” of certification.

Similarly, the degree to which a “rigorous analysis” may require further factual inquiry still varies by jurisdiction. The Southern District of Texas has decided that Justice Scalia’s admonition that Rule 23 requires affirmative evidence applies to every facet of the Rule, even those, like adequacy, that courts have traditionally enforced only loosely.  Most courts would not go that far.

The fact is that the standard applied on the ground for class certification still varies wildly from court to court. Some of these variations come from simple error, such as the handful of district courts in the past year that still treated allegations in pleadings as true for certification.

Penn law professor Tobias Barrington Wolff believes that the variation comes from the fact that courts are granted wide discretion to decide class certification. In his article Discretion in Class Certification he comprehensively surveys the various ways in which courts have employed that discretion, both to certify classes, and to deny certification even when there is no textual requirement to do so. Some of the examples he provides stretch his thesis a little too far. Courts certifying a class under Rule 23(b)(3) have every reason to consider manageability; it’s built into the text of the Rule. Similarly, while Judge Posner’s opinion in In re Rhone-Poulenc Rorer and the majority opinion in Castano (two cases he contends declined certification despite the lawsuit having met all of Rule 23′s requirements) both discuss the difficulty of certifying classes in “immature torts,” they also both rely on the predominance requirement as spelled out in Rule 23.

But while Professor Wolff may have overstated the degree to which courts exercise their discretion, he makes a cogent argument as to why that discretion is necessary, given the rapid advancement of litigation technologies compared with the slower pace of changes to legal procedure. He argues that this discretion is a necessary “safety valve” for Rule 23, allowing courts to deny certification in individual cases rather than forcing rulings that would turn Rule 23 upside down on a regular basis.

And it’s true, as I’ve written elsewhere that appellate and trial courts have a number of strategies for cabining class action rulings with which they disagree.

But that doesn’t obscure the real lesson here. And that lesson is: that boilerplate about class certification standards at the start of your brief? Treat it as more than just boilerplate, because this is an area where it’s possible to lose the certification debate before you’ve even started.

I’m Back (Baby)

Posted in Uncategorized

I’d like to apologize for my unannounced absence over the last few months (and say a public “thank you” to those who contacted me to make sure I was OK). I had some writing projects (including the 2015 edition of the Class Action Playbook), and a new baby boy that demanded my attention. But I’m back, and I should be back to a regular publishing schedule going forward.

While I was on my unannounced hiatus, I gave some thought to how this blog works best, and so I’m going to make a few changes for the foreseeable future. In the past, I’ve published a post on a case each week and then a quick summary of some more theoretical work.

While the “case a week” format is attractive for this busy practitioner, there are plenty of blogs that already provide that service. Class Action Countermeasures has always worked best when it’s either spotting new trends or going over ground not everyone else does. As a result, I’m going to cut back to one post a week instead of two, but they will be in more depth. Some will be on academic or strategic topics. But others will cover broader class action topics. What do I mean by that? I mean that, instead of grabbing a recent case and just recapping it, I’ll try to put developments in context, like this post on motions to strike, or this one on PR tactics. These take a little longer to write, but I think (and my stats reflect) that they’re very popular.

So come back next Wednesday, when I’ll be diving back into some interesting trends and articles.

[And, of course, let me know if you would like a review copy of the new Playbook]

The Cost-Conscious Plaintiff

Posted in Scholarship

After years in the class action defense bar, I’ve learned that few things will get the average non-lawyer to think I’m doing God’s work more than talking about class action attorneys’ fees. The general consensus is that while all lawyers overcharge their clients, class action lawyers do it more–and more spectacularly–than most.

And that’s why it’s so surprising to read a recent article for the DePaul Law Review from law professors Morris A. Ratner and William B. Rubenstein titled Profit for Costs, which argues that, in addition to attorneys’ fees, class action plaintiffs’ lawyers should be allowed to mark up their photocopying and expert expenses. Or, as they put it:

[F]ocusing on law firm investments, we explore how enabling cost profits might funnel resources to cases that are meritorious but presently underfunded, thereby increasing access to justice.

I’ll leave it to others to debate the policy implications of this proposal (although a few flaws are apparent right away, including a few the authors acknowledge).

I’m more interested in how Professors Ratner & Rubinstein analyze the effect costs have on plaintiffs’ work, in no small part because Professor Ratner used to be a plaintiffs’ lawyer himself. And there are two primary implications they identify. First, plaintiffs’ lawyers may not take on cases that require too much expert development as opposed to just motions practice:

[A] firm considering investing in two cases, one involving high costs and low attorney time and the other involving relatively low costs and high attorney time, will invest in the latter case because the possibilities of fee profits and fee multipliers—with no possibility of profiting from costs—makes the investment much more attractive. This means that a set of high-costs cases will likely not be pursued, even if the odds of prevailing are similar.

The authors provide a table that develops a few examples of what they mean by high-cost versus low-cost cases. What’s most interesting is that the low-cost cases, at least according to their descriptions, are more likely to get certified than the “meritorious” high-cost cases. Some enterprising law student might look at whether not making costs a profit center might actually screen out cases that should not be class actions. (I’d also point out briefly that Professor Ratner’s earlier work undermines the decision-making model presented here; according to him, plaintiffs’ firms are very poor at guessing what their fees will look like.)

Second, the authors write that cost investments may drive some early settlement decisions:

Because attorneys receive relatively little reward for their cost in- vestments, they may be tempted to settle cases on the eve of such investment points. For example, a firm may:

•  Work a case through motion practice, but settle before investing significantly in outside experts;

•  Avoid or defer moving for class certification, although such certification would give it settlement leverage, if it were going to be required to pay the costs of notice of a litigation class—costs that would normally be shouldered by the defendant in the event of a settlement; or

•  Pursue a case to the point of trial but settle before investing significantly in such a trial.”

The strategic implications here are clear. (No, not “pursue strategies that drive up costs”– plaintiffs already assume defense counsel do that, and several courts have pointed out that it is improper.) Instead, keep an eye on the cost points the plaintiff is likely to face. If you have to make a settlement overture, that may well be the time to do so.

Can Class Counsel Use Discovery to Find Their Named Plaintiffs?

Posted in Motions Practice

Two couples, the Varsamises and the Giannopolouses, sued Iberia Air Lines for not properly compensating them after their international flights were delayed. Their counsel soon ran into plaintiff-related difficulties: the Giannopolouses were not typical of the class (and wound up accepting Iberia’s Rule 68 offer of judgment); the Varsamises’ claims were dismissed at the summary judgment stage. The class action was over; all that was necessary was for someone to call time of death. And Iberia filed a motion for final judgment to do just that.

At that point, plaintiffs’ counsel filed a motion of their own, “to reopen discovery for the purpose of identifying substitute class representatives and for an order authorizing plaintiffs’ counsel to engage in pre-certification communications with putative class members.”

In essence, counsel wanted the opportunity to identify other potential class members, so that they could solicit them to carry on with the lawsuit. To continue belaboring the medical drama analogy, counsel looking for any extraordinary measures it could take to bring this case back. Iberia, for what should be obvious reasons, opposed the motion.

Class counsel relied on a pair of opinions by Judge Posner that suggested that, under certain circumstances, an uncertified class action has a life beyond that of the named plaintiff who filed the complaint.

The trial court, in Giannopolous v. Iberia Lineas Aeras de Espana SA, No. 11 C 775, 2014 U.S. Dist. LEXIS 73003 (N.D. Ill. May 29, 2014), disagreed, observing that counsel’s

 arguments miss the point. The question is not whether the Court retains jurisdiction, nor whether contact information for potential class members is relevant and discoverable. Rather, the salient question is whether the Court can permit Plaintiffs’ counsel to issue discovery requests when there is no named plaintiff (or certified class) with a “live claim” who can “carry on” the litigation–including issuing discovery requests. The Court retains jurisdiction to entertain motions to intervene while the former named plaintiff whose claim is dismissed or moot keeps the case warm so that someone with a live claim can intervene. However, “carrying on” the litigation–i.e., issuing discovery requests or filing an appeal–cannot occur without a new named plaintiff with a legally protected interest who is willing to step forward to pick up the spear dropped by the named plaintiffs. The former named plaintiff cannot propose to be the representative itself, even though its claim has been resolved. Here, Plaintiffs’ counsel is lacking a client with a live claim, and so Plaintiffs’ counsel may not seek discovery to find one.”

(Emphases added, internal quotations & citations omitted.) Class actions involve high stakes (and therefore lucrative fees), so it’s not surprising that class counsel will do everything in their power to keep a case going even after it appears to have died a natural death. The Giannopolous opinion is an excellent reminder that there are limits to the extraordinary measures plaintiffs’ counsel can take to keep a dying case alive.

 

The Peril of the Professional Plaintiff – Donaca v. Dish Network, LLC

Posted in Certification

Historically, courts have grudgingly accepted the professional plaintiff in class action practice. As Judge Easterbrook of the Seventh Circuit once said, in the context of a FCRA class action, the word professional “implies experience, if not expertise.” One law student note offered one possible strategy for arguing that professional plaintiffs are inadequate class representatives: focus on their relationship with class counsel.

In Donaca v. Dish Network, LLC, No. 11-cv-02910-RBJ-KLM, 2014 U.S. Dist. LEXIS 19740 (D. Colo. Feb. 18, 2014), the District of Colorado offers another possible argument.  Donaca involved alleged robocalls made in violation of the TCPA. The named plaintiff, as the court noted:

has made it his business, literally, to fight back. According to his deposition testimony, he considers himself to be a consumer rights advocate. He does regular research on telemarketers. He estimates that in 2011 he derived approximately 60% of his income from TCPA-related activity, meaning collecting money through settlements of claims he made against violators. He belongs to an email group of consumer rights advocates, many of whom deal in telemarketing, and through which he met his lead counsel in this case.

(Internal citations omitted.) As professional plaintiffs go, that all sounds noble enough. Who wouldn’t want to sue robocallers and make some money while doing it? But Mr. Donaca had a few problems. First, it wasn’t clear he was a member of the proposed class. But, more important for our purposes, his activities undermined his counsel’s ability to argue that a class action was superior to other forms of litigation. Or, as the court put it:

the facts of this case do not convince me that class treatment is necessarily superior to other methods for a fair and efficient adjudication of TCPA claims. Mr. Donaca’s own example suggests the contrary. He has been generating something in the range of 60% of his income from suits or threats to sue telemarketers. Few people will make such claims for an occupation or avocation. But it does seem to me that if one is sufficiently annoyed by unsolicited prerecorded calls (or live calls), there is a remedy that has actually and successfully been used.

(Emphasis added.)

The takeaway here? If you suspect you have a professional plaintiff, dig into just how professional he is. The better he does at his “job,” the more likely you have a good superiority argument.

How to deal with the new “Mass FACTA” class actions

Posted in Certification

Massachusetts has seen a small uptick in class actions in the last eighteen months, particularly ones that cite Mass Gen. Law Ch. 93A, Masschusetts’s consumer protection law. David G. Thomas, James P. Ponsetto, and Michael E. Pastore of Greenberg Traurig have an explanation. In their Law360 article Behind The Class Action Surge Against Mass. Retailers  takes an in-depth look at a line of cases originated by the Supreme Judicial Court’s ruling in Tyler v. Michaels Stores Inc., 464 Mass. 492 (2013). These class actions challenge the practice of including ZIP codes in the information that retailers collect (much like the way the federal statute FACTA challenged the collection of similar information).  As they describe it, in Tyler,

the SJC reiterated that the harm or injury must be caused by the alleged violation. As a result, the SJC arguably narrowed the scope of Chapter 93A injury in Tyler (a long-awaited narrowing).

Nonetheless, the SJC also gave the plaintiffs’ class bar a road map as to how to plead and potentially prove Chapter 93A injury and damages for violations of Chapter 93, Section 105(a). For example, in Tyler, the separate and distinct injury was receiving unwanted junk mail or having personal information sold to a third-party for a profit. Since the SJC’s decision, the plaintiff’s class action bar has targeted other retailers allegedly following similar policies and alleged these very same separate and distinct injuries to consumers in their complaints.”

In other words, the Supreme Judicial Court’ interpretation has resulted in the same surf of lawsuits that FACTA did under similar circumstances.

In addition to providing an analysis of the relevant Massachusetts cases, the authors also offer up several preventive measures defendants can take, as well as a few arguments against certification:

Tyler addressed the injury issue only in the context of a motion to dismiss filed in the district court. Neither the SJC nor the district court addressed whether the putative class should be certified (which since has settled). Accordingly, a putative class representative would have to prove that the common issue of “Chapter 93 injury” and causation is appropriate for class certification, e.g., that all class members gave their ZIP codes, the “giving” did not fall into one of the enumerated exceptions, and that those ZIP codes were used to send consumers unwanted junk mail or to sell their information to a third-party for a profit. Accordingly, there may very well be some strong defenses to class certification in these cases, which, of course, will be based on the facts of the underlying policy and a retailer’s actions.

So, like with FACTA class actions, defendants should look at the specific transactions, and the policies in place behind the data collection. It’s often the cases in these kinds of retailer class actions that the storefront experience is not as common as the plaintiffs suppose.

Expert Testimony and the Reasonable Consumer

Posted in Certification

Cosmetics giant Maybelline markets Superstay 24 lipstick, which is supposed to be more comfortable, withstand heat and humidity, and go 24 hours without needing a transfer. Some customers decided that, despite the advertising, the lipstick did not last a full 24 hours without transfer; so they sued Maybelline claiming that it had violated various California fraud statutes.

As many lawyers know, California’s consumer fraud statutes have lesser reliance standards. For example, reliance is judged on an objective “reasonable consumer” standard that means plaintiffs often do not have to demonstrate individualized reliance to get a class certified.

So faced with a class action attacking its marketing of the lipstick (Algarin v. Maybelline, LLC, No. 12cv3000, 2014 U.S. Dist. LEXIS 65173 (S.D. Cal. May 12, 2014)), one would expect Maybelline to either (1) argue everything but reliance, or settle quickly.

Instead, Maybelline attacked the reliance requirement directly, using expert testimony to establish what its “reasonable consumer” actually cared about.

Maybelline has introduced unrefuted evidence of who the reasonable consumer in the target audience is and what drives her in making purchasing decisions. As Maybelline contends, the Court does not need to look to the hypothetical reasonable consumer.

(Emphases added.)  Interestingly, Maybelline’s expert found a large number of repeat purchasers, which indicated that a large number of Maybelline’s consumers either did not care about the duration of the lipstick, or were satisfied with it as it stood. Its expert also surveyed a number of buyers, repeat and otherwise, to see what they did care about when buying lipstick. His results allowed Maybelline to successfully attack the class definition (which was overbroad), and argue that individualized issues would predominate over any common issues.

Maybelline presents evidence, in the form of Dr. Seggev’s survey and report as well as Maybelline’s Early Trier Study, to show the proposed class includes: (1) a large percentage of the potential class of SuperStay purchasers are repeat purchasers who cannot be considered to be misled by the duration representation identified by Plaintiffs and (2) one-time purchases of the Class Products who had no duration expectations and whose purchasing decisions were made without regard to product duration. Because the proposed class includes these “uninjured” purchasers, the class is impermissibly overbroad and thus unascertainable.

The takeaway here is a good one for those who litigate frequently in California, as well as elsewhere: don’t be afraid to use expert testimony to attack the basics of plaintiffs’ case.