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The Limits of Vague Pleading – Duvio v. Viking Range Corp

Posted in Certification

 Class action practice provides plaintiffs with some odd pleading incentives. Two that cause continual problems are the need to keep things vague (in order to emphasize commonalities over any variations that may arise from more specific details) and the need to frame one’s complaint as broadly as possible to maximize the potential recovery in settlement negotiations.

As it turns out, it is in fact possible to plead a complaint that is too broad and too vague. In fact, the Eastern District of Louisiana entertained a case like this a few months ago, in Duvio v. Viking Range Corp., 2013 U.S. Dist. LEXIS 38592 (E.D. La. Mar. 20, 2013).

The Plaintiffs allege that "each and every" Viking appliance is "unreasonably defective," and that the Defendants are engaged in an ongoing tortious scheme to defraud their consumers. Specifically, the Plaintiffs claim that Viking manufactures and sells defective products designed to malfunction so that Hadco can profit by selling replacement parts for the faulty Viking products.

(Emphasis added, internal citation omitted.) Faced with a complaint that attacked its entire product line, Viking moved to strike the class allegations under Rule 23(d)(1)(D). The court agreed that this was the proper mechanism.

Courts have routinely applied Rule 23(d)(1)(D), formerly Rule 23(d)(4), to actions where a party seeks to strike class allegations because plaintiffs have not met the requirements of Rule 23.

And, in this case, the court found that the complaint had clearly not met those requirements. Specifically, given the stunning breadth of the class, the court held that the plaintiffs had not met the commonality requirement.

Like the female employees in the Wal-Mart litigation, the putative class in this case–all purchasers of Viking appliances across the United States–present similar problems with commonality. From wine cellars to rangetops and everything in between, there are currently 27 different types of Viking appliances in 187 models in varying designs, features, and options. The Plaintiffs do not specify a time period for the manufacture or purchase of these products, which further complicates the matter because some Viking appliances that were manufactured and sold have been discontinued. Given the vast array of products at issue, proving the defectiveness of each and every Viking product ever sold in the United States would entail numerous engineering experts and individual trials to determine causation, which not only present efficiency problems that are contradictory to the purpose of class actions, but also defeats the requirement of commonality because there is not a common question among the members of the purported class.

(Emphasis added.) But, it wasn’t just the breadth of the proposed class that posed problems. It was also the fact that the plaintiffs had not pled any specific facts to support their products liability theory. As a result, the court also held that the plaintiffs had not met their burden of persuasion, even at the pleading stage.

Similarly, the present case also lacks a common question because the Plaintiffs do not allege any facts in support of their conclusory allegations. In fact, Plaintiffs complaint is completely devoid of one fact detailing how the Defendants’ products are defective, much the less whether there is a commonality among the vast array of appliances and their alleged defective qualities.

Duvio shows that there are limits to just how broad and just how vague a class action complaint may be. At some point in the pleadings, plaintiffs have to show some of their cards. If not, they are particularly vulnerable to a motion to dismiss or motion to strike.