In Rowe v. Bankers Life & Cas. Co., 2012 U.S. Dist. LEXIS 43198 (N.D. Cal. Mar. 29, 2012), Estella Rowe, a senior citizen, bought an equity-indexed deferred annuity. After she did so, she learned that this particular kind of annuity (like most annuities) is not a very good investment. So she sued her insurance company, alleging that it
conspired with its independent sales agents and others to induce elderly consumers to buy equity-indexed deferred annuities, which, according to Rowe, are unsuitable investment vehicles for anyone over sixty-five years old.
Rowe asserted a cause of action for civil RICO. (Specifically, she alleged that Bankers Life & Casualty Trust had sent misrepresentations through the mail, violating the mail fraud sections of RICO.) Then she moved to certify a proposed nationwide class.
The court began by noting that, because she sought damages, the plaintiff could not get her class certified under Rule 23(b)(2).
Nor, it concluded, could it certify a class under Rule 23(b)(3). As it held:
The problem with Rowe’s argument is that she has not identified any uniform misrepresentations or omissions made to each potential member of the nationwide class. First, Rowe asserts "on information and belief" that Bankers mailed the disclosure form to each potential member of the nationwide class. But that is not enough to affirmatively demonstrate, by a preponderance of the evidence, that every potential member of the nationwide class received this document. … As outlined above, when ruling on a motion for class certification, the Court must make whatever factual and legal inquiries are necessary under Rule 23. Rowe’s bald assertion that each potential member of the nationwide class received the same disclosure form that she and her husband received is not enough to convince the Court that Bankers’ allegedly fraudulent conduct was systematically directed to each potential member of the class.
Similarly, the plaintiff could not prove that there had been any common misrepresentations in either the sales literature or the oral misrepresentations she claimed she heard. As a result, the court refused to certify the proposed class.
The takeaway for defense lawyers: civil RICO–which often relies on fraud-like allegations–still requires proof of causation. And causation in fraud-like cases is basically reliance, which is usually an impediment to certification.