After watching an infomercial, Harry Wiedenbeck bought a "comprehensive" medical health insurance plan for himself and his wife. When the insurer subsequently denied a claim based on his wife’s hospitalization, Mr. Wiedenbeck filed a class action alleging fraud and bad faith on behalf of all Wisconsin residents who had bought the plan.
The subsequent case, described in Wiedenbeck v. Cinergy Health, Inc., No. 12-cv-508-wmc, 2013 U.S. Dist. LEXIS 134672 (W.D. Wis. Sep. 20, 2013), contained a number of procedural machinations, including the use of an offer of judgment. But I’d like to focus on the class certification debate, because it makes an important point that recurs frequently in class action practice.
In denying certification, the trial court observed that
If Thorogood and Pella represent two ends of a spectrum for the Seventh Circuit when it comes to meeting the predominance requirement, this case plainly falls near the Thorogood extreme. Indeed, this case is arguably even less suited for class treatment than Thorogood: not only have plaintiffs utterly failed to demonstrate that there is a likely, common understanding of the alleged misrepresentation, the record suggests there is not even a common misrepresentation.
(Emphasis added.) In particular, the court paid attention to the fact that there were "at least two television commercials or infomercials at issue during the relevant time period," and "at least ten call scripts."
As a result, the court found, there was no "uniform misrepresentation." That made reliance an individualized issue. And that made the class unsuited for certification.
The takeaway from this opinion is straightforward, but often overlooked. In fraud class actions, defendants need to document each of the alleged misrepresentations. The more specific they can get, the easier it is to show that not all members of the proposed class will have received the same mix of information. Class action plaintiffs like to deal in generalities; nothing counters those better than specific, documented facts.