Class certification decisions under Rule 23 of the Federal Rules of Civil Procedure mark a critical stage in any putative class action lawsuit. Rule 23(a) requires plaintiffs to prove, among other things, that “there are questions of law or fact common to the class.” And Rule 23(b) authorizes money damages class actions only where the legal or factual questions common to the class predominate over questions that may be addressed differently for individual class members. In class actions involving claims about product performance, class proponents almost always cite the existence of a “defect” as common issue. But why is the generic question of “defect” even the right question, and what if the product has experienced a significant change over the time period covered by the class action? When a product is updated, is it still the same “product” for purposes of Rule 23? The Sixth Circuit, in In re: Nissan North America, Inc., — F.4th —, 2024 WL 4864339 (6th Cir. 2024), addressed not only these questions but also joined the growing list of circuits that expressly require expert testimony offered at the class certification stage to satisfy Rule 702 of the Federal Rules of Evidence.
Erica K. Drew
Articles by Erica K. Drew:
A KIND Result After Insufficient and Biased Consumer Perception Evidence
Consumer perception evidence is necessary for plaintiffs to survive summary judgment in a false advertising class action, but vacillating and flawed connections between the evidence and the key question of what a reasonable consumer would expect may lead to its exclusion. The Second Circuit, in Bustamante v. KIND, LLC, 2024 WL 1917155 (2d Cir. May 2, 2024), provides an illustrative example of this, affirming the Southern District of New York’s exclusion of plaintiffs’ experts and grant of summary judgment to a snack foods manufacturer in a false advertising class action.
In Bustamante, Plaintiffs alleged they were deceived by the packaging of KIND snack bars as “All Natural” despite the inclusion of certain “non-natural” ingredients, and their lawsuit asserted warranty, unjust enrichment, negligent misrepresentation, and state consumer protection statute claims. Although there were differing elements to Plaintiffs’ various claims, they were narrowed for the purposes of summary judgment to deception, materiality, and injury, with only the element of deception at issue on appeal.
Continue reading “A KIND Result After Insufficient and Biased Consumer Perception Evidence”
Listen Up Class: The Role of Daubert at the Class Certification Stage in the Ninth Circuit
Class certification is the feature fight of any putative class action lawsuit. If granted, it can multiply the stakes of a case several hundred- or thousand-fold. If denied, it can signal the end of the litigation. Because of its importance, parties often invest heavily in the class certification fight, including by offering – and challenging – expert testimony.
As this trend has become more common, more focus has been devoted to answering a key question – to what extent should Rule 702 apply at this critical juncture? A number of circuits have held that Rule 702 applies in full force and that opinions deemed inadmissible under Rule 702 should not be considered in regard to class certification; others, such as the Ninth Circuit, have taken a somewhat different approach. Recently, the Southern District of California, in Stewart v. Quest Diagnostics Clinical Labs., Inc., 2022 WL 5236821 (S.D. Cal. Oct. 5, 2022), weighed in on this question.
Florida Rule Change Permits Immediate Appeals on Punitive Damages
The Florida Supreme Court has accepted a proposed rule amendment to permit interlocutory appeals of court orders on punitive damages claims. On January 6, 2022, the Florida Supreme Court approved by 6-1 an amendment to Florida Rule of Appellate Procedure 9.130 to allow interlocutory appeals of nonfinal orders granting or denying leave to amend a complaint to assert a claim for punitive damages. Prior to this amendment, a party could only appeal such an order by petitioning for a writ of certiorari. And in that posture, the appellate court’s review was limited only to whether the trial court complied with the procedural requirements for making such a claim.
Practically, this means Florida appellate courts will be able to immediately review trial court orders regarding punitive damages claims on both procedural and substantive grounds. With this amendment, the merits of a plaintiff’s punitive damages claim can now be appealed prior to any discovery of a defendant’s financial information. The new rule takes effect April 1, 2022.
Continue reading “Florida Rule Change Permits Immediate Appeals on Punitive Damages”
New Jersey Supreme Court Pumps the Brakes on Use of Aggregate Proof of Damages in Kia Class Action
In Little v. Kia Motors America, Inc., docket no. A-24-18, the New Jersey Supreme Court recently set out the examination New Jersey courts must undertake before admitting aggregate proof of damages, rather than individualized proof, in a class action. Siding with defendant Kia in a vehicle defect suit, the Court ruled that admission of aggregate proof of damages at trial was inappropriate because an unknown number of class members would have received a windfall, and the formula used to estimate such damages was unreliable. This case reviews the key principles courts and litigants should consider when choosing between individualized or aggregate proof of damages in a class action.