CAFA Removal Appeal to Watch

Here's one to watch.  The Supreme Court agreed earlier this week to consider whether defendants seeking removal of a proposed class suit to federal court under the Class Action Fairness Act must provide additional evidence supporting jurisdiction or just a short and plain statement of the grounds for removal. See Dart Cherokee Basin Operating Co., LLC v. Owens,  No. 13-719 (U.S., cert. granted 4/7/14).

The case came to the Court in an unusual posture. The Tenth Circuit denied defendant's petition for panel review, and the appeals court divided 4-4 on whether to hear the case en banc. Judge Hartz wrote a dissent, see 730 F.3d 1234 (10th Cir. 2013).

A defendant seeking removal of a case to federal court must file a notice of removal containing “a short and plain statement of the grounds for removal” and attach only the state court filings served on such defendant. 28 U.S.C. § 1446(a). Consistent with that statutory pleading requirement, the First, Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits require only that a notice of removal contain allegations of the jurisdictional facts supporting removal; those courts do not require the defendant to attach evidence supporting federal jurisdiction to the notice of removal. District courts in those Circuits may consider evidence supporting removal if it comes later in response to a motion to remand.

Here, the Tenth Circuit let stand an order remanding a class action to state court based upon the district court’s refusal to consider evidence establishing federal jurisdiction under CAFA because
that evidence was not attached to the original notice of removal. 

This case presents an important question of federal removal procedure and federal jurisdiction that potentially affects all litigants and district courts involved in a removal proceeding. More than 30,000 cases are removed to federal court each year.

France Adopts Limited Class Action Rule

We have posted before about the potential spread of class action litigation to other countries.  Now comes word that French President François Hollande has signed into law France’s new Consumer Law, which includes a class action procedure for consumer protection and antitrust claims. The new French law elects the “opt-in” model and limits the role of class representation to certain nationally representative and  accredited consumer associations.

Some colleagues of mine at SHB do a more in-depth  analysis here.

 

State Supreme Court Rejects Fishing Expedition of Experts' Employer

The Texas Supreme Court rejected plaintiffs' attempt to engage in a "fishing expedition"  of the employer of two experts retained in a product liability dispute. See In re Ford Motor Co., No. 12-1000 (Tex., 3/28/14).

In this design-defect case, the plaintiff sought to discover alleged  potential bias of the defendant’s two testifying experts by seeking to depose a corporate representative of each expert’s employer. This suit arose from injuries plaintiff Saul Morales allegedly sustained after a Ford vehicle allegedly struck him. Morales had been in his own vehicle, fleeing police who suspected he was driving drunk, said the court. Eventually, Morales stopped his vehicle and continued his flight on foot. One of the police officers likewise left his 2004 Ford Crown Victoria Police Interceptor, then pursued and apprehended Morales. While the officer attempted to handcuff Morales, the officer’s vehicle allegedly began rolling backward toward the pair. The vehicle allegedly struck the plaintiff, injuring him. 

Morales sued Ford Motor Company, which designed and manufactured the police car, and the car’s seller, Ken Stoepel Ford, Inc. Morales alleged the vehicle had a design defect that allowed the officer unintentionally to place the gear-shift selector between park and reverse, which then caused the vehicle to go into an idle-powered reverse. To defend the lawsuit, Ford retained two expert witnesses: Erin Harley, of Exponent, Inc., and Hugh Mauldin, of Carr Engineering, Inc. After deposing both Harley and Mauldin, Morales sought corporate-representative depositions from Exponent and Carr Engineering on seventeen topics, arguing the additional depositions were necessary to prove each testifying expert’s bias in favor of Ford and other automobile manufacturers.

The courts have expressed concerns about allowing overly expansive discovery about testifying experts that can “permit witnesses to be subjected to harassment and might well discourage reputable experts” from participating in the litigation process. Ex parte Shepperd, 513 S.W.2d 813, 816 (Tex. 1974). The particular deposition notices in this case. said the court,  highlighted the danger of permitting such expansive discovery. In his deposition notices to Carr Engineering and Exponent, Morales sought detailed financial and business information for all cases the companies have handled for Ford or any other automobile manufacturer from 2000 to 2011. Such a "fishing expedition," said the court, seeking sensitive information covering twelve years, is just the type of overbroad discovery the rules are intended to prevent.

In any event, the most probative information regarding the bias of a testifying expert comes from
the expert herself. In this case, for example, Harley testified that 5% of the cases she handles
are for plaintiffs and that she has never testified against an automobile manufacturer. Similarly,
Mauldin testified that historically about 50% of Carr Engineering’s work is done for Ford.  That was all plaintiff was entitled to, and the lower court order was quashed.

 

 

 

Juice Class Decertified at Close of Discovery

A federal court recently decertified a class action filed on behalf of  juice buyers, recognizing the grave ascertainability problems in the case alleging that the beverage maker misleadingly advertised its drink's health benefits. See In re Pom Wonderful LLC Mktg. & Sales Practices Litig., No. 2:10-ml-2199-DDP-RZ (C.D. Cal. 3/25/14).

Back in 2012, the court had certified a damages class comprised of all persons who purchased a Pom Wonderful 100% juice product between October 2005 and September 2010. After the  completion of discovery, Pom moved to decertify the class, in light of the facts developed and in light of the U.S. Supreme Court's decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). On a motion for decertification, as at the certification stage, the burden to demonstrate that the requirements of Federal Rules of Civil Procedure 23(a) and (b) are met lies with the party advocating certification. E.g., Marlo v. United Parcel Serv. Inc., 639 F.3d 942, 947 (9th Cir. 2011).

The court noted that the Ninth Circuit has adopted a rather narrow reading of Comcast, which holds that, under rigorous analysis, “plaintiffs must be able to show that their damages stemmed from the defendant’s actions that created the legal liability.” Leyva v. Medline Indus., Inc., 716 F.3d 510, 514 (9th Cir. 2013). Thus, the court proceeded to examine plaintiffs’ damages models and the relationship of those models to the plaintiffs’ legal theories. Plaintiffs' expert advanced two damages models. The "Full Refund" model concluded that consumers spent $450 million on Pom’s 100% pomegranate juice and juice blends during the class period, and that class damages are 100% of the amount paid, or $450 million.  Defendant argued that the Full Refund model was invalid because it failed to account for any value consumers received. Even putting aside any potential health benefits, defendant argued, consumers still received value in the form of hydration, vitamins, and minerals.  The court agreed.  The California consumer acts authorize a trial court to grant restitution to private litigants asserting claims under those statutes. Colgan v. Leatherman Tool Group, Inc.,135 Cal.App.4th 663, 694 (2006). “The difference between what the plaintiff paid
and the value of what the plaintiff received is a proper measure of restitution.” In re Vioxx Class Cases, 180 Cal.App.4th 116, 131 (2009). “A party seeking restitution must generally return any
benefit that it has received.” Dunkin v. Boskey, 82 Cal.App.4th 171, 198 (2000).  Since the model did not account for this, it did not comport with Comcast.

The second or "Price Premium" model assumed that, absent the alleged misrepresentations, “demand for Pom would have been less and the Pom market price would have been lower.” The Price Premium model quantified alleged damages “by comparing the price of Pom with other refrigerated juices of the same size.”  This model yielded a damage calculation of “about $290 million.”  The parties agreed that the Price Premium model depended upon a “fraud on the market” theory. Plaintiffs essentially asserted (1) that a presumption of reliance dependent upon defendant’s alleged material misrepresentations establishes the existence of a fraud on the
entire juice market, (2) that because of that fraud on the market, every consumer who purchased defendant’s juices was similarly damaged, regardless of motivation or satisfaction, and (3) damages could therefore be measured on a class-wide basis. But, the court was not aware of any authority applying a fraud on the market theory to this type of consumer action. (It's a securities thing!)  Putting that issue aside, a plaintiff alleging a fraud on the market must show that the relevant market is efficient. See Smilovits v. First Solar, Inc., 295 F.R.D. 423, 429 (D. Ariz. 2013). This court was not persuaded that the market for defendant’s high-end refrigerated juice products operates efficiently.

Third, whether the entire class can be said to have relied upon the alleged  misrepresentations for liability purposes, this did not necessarily speak to the adequacy of a damages model. Plaintiffs must be able to show that their damages stemmed from the defendant’s actions that created the legal liability.  Plaintiff's expert made no attempt upon a sound methodology to explain how defendant’s alleged misrepresentations caused any amount of damages. Instead, the expert  simply observed that Pom’s juices were more expensive than certain other juices. Rather than
answer the critical question why that price difference existed, or to what extent it was a result of Pom’s alleged actions, the expert simply assumed that 100% of that price difference was attributable to the alleged misrepresentations. Rather than draw any link between Pom’s actions and the price difference between the juice average benchmark price and average Pom prices, the Price Premium model simply calculated what the price difference was. This damages “model” did not comport with Comcast’s requirement that class-wide damages be tied to a legal theory.

The other basis for the decision was ascertainability.  In situations where purported class members purchase an inexpensive product for a variety of reasons, and are unlikely to retain receipts or other transaction records, class actions may present such daunting administrative challenges that class treatment is not feasible.  See, e.g., In re Phenylpropanolamine Prods., 214 F.R.D. 614, 620 (W.D. Wash. 2003) (describing critical manageability problems concerning sales of a three dollar medication, despite possibility of fluid recovery); Sethavanish v. ZonePerfect Nutrition Co., 2014 WL 580696 at *5 (N.D. Cal. Feb. 13, 2014) (denying certification because proposed class of nutrition bar purchasers would not be ascertainable).  Here, plaintiffs acknowledged that, based on the volume of product sold, every adult in the United States is a potential class member. Realistically, the class included at least ten to fifteen million purchasers. These millions of consumers paid only a few dollars per bottle, and likely made their purchases for a variety of reasons, observed the court. Few, if any, consumers were likely to have retained receipts during the class period, which closed years before the filing of this action. This case therefore fell well toward the unascertainable end of the spectrum. Here, at the close of discovery and despite plaintiffs’ efforts, there was no way to reliably determine who purchased defendant’s products or when they did so.

Class decertified.

Remand Not Warranted in CAFA Case

Often defendants in proposed class actions think of an individual's playing a dual role as lead plaintiff and class counsel as a useful fact to defeat class certification under the adequacy prong. Credit a plaintiff for "creative" -- although ultimately unsuccessful -- use of this situation in a proposed class action. See Hoffman v. DSE Healthcare Solutions, LLC, No. 2:13-cv-07582-JLL-JAD (D.N.J. 3/21/14)(unpublished).

Plaintiff Harold M. Hoffman filed a consumer fraud class action complaint in state court under New Jersey's consumer fraud act. Plaintiff’s Complaint alleged that defendant made “false and misrepresented claims of product efficacy” about a dietary supplement known as Lipo-Flavonoid Plus.  Defendant removed the lawsuit to federal court pursuant to the diversity jurisdiction conferred by the Class Action Fairness Act ("CAFA"), codified at 28 U.S.C. § 1332(d). According to defendant, the court had original jurisdiction over this action because (1) the suit is a “class action” as defined in 28 U.S.C. § 1332(d)(1)(B); (2) there is "minimal diversity"; and (3) the "aggregate value of the amount in controversy based on Plaintiff's allegations exceeds $5 million."

Plaintiff' filed a motion to remand the case to the Superior Court of New Jersey.Specifically, plaintiff argued that class certification is impossible in federal court because his dual role as class representative and class counsel, which, he said, is per se impermissible in the Third Circuit. Without class certification, plaintiff asserted, defendant cannot establish that the amount in controversy exceeds $5 million, as required by CAFA. Defendant responded that plaintiff cannot unilaterally divest the court of  jurisdiction simply because he represents himself. 

When a class action complaint expressly disclaims the ability to recover the $5 million jurisdictional amount, the Third Circuit instructs that the burden is on defendant to prove "to a legal certainty that plaintiff can recover" that amount. See Frederico v. Home Depot, 507 F.3d 188, 197 (3d Cir. 2007). The concept of legal certainty is not well defined, but falls somewhere below "absolute certainty" and above "preponderance of the evidence." See Nelson v. Keefer, 451 F.2d 289, 293 n.6 (3d Cir. 1971)). A court examines both the dollar figure offered by the plaintiff and plaintiff's actual legal claims to determine whether the amount in controversy exceeds the statutory threshold.

The court's analysis here turned on a reading of Knowles, where the Supreme Court interpreted CAFA to hold that a named plaintiff cannot unilaterally circumvent CAFA by his own non-binding actions. Specifically, the Supreme Court rejected a plaintiff’s attempt to evade the scope of CAFA jurisdiction by stipulating that the class he sought to represent would not seek damages that exceed the $5 million jurisdictional threshold.  Here, the court agreed with defendant that just as a class representative could not bind a class with a stipulation to limit the class’ damages in order to avoid federal jurisdiction, a class representative, such as Hoffman, cannot bind the class by unilaterally deciding to select himself as counsel.

The primary issue was whether defendant could show “to a legal certainty” that the individual claims of all proposed class members aggregated to more than $5 million. If defendant satisfied this burden, remand would be inappropriate.  And the court found that defendant had made the requisite showing. Estimating the actual aggregate losses of the individuals in the proposed class was a relatively straightforward process, said the court, where plaintiff brings suit requesting treble damages under the CFA.

Motion denied.

 

Wisconsin Passes Asbestos Trust Reform

We posted before about the legislative effort in Wisconsin to level the asbestos playing field with regard to claims against asbestos trusts and remaining solvent defendants.  Earlier this month the state Senate passed a version of the bill that would require plaintiffs in asbestos personal injury actions to disclose whether they have filed a claim against any personal injury trust.

This week, the Wisconsin Assembly passed the bill (A.B.19), a version that will also create a setoff for defendants of the amount recovered from the trust.  The bill now goes to Gov. Scott Walker (R) for approval.  Published reports suggest the governor will sign the measure.

A.B. 19 imposes a series of new requirements in asbestos-related claims, including:

(a) the plaintiff shall provide to all parties a sworn statement identifying each personal injury claim he or she has filed or reasonably anticipates filing against an asbestos trust, including the amount claimed by the plaintiff, the date that the plaintiff filed the claim, the disposition of the claim and whether there has been a request to defer, delay, suspend, or toll the claim against the asbestos trust.
(b) For each personal injury claim he or she has filed against an asbestos trust, plaintiff shall provide a copy of the final executed proof of claim, all trust documents, including trust claims materials, trust governance documents, any documents reflecting the current status of the claim and, if the claim is settled, all documents relating to the settlement of the claim.
(c)  Trust claims materials and trust governance documents are admissible in evidence. No claims of privilege apply to trust claims materials or trust governance documents.
(d) Trust claim materials that are sufficient to entitle a claim to consideration for payment under the applicable trust governance documents may be sufficient to support a jury finding that the plaintiff may have been exposed to products for which the trust was established to provide compensation and that such exposure may be a substantial factor in causing the plaintiff's injury that is at issue in the action.
(e) If a verdict is entered in favor of the plaintiff in an action subject to this section and the defendant is found to be 51 percent or more causally negligent or responsible for the plaintiff's entire damages, the plaintiff may not collect any amount of damages until after the plaintiff assigns to the defendant all pending, current, and future rights or claims he or she has or may have for a personal injury claim against an asbestos trust.

 

UPDATE- The governor signed the bill. (reminder check our disclaimer page, we don't always update posts!)

 

Rare Class Decision Describing Adequacy Prong

The adequacy prong of Rule 23 as applied to named representatives probably does not garner as much attention in litigation as the other prerequisites.  A federal court decision reminds readers that there are proposed class actions where the adequacy prong can be vital.  See In re Kosmos Energy Ltd. Sec. Litig., No. 3:12-CV-3733-B (N.D. Tex. , 3/19/14).

The issue before the court was whether to grant Lead Plaintiff’s motion to certify a class of investors who purchased or otherwise acquired common stock from Defendant Kosmos Energy Ltd. (“Kosmos”), through its May, 2011 initial public offering (“IPO”), and were allegedly damaged thereby. The court concluded that Lead Plaintiff fell short of the dictates of Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), as well as the Fifth Circuit’s standard for class certification in securities cases set out in Berger v. Compaq Computer Corp., 257 F.3d 475, 483 (5th Cir. 2001). Instead, and to its apparent detriment, plaintiff relied on pre-Comcast case authority. The prevailing current view  is that a plaintiff seeking class certification must affirmatively demonstrate his compliance with Rule 23(a) by showing that there are in fact sufficiently numerous parties, common questions of law or fact, typicality of claims or defenses, and adequacy of representation.

At the heart of defendants’ opposition to the pension plan’s request to be appointed as class
representative was their assertion that there was a fatal absence of evidentiary support for the Plan’s request. Defendants argued that a purported class representative must demonstrate that it possesses a sufficient level of knowledge and understanding to be able to control the litigation, that a potential representative must also establish that it—not the lawyers—is directing the litigation, and that it is not only sufficiently informed about the case to properly manage the effort, but that it must also be willing and able to take an active role and protect the interests of absentee class members. 

Defendants asserted that Lead Plaintiff fell far short of satisfying this stringent standard for  adequacy. They pointed out that the Plan offered little, if any, evidence to prove its adequacy to as
class representative. For their part, defendants submitted the deposition transcript of the Plan’s Board Chair Ms. Saville, which was taken in conjunction with the certification proceedings. Saville’s
deposition, Defendants claimed, established that the Plan had virtually no knowledge about the case, and in fact, did not understand their own allegations or the core themes permeating the complaint. Defendants pointed to portions of Saville’s deposition which they asserted showed that she had never seen, much less read, the Registration Statement, nor could she identify a single misstatement in it, was unable to recognize the names of certain defendants, and was either confused or did not know whether the Kosmos stock price dropped, or if it did, what might have caused the drop, after the Plan purchased the stock.

Adequacy is a constitutional prerequisite to class certification. In fact, it has been said that, due process issues are the single most important feature of class litigation, and adequacy looms
over the entire class debate.  There was no dominant, discernable standard of proof for the requirement. Some courts presumptively favored finding class representatives adequate, requiring little or no evidence to support the determination. Others employed a more robust review of the issue, incorporating the due process considerations inherent in the concept, making certain that the representative possessed the character traits necessary to guarantee his commitment to his fiduciary duties to the class.  The court concluded that the Supreme Court’s recent decisions in Wal-Mart and Comcast, leave no doubt that plaintiffs can no longer rely upon the lax adequacy standards employed at times in the past. Instead, plaintiffs seeking certification must produce actual, credible evidence that the proposed class representatives are informed, able individuals, themselves—not the lawyers––actually directing the litigation.

Applying this rigorous adequacy review—in practice—can involve consideration of a number
of factors, said the court. For example, courts often consider the proposed representative’s personal attributes, including evidence of the representative’s character, honesty, and conscientiousness.  The representative’s familiarity with the case is also important. Certification may be denied where the representative lacks knowledge or a basic understanding of what the suit is about. Likewise, evidence of the representative’s willingness or ability to participate in the litigation is relevant. When it appears that the potential representatives are simply lending their names to a suit controlled entirely by the class attorney, or where the representative is too closely affiliated with class counsel, courts may find them to be inadequate. Failing to appear at the class certification hearing has also been considered a negative factor in the adequacy assessment.  

In terms of evidence, deposition testimony of the proposed representative—where the party opposing certification was able to  question the individual in person—may trump a written, sworn statement by that representative. Here, the only evidence submitted by the Pension Plan in support of its claims of adequacy was the Declaration of its Board Chair, Suzanne Saville. The Declaration, however, contained little more than formulaic, boiler-plate assertions over two pages of substantive text. The court determined that the deposition taken carried more weight. Lead Plaintiff’s defense of the Saville deposition, in turn, fell short.  And without facts to support its position, the Plan failed the rigorous test posed by Berger, Wal-Mart and Comcast.

Moreover, when focusing on the factors listed above that courts have examined in assessing adequacy, (e.g. close affiliation with and dependence upon class counsel, knowledge of the basic facts of the case and defendants involved, desire to vigorously prosecute the case, among others), the court noted that here the plaintiff and counsel maintained the type of close affiliation that calls into question whether the Plan or its counsel was the one actually pursuing the case.  The court referred to the type of free securities monitoring service that counsel provided the Plan, which has been criticized by other courts as fostering tendencies toward lawyer-driven litigation.

Moreover, Saville did not attend the class certification hearing and sought permission to be excused from attending court-ordered mediation in person. These facts indicated that the Plan lacked the incentive needed to fulfill its fiduciary duties and vigorously prosecute the claims filed on behalf of “likely thousands” of potential class members who would not have the opportunity to represent themselves in court.

All in all, one of the more comprehensive recent discussions of the adequacy prong.

Wisconsin Senate Passes Asbestos Trust Disclosure Bill

 The Wisconsin Senate recently passed a bill that would require plaintiffs in asbestos lawsuits to notify defendants of their various asbestos trust claims.  This comes in response to about the lack of transparency that allows plaintiffs to double dip from trusts and solvent defendants.

The bill passed on a mostly party line vote, and returns the issue to the state Assembly, which approved a similar measure last year.  Several states have  passed or considered similar legislation. Under the bill, plaintiffs would divulge all of their claims against asbestos trusts and any related documents, including those related to the settlement of the claim. The proposed legislation would also allow the trust documents to be admitted as evidence in asbestos personal injury claims. If a trust determined a plaintiff's claim against the trust was valid, a later jury could find that the plaintiff was exposed to the other asbestos product and that the other exposure may have been a substantial factor in causing the plaintiff's alleged asbestos-related injury in the suit.

Full text here.

 

Appeals Court Affirms Summary Judgment for Cart Manufacturer

The Second Circuit affirmed the grant of summary judgment for a golf cart maker who challenged plaintiff's expert opinion in a design defect suit by a teenager injured in a 2007 golf cart accident. See Valente v. Textron, Inc., No. 13-1456 (2d Cir., 3/10/14).

Plaintiffs appealed from an award of summary judgment in favor of defendants on Valente’s strict liability and negligence design defect claims for damages allegedly sustained when Valente was operating a golf car manufactured by defendants. Valente contended that the district court erred in precluding the testimony of his expert (K. Seluga) after a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Specifically, the district court excluded Seluga’s testimony that yaw instability—resulting from a design defect in the use of a two-wheel rear braking system as opposed to a four-wheel braking system—was responsible for Valente’s accident. In fact, the court of appeals concluded, the district court’s thoughtful and thorough explanation for excluding Seluga’s testimony convincingly demonstrated that it acted well within its discretion.

There is no dispute that the coefficient of friction term in the relevant calculations was the determining factor in the expert's opinion that yaw instability was responsible for Valente’s accident. But the coefficient of friction used by Seluga, based on flat surface testing, was approximately 40% lower than the coefficient measured by Seluga and defendants' expert on the actual path of the accident, as well as that used by the expert in a published peer reviewed article on the topic.

 

Even assuming the reliability of the coefficient, Seluga testified that his simulation would predict a
rollover due to yaw instability somewhere between 25% and 50% of the time.  The purpose for which Valente sought to offer Seluga’s testimony, however, was not that under certain circumstances there was a 25% chance that the accident could have occurred as a result of the defect in the golf car, but rather that the design defect actually caused the accident “to a reasonable degree of engineering certainty.” Where, as here, data is simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion
testimony.

 

With Seluga’s testimony properly excluded, the record was devoid of any evidence supporting Valente’s theory that the golf car had a design defect or that such a design defect likely caused his accident.

Affirmed.

 

Certification Rejected in Dietary Supplement Claim

The important issues of ascertainability and choice of law led a federal court to deny class certification in litigation relating to the dietary supplement VPX Meltdown Fat Incinerator.  See Karhu v. Vital Pharm., Inc., No. 13-60768 (S.D. Fla., 3/3/14).

Plaintiff filed a class complaint against Vital Pharmaceuticals Inc.  to recover damages based upon VPX's alleged false advertisements, and to enjoin any further alleged misrepresentations. He sought to bring the suit on behalf of all persons in the United States who have purchased Meltdown for purposes other than resale since April 4, 2008. The claims included:  (1) breach of express warranty under the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. § 2301, et seq.; (2) breach of
express warranty; (3) unjust enrichment; and (4) violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. § 501.201, et seq.

The court concluded that the case would be unmanageable as a class action. First, the court saw no practical method of verifying membership in the proposed Class of Meltdown purchasers. No central record of Meltdown customers existed, and it was unlikely that each Meltdown purchaser since 2008 has retained a proof of purchase. Second, the claims of the Nationwide Class would implicate the laws of multiple states. The varied requirements of the states' laws would require different proof on each claim depending on the locations of the class members. These legal permutations would render an eventual trial unwieldy, and would overshadow the common factual questions that otherwise allegedly united the class members' claims.

Regarding ascertainability, a plaintiff seeking class certification must first craft a class definition clear enough to allow the court to understand whether a particular individual is a member of the class, and that membership is ascertainable. A class is ascertainable only if the court can determine whether a given person is a class member through administratively feasible methods. See In re Checking Account Overdraft Litig., 286 F.R.D. 645, 650–51 & n.7 (S.D. Fla. 2012). Here, plaintiff failed to propose a realistic method of identifying the individuals who purchased Meltdown. The courts have come to recognize that purchasers are less likely to retain receipts or other records of minor purchases, and thus cannot rely on those proofs to ascertain the identities of class members. See Red v. Kraft Foods, Inc., 2012 U.S. Dist. LEXIS 186948, at *14–19 (C.D. Cal. Apr. 12, 2012).

Nor could the court trust individuals to identify themselves as class members through the submission of affidavits. Accepting affidavits of Meltdown purchases without verification would deprive VPX of its due process rights to challenge the claims of each putative class member.  On the other hand, having VPX contest each affidavit would require a series of mini-trials and defeat the purpose of class-action treatment. Using affidavits to determine class membership would also invite fraudulent submissions and could dilute the recovery of genuine class members, said the court.

Regarding predominance, the court noted that the MMWA does not define a stand-alone federal cause of action for breach of express written warranty, but instead borrows state law causes of action for breach of both written and implied warranties. Under choice of law analysis, the law governing each class member's warranty claim is the law of the state where he or she purchased the Meltdown. The court noted that state law varied on issues such as privity and reliance. In short, varied state laws would govern the MMWA claims of class members across the country, imposing different legal requirements and overshadowing the allegedly common factual bases of the claims. Moreover, some of these laws would require individualized proof inappropriate for class treatment. In light of the differences among applicable laws and the potential need for individualized proof, the court found that individualized legal and factual issues predominate over the common aspects of the proposed class MMWA claims, rendering class certification inappropriate under Rule 23(b)(3).

Class certification denied.