The U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) has impacted millions of employees in their pursuit of class action claims against their employers. The Dukes decision articulated the standard for establishing the commonality necessary to secure class certification in a manner that has been seen to raise the bar to class certification under Federal Rule of Civil Procedure 23.
While Dukes focused its analysis of establishing commonality in the context of a Title VII employment discrimination claim, the impact of Dukes will be felt by businesses beyond the employment context. The Dukes standard broadly applies to the class certification commonality analysis. And since Dukes, many courts have applied the standard in non-employment related cases, including consumer claims regarding deceptive advertising, unfair business practices and unfair debt collection practices claims, to name a few. What can we take away from these cases about the hurdles to establishing commonality that will be presented to putative class action plaintiffs?
Where plaintiffs have raised class action claims related to advertising or marketing claims made by defendant companies, the medium through which the advertising or marketing claims were made may greatly impact whether commonality may be established. For instance, in a case against a manufacturer of a homeopathic product that claims to relieve symptoms of the common cold, the court found that commonality was established because the plaintiff alleged that the claims regarding product efficacy were made on the product packaging, which was “a single misrepresentation that was made identically to all potential class members” and “determination of the truth or falsity of Defendant's representation of Coldcalm's efficacy will resolve an issue that is central to the validity of each one of the claims in one stroke….” Delarosa v. Boiron, Inc., 275 F.R.D. 582, 589 (C.D.Cal. 2011).
By contrast, in a case where plaintiffs claimed an automobile repair shop deceptively charged an undisclosed “shop fee” in addition to advertised prices, the court found that commonality was not established since individualized proof of the customers’ experiences would be required. The proposed class included customers who used a coupon, benefited from the coupon or otherwise were charged more than they bargained for, which the court held would require inquiry into “the precise language of each advertisement, the class member's awareness of [the] shop-fee signage, and the class member's conversations with [the] employees….” Tire Kingdom, Inc. v. Dishkin, No. 3D08-2088 (Fla Dist. Ct. App. July 6, 2011) (applying Dukes to analyze state class action rule based upon Fed. R. Civ. P. 23).
Interestingly, in a case raising commonality questions similar to Dishkin, the 9th Circuit recently held that there were issues common to the class, despite individualized questions presented regarding which customers had been exposed to the advertising and which customers relied upon it. The court did hold, however, that these individualized questions predominated over common questions and therefore decertified the class.
In Mazza v. American Honda Motor Co., Inc., No. 09-55376, 2012 WL 89176, *12 (9th Cir. Jan. 12, 2012), the court noted that “even if the class was restricted only to those who purchased or leased their car in California, common issues of fact would not predominate in the class as currently defined because it almost certainly includes members who were not exposed to, and therefore could not have relied on, Honda's allegedly misleading advertising material.”
Establishing commonality in unfair debt collection practices claims also may turn on the medium through which the collection efforts were made. Where a uniform notice or mailing is distributed to each member of the putative class, commonality may be found, as in Aho v. AmeriCredit Financial Services, Inc., No. 10cv1373, (S.D. Cal. July 25, 2011), where the same form notice that was allegedly defective was sent to all putative class members.
These cases suggest that courts are more likely to find the commonality standard met where representations or notices have been made to consumers in a manner that was indisputably uniform. Therefore, where it may appear on a surface level that consumers were treated uniformly, focusing on identifying differences in consumers’ experiences, communications, exposure, and reliance may be beneficial to defeating class certification.
However, courts may not uniformly analyze commonality by focusing on the putative plaintiffs’ individual experiences. In American Honda, the court found that common questions regarding the defendant’s duty to disclose and whether the defendant’s factual omissions were material and misleading were sufficient to establish commonality. Class certification was defeated because individual issues predominated over the common issues.
Therefore, it is important to focus on the individualized differences in consumers’ experiences, which can arguably preclude a finding of commonality and which may predominate over other potential common issues. Even if plaintiffs clear the commonality hurdle erected by Dukes, it does not necessarily follow that a class will be certified in these types of cases.