A recent case highlights the difficulty of certifying many types of consumer protection class actions in the wake of the Supreme Court’s opinion in Wal-MartStores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).  In Friedman v. Dollar Thrifty Automotive Group, Inc., No. 12-cv-02432, 2015 WL 361232 (D. Col. Jan. 27, 2015), the court denied certification of a class of consumers who rented cars, largely on the basis of a lack of commonality.

Friedman is an unexceptional case, but it highlights the difficulties that plaintiffs face in certifying consumer protection class actions. In Friedman, plaintiffs sought to certify a class of all persons who rented cars from Dollar in Colorado and Florida since 2009. Plaintiffs alleged that Dollar tricked consumers into buying certain add-on packages: Loss Damage Waiver, supplemental liability insurance, and roadside assistance. Id. at *1. Plaintiffs attempted to show commonality by alleging that Dollar employees used a “uniform ‘script’” in selling the add-on packages Id. at 6.

The court found that the plaintiffs had not met the commonality requirement because “the ultimate purchase of such products turned on the interaction between the customers at the airport rental counter and the Dollar agents.” Id. at *8. The court rejected the plaintiffs’ arguments that all Dollar employees followed a uniform script, instead finding that Dollar only provided suggested frameworks for explaining products and answering questions. Id. at *6. Thus, the 2.58 million face-to-face transactions “could go in any number of unique directions depending on questions asked or information provided.” Id. Moreover, the court noted that other courts have found a lack of commonality even assuming that all employees followed the same script. Id. at *6 n.4. Indeed, the court noted that even assuming that all Dollar employees used identical words, the variability in Dollar’s sales data showed that customers responded differently to the pitch. Id. The court emphasized that “[w]hat the putative class members were told or understood regarding the products, and their reasons for purchasing the products, could have varied greatly depending on the individualized nature of the communications at issue.” Id. at *8.

Friedman shows the difficulty of certifying a consumer class action based on verbal interactions. No two face-to-face transactions are exactly alike. Different employees will necessarily use different words to convey the same message. Even where a company provides a script, it’s unlikely that all employees would always follow it verbatim, and even if they did, their dispositions, inflexions, tones, and facial expressions would necessarily vary. Persuasion is not limited to words alone.

The Friedman court distinguished the cases cited by plaintiffs because “the information regarding the Add-On Products that Plaintiffs claim was deceptive was not presented through some type of contract applicable to all class members or in a standardized way such as through a script that was used by all Dollar agents.”Id. at *8. The court’s mention of a script in this context is somewhat puzzling, given that the court had already dismissed the significance of a script to the commonality analysis. In any event, it’s unlikely that most courts would find the use of such scripts sufficient to establish commonality.

In a post-Dukes world, it’s highly unlikely that consumers could certify a class action based on face-to-face consumer interactions by multiple employees. Instead, plaintiffs are far likelier to have success certifying consumer class actions on the basis of advertisements, standard contracts, and automated policies and practices. In these types of cases, any allegedly deceptive message or practice is less likely to vary by customer.