One of the most basic prerequisites to having court rules is that the rules aren’t supposed to change substantive law. With class action rules, like Fed. R. Civ. P. 23 and its state-law analogs, courts seem to have a hard time remembering that. No substantive effect means that, if a plaintiff couldn’t bring the claim individually, that same claim can’t be brought on behalf of that same plaintiff via a class action.
One of the most basic attributes of almost any cause of action is injury. That’s why we’re bringing you news of the recent Ohio Supreme Court decision in Felix v. Ganley Chevrolet, Inc., No. 2013-1746 slip op. (Ohio Aug. 27, 2015), even though it’s not a drug and device case.
It’s a consumer fraud statute case brought under the Ohio version of Rule 23, and we think all defense attorneys who confront this kind of thing ought to know about it. It’s that good. Some choice quotes:
Plaintiffs bringing OCSPA [the Ohio statute] class-action suits must allege and prove that actual damages were proximately caused by the defendant’s conduct.
Plaintiffs in class-action suits must demonstrate that they can prove, through common evidence, that all class members were in fact injured by the defendant’s actions.
Id. ¶33. Note the word “all.”
The inquiry into whether there is damage-in-fact is distinct from the inquiry into actual damages: fact of damage pertains to the existence of injury, as a predicate to liability.
Id. ¶34 (citation and quotation marks omitted).
If the class plaintiff fails to establish that all of the class members were damaged (notwithstanding questions regarding the individual damages calculations for each class members), there is no showing of predominance.
Id. ¶35. Again, note the word “all.”
Perhaps the most basic requirement to bringing a lawsuit is that the plaintiff suffer some injury. Apart from a showing of wrongful conduct and causation, proof of actual harm to the plaintiff has been an indispensable part of civil actions. We agree, and we hold that all members of a class in class action litigation alleging violations of the OCSPA must have suffered injury as a result of the conduct challenged in the suit.
Id. ¶36 (emphasis added).
Here, here! This is the only way that a class action rule can be read so that it does not improperly change the underlying substantive law, and plaintiffs get away with herding uninjured persons into class actions – indeed, bringing class actions where nobody at all has been injured − all the time.
Not in Ohio, anymore.