Any time class certification is denied, defendants should pay close attention to what the defendant did to win the class certification battle and whether any lessons can be learned for application in other putative class actions.
Coe v. Philips Oral Healthcare Inc., No. C13-518 MJP (W.D. Wash. Oct. 10, 2014), is a recent example of a class certification denial worth discussing. Defendant, instead of waiting for plaintiffs to file their certification motion, filed a preemptive motion to deny nationwide class certification. This strategy paid off. Defendant won not only its motion denial certification but also won summary judgment based on the statute of limitations on a claim under New York’s General Business Law and dismissal of a claim under Connecticut’s Unfair Trade Practices Act for lack of subject matter jurisdiction.
The Coe plaintiffs are a putative class of purchasers of Sonicare brand electric toothbrushes. According to the plaintiffs, the product packaging and website marketing contain false representations about the number of brushstrokes per minute and the level of cleaning that the toothbrushes provide. Plaintiffs alleged in their consolidated complaint that certification of a nationwide class would be appropriate because Washington’s Consumer Protection Act (WCPA) should apply to all plaintiffs’ claims, even though none of the named plaintiffs were from Washington. The defendant filed a preemptive motion against certification, arguing that Washington’s choice-of-law rules mandate that the laws of each plaintiff’s home state apply to their claims.
The court found that “[b]ecause a conflict exists between WCPA and the consumer protection laws of the various states where the [t]oothbrushes were purchased and used, the Court must apply Washington’s most significant relationship test in order to determine which law to apply.” Under that test, the court determined which state had the most significant relationship to the cause of action and found that while “Washington has a significant relationship to alleged deceptive trade practices by a Washington corporation,” “the putative class members’ home states have significant relationships to allegedly deceptive trade practices resulting in injuries to their citizens within their borders,” as well. The plaintiffs argued that defendant had attempted to fix the alleged problems with the toothbrushes in their Washington facilities, making Washington the state with the most significant relationship to plaintiffs’ claims. Ultimately, though, the court agreed with the defendant that the plaintiffs’ home states had the most significant relationship to their causes of action.
The deciding factor in the significant relationship test appeared to be that “the crux of [p]laintiffs’ action involves the marketing and sale of the [t]oothbrushes, which took place in other states.” In support of this conclusion, the court cited to the Restatement (Second) of Law on Conflicts of Laws § 148 which has been adopted by Washington in the fraud and misrepresentation context. The court explained that “Section 148 of the Restatement and its comments make clear that the alleged misrepresentation to consumers and the consumers’ pecuniary injuries, both of which occurred in consumers’ home states and not in Washington, should be considered the most significant contacts in this particular case.” In addition, the court cited to Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581 (9th Cir. 2012), where the Ninth Circuit “recognized the strong interest of each state in determining the optimum level of consumer protection balanced against a more favorable business environment, and to calibrate its consumer protection laws to reflect their chosen balance.”
Once the court determined that it would apply the laws of the plaintiffs’ home states, it was inevitable that plaintiffs would be “unable to demonstrate the predominance or manageability required for class certification” under Rule 23(b)(3). And, as the court found, “[m]aterial differences between the consumer protection laws of the relevant states overwhelm common questions.” Accordingly, nationwide class certification was preemptively denied.
Of course, a preemptive motion to deny class certification will not be appropriate in every case, but it is an interesting and creative strategy that paid off in Coe and can really help narrow the scope of liability in a putative class action.