Fifth Circuit Upholds District’s Decision to Expunge Class Allegations

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Related practices and jurisdictions

One of the first big decisions related to class certification of 2023 comes from the Fifth Circuit. While some trial courts are reluctant to strike class action pleadings claims, the district court found early in the case that it was clearly inappropriate for class certification. The Fifth Circuit agreed, in a published notice that will be helpful to defendants in that circuit and elsewhere.

Elson c. Black, F.4th, 2023 WL 111317 (5th Cir. Jan. 5, 2023) was much like many putative class action lawsuits filed against product manufacturers challenging representations about their products. The plaintiffs alleged that the maker of a massage device, described in the notice as a two-foot stick with hard teeth, misrepresented its potential health benefits. The defendant allegedly claimed that the device could virtually eliminate cellulite, aid in weight loss and relieve pain. Most potential buyers would probably take such statements with a grain of salt (or more). But the plaintiffs here claimed they were duped. They sued under the Magnuson-Moss Warranty Act, various state statutes, and for unjust enrichment. They searched for one nationwide class and alternately seven statewide subclasses.

The district court quashed the group’s allegations in a single paragraph, focusing on the fact that trust was an individualized matter and finding that the community was unhappy. But the Fifth Circuit wrote much more. She focused on predominance, concluding that the common questions of law and fact did not predominate for two reasons. First, there were differences in state law. Even at the pleadings stage, plaintiff was required to provide the district court with a thorough analysis of variations in state law, and failed to do so. Their appellate brief demonstrated substantial variation in state trust law.

Second, it was clear that the plaintiffs and the alleged class members were relying on different misrepresentations regarding different potential health benefits of the product. [T]The possibility of a class analysis disintegrates because the members did not rely on the same allegations of misrepresentation. The Subclass Claimants’ proposal did not solve this problem because subclass is not a magic word that cures predominance defects; [t]The onus is on the plaintiffs to demonstrate to the district court how certain proposed subclasses would alleviate existing barriers to certification, which they have failed to do.

Not all putative class actions are appropriate for this type of pleading challenge. There are strategic reasons why defendants often do not file motions to strike. But the lesson here is that, at least in some circuits, plaintiffs’ class claims will not survive this type of petition, particularly if they allege a national or multistate class involving significant differences in state law, or multiple alleged misrepresentations.

Copyright 2023 Robinson & Cole LLP. All rights reserved. National Law Review, Volume XIII, Number 9

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