Federal Court Refuses to Certify Class Based on Problems with Class Definition
When I teach my product liability course as an adjunct professor, I often include on the exam a class action question. It's always a traditional issue-spotting exam, and I expect to see students set forth the elements for class certification and analyze them in the course of their answer.
One of the elements of class certification that all but the best of my students often ignore is the class definition. Although Federal Rule of Civil Procedure 23 does not have any express requirements for class definitions, courts recognize that there is an inherent rule for all class actions that the class be objectively identifiable and ascertainable at the outset of the litigation. Otherwise, how could one tell who would be bound by the class adjudication?
I previously have written about a decision in which a court refused to certify a class based on problems with the class definition. Today, I proffer to you another -- which, incidentally, was won by my new colleagues John Beisner and Jessica Miller.
In Solo v. Bausch & Lomb, Inc., MDL No. 1785, Slip Op. (D.S.C. Sept. 25, 2009) (AmLaw Daily registration may be required), the court refused to certify two classes of California and Pennsylvania consumers, respectively, who bought contact lens solution between September 1, 2004 and April 10, 2006 and discarded it after the defendant told consumers to do so.
The ReNu with MoistureLoc litigation is familiar to everyone. It was posited that ReNu was responsible for an increase in cases of eye infection and blindness due to a fungus, fusarium keratitis. The infections were first noticed in Asia, and after the CDC noted an increase in fusarium keratitis infections in the United States, the defendant recalled its product and advised consumers to switch to another contact lens solution. In exchange, the defendant offered a refund or a coupon applicable to others of its contact lens solutions.
Nevertheless, there were a slew of lawsuits seeking recovery for "economic harm" allegedly suffered by ReNu consumers. The MDL court had refused to certify a nationwide class action, and subsequently refused to certify a class action involving just California-only and Pennsylvania-only classes.
Plaintiffs filed another amended complaint for Pennsylvania-only and California-only classes, asserting various breach of warranty claims, consumer fraud claims, and unjust enrichment claims. The court dismissed the warranty claims, but allowed the California statutory claims and the California and Pennsylvania unjust enrichment claims to proceed.
Interestingly, one of the three named plaintiffs in the action subsequently voluntarily dismissed her claims after changing her story about whether she bought and discarded Renu in 2006. But the claims of two plaintiffs (one California, one Pennsylvania) made it to the certification motion. For each state class, the definition was:
All people in [California/Pennsylvania] who purchased MoistureLoc, other than for resale, from September 1, 2004 through April 10, 2006, who lack full reimbursement for any quantity discarded following Bausch's MoistureLoc recall.
Id. at 5.
The court described the class definition as "'an essential prerequisite to maintaining a class action,.'" Id. at 6 (citation omitted). Citing Wright, Miller & Kane, the court declared that the class definition must be "'sufficiently definite so that it is administratively feasible for a court to determine whether a particular individual is a member,'" and noted that the definition "'must not depend on subjective criteria or the merits of the case or require an extensive factual inquiry to determine who is a member.'" Id. at 7 (citations omitted). Thus, "[w]here determining membership in the class would require fact-intensive mini-trials, the class is not ascertainable, and the court should deny certification." Id. at 8. Citing the court's decision in In re Phenylpropanolamine (PPA) Products Liability Litigation, 214 F.R.D. 614 (W.D. Wash. 2003), the court exhibited great sensitivity to how class members would prove that they bought the product, as well as how much was left when they discarded it, Slip op. at 9.
The court was especially aware that memories fade over time, and it noted the varying testimony of the two remaining named plaintiffs, as well as the named plaintiff who had voluntarily dismissed her claim after changing her testimony about whether she bought and discarded the product. The court also recognized that determining who "lack[ed] full reimbursement" for their losses would require mini-trials. Would a consumer who used most of the solution and received an $8 replacement coupon be a class member? What if he failed to use the coupon? Id. at 11.
The court concluded that mini-trials were unavoidable, and that they made any class unmanageable:
[T]he membership of plaintiffs' proposed class would require countless factual inquiries into the individual circumstances of potential class members, most of whom will have long ago forgotten the details relevant to plaintiffs' allegations. Moreover, it is hard to fathom how thousands of unnamed putative class members could possibly provide credible testimony about their class membership more than three years after the fact when the proposed class representatives themselves have presented conflicting testimony that changed over time. . . . While the court realizes it is likely that many individuals incurred some monetary loss as a result of the MoistureLoc recall, plaintiffs must still meet the requirements for class certification.
Id. at 14.
The opinion in Solo should prove useful in other cases where consumer products have already been consumed and proving loss is a difficult case of recall, rather than documents.
