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Successfully Attacking Class Certification

Peter S. Baumberger and Michael F. Suarez | October 4, 2013

As one may expect, defending against a class action is a daunting task. They are all complex, only increasing in complexity as dictated by the subject matter of each case. Peter S. Baumberger and Michael F. Suarez understand this.

Peter and Michael recently succeeded in obtaining a denial of class certification in a products liability class action suit in Palm Beach County. They represented a septic tank manufacturer, whom, along with other defendants, were sued by a putative class of contractors and property owners which asserted implied warranty, negligence, strict liability, and Florida Deceptive and Unfair Trade Practices Act claims, respectively. The claims initially sought to encompass each of the many thousands of tanks manufactured since the 1970s, leading Plaintiffs to value the claim in excess of $30,000,000. After more than a year of litigation, which culminated in a two-day evidentiary class certification hearing, the Judge issued a 21-page Order denying class certification. The case ultimately settled without an appeal for a microscopic figure when compared to the Plaintiffs’ valuation. The clients were thrilled, and Peter and Michael were pleased with how much the hard work truly paid off.

Class actions in Florida state courts are governed by Fla. R. Civ. P. 1.220, which sets forth the prerequisites to class certification as follows: (1) the members of the class must be so numerous that separate joinder of each member is impracticable [numerosity], (2) the claim or defense of the representative party must raise questions of law or fact common to those raised by the claim or defense of each member of the class [commonality], (3) the claim or defense of the representative party must be typical of the claim or defense of each member of the class [typicality], and (4) the representative party must be able to fairly and adequately protect and represent the interests of each member of the class [adequacy of representation]. As an additional requirement, the claim or defense of each member of the class must predominate over any question of law or fact affecting only individual members of the class [predominance].1 The burden is on the proponent of class certification to plead and prove all of the elements. Sosa v. Safeway Premium Finance Co., 73 So. 3d 91, 106 (Fla. 2011).

From the inception of their recent case, Peter and Michael honed in on attacking each of these elements. In particular, they focused on showing that it would require thousands of mini-trials for every single tank for plaintiff to prove causation. Florida courts have recognized that class treatment is inappropriate when mini-trials are necessary to assess liability. InPhyNet Contracting Servs., Inc. v. Soria, 33 So. 3d 766, 773 (Fla. 4th DCA 2010); Kia Motors America Corp. v. Butler, 985 So. 2d 1133, 1141-42 (Fla. 3d DCA 2008). Thus, Peter and Michael immersed themselves in highlighting why the individual issues and cases were so pervasive in this case, and, thus, why class treatment was inappropriate.

An essential aspect of class action litigation is that the court does not address the merits of the Plaintiff’s claims at the class certification hearing itself, but instead conducts a "rigorous analysis" to determine whether class certification is warranted. Chase Manhattan Mortg. Corp. v. Porcher 898 So. 2d 153, 156 (Fla. 4th DCA 2005) (citing Earnest v. Amoco Oil Co., 859 So. 2d 1255 (Fla. 1st DCA 2003)). Consequently, Peter and Michael delicately balanced their attack on the class certification elements while simultaneously portraying how the merits would be decided if the classes were ultimately certified.

To this end, through evidence and testimony (including Peter’s tactical cross-examinations of the Plaintiffs’ and their expert), Peter and Michael were able to establish that the septic tanks could fail due to myriad potential causes aside from defects, including poor installation, being driven over, and misuse—creating a clear scenario where mini-trials were necessary to determine causation with respect to each cause of action raised by the Plaintiffs. Peter drove this point home brilliantly in closing arguments, highlighting the fact that causation would be contested for every single tank and that the causes of all tank failures would have be investigated on a tank-by-tank basis. The Judge agreed, ultimately opining that determining the cause of failure for each class member’s tank would result in precisely the sort of mini-trials the courts have deemed inappropriate for class treatment. Consequently, the "commonality" and "predominance" elements were not met. The Judge also found the causation issue to be fatal to the "typicality" element, since one could not assume that each property-owner class member, for example, took the same precautions not to run over their tank and/or properly install and use them in the first place.

In a nutshell, it is fair to say that the case turned on the insurmountable obstacle, at least under these facts, of proving causation on a class-wide basis. However, it took the production of 100,000-plus documents, 20-plus depositions, hundreds of pages in court filings, and extensive legal research to get there. Class actions have very particular elements, and it is the Plaintiff’s burden to prove that each of those elements is satisfied. In the end, Peter and Michael were able to establish that Plaintiffs failed to meet their burden, and, therefore, that this case was improper for class treatment.



1. See Fla. R. Civ. P. 1.220 for the other subdivisions and requirements.

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