Has there been a “sea change” in Florida class action law making it more favorable to plaintiffs?  That is what a dissenting opinion asserts in a recent Florida Supreme Court per curiam decision.  If that dissent is accurate, insurers and other large corporations should be prepared to face a potential increase in class action filings in the state courts of the Sunshine State.  But that can succeed only to the extent that plaintiffs can avoid federal jurisdiction under the Class Action Fairness Act, which will depend in part on the U.S. Supreme Court’s forthcoming decision in Standard Fire Ins. Co. v. Knowles (see my January 8, 2013 blog post for more on that case).

In Soper v. Tire Kingdom, Inc., No. SC11-1462, 2013 Fla. LEXIS 89 (Fla. Jan. 24, 2013) (per curiam), a 5-2 majority of the Florida Supreme Court summarily quashed the Third District Court of Appeal’s (DCA) opinion in Tire Kingdom, Inc. v. Dishkin, 81 So. 3d 437 (Fla. 3d Dist. Ct. App. 2011), and remanded the case to the trial court.   The Florida Supreme Court’s majority opinion says nothing more than that the Third DCA’s decision “is in express and direct conflict with this Court’s decision in Sosa v. Safeway Premium Finance Co., 73 So. 3d 91 (Fla. 2011).”  To explore why the Third DCA might have been reversed, an examination of both Tire Kingdom and Sosa is required.  (I did a prior blog post on Sosa on July 12, 2011.) 

Tire Kingdom is a putative class action alleging that the defendant tire shop’s advertising regarding discounts on auto repair services was deceptive.  The plaintiff claims that the advertising improperly failed to disclose “shop fees” that would be added to the discounted price, and also that the defendant improperly based the “shop fees” on a percentage of the retail price rather than discounted price.  The Third DCA reversed the trial court’s certification of the class, finding that commonality and  typicality were not satisfied.  On commonality, the court of appeal concluded that the trial court had improperly reached preliminary conclusions on the merits of the case, that the commonality test set forth in the U.S. Supreme Court majority opinion in Wal-Mart v. Dukes was not satisfied (although there was not much discussion on this point), and that individual proof would be required to establish a claim under Florida’s deceptive trade practices act.  Tire Kingdom, 81 So. 3d at 446-48.  On the last point, the court of appeal concluded that an individual inquiry into each customer’s transaction (i.e., what advertising he or she viewed, conversations with the defendant’s employees, etc.) would be necessary to determine whether the defendant was liable to a putative class member.  With respect to typicality, the court of appeal concluded that the plaintiff’s identification of common issues of law was insufficient, and that the evidence did not support the allegation of a “common scheme.”  On this point, the court of appeal cited its own decision in Sosa, which was later reversed by the Florida Supreme Court.  Id. at 450.  Notably, the Third DCA did not reach the issue of predominance of common issues of law or fact because it found that both commonality and typicality were lacking.

Sosa was a 4-3 decision by the Florida Supreme Court finding that class certification was appropriate in a case involving allegations that the defendant violated a Florida statute in imposing certain service charges on premium finance agreements.  The Florida Supreme Court held, among other rulings, that: (1) the Third DCA had failed to apply an abuse of discretion standard of review to the trial court’s class certification order (Sosa, 73 So. 3d at 103); (2)  a trial court may consider evidence on the merits where such evidence overlaps with class certification requirements, although without making a determination on the merits (id. at 105-06); and (3) the threshold for commonality is “not high,” and depends on “whether the representative’s claim arises from the same practice or course of conduct that gave rise to the remaining claims and whether the claims are based on the same legal theory” (id. at 107).  The commonality test as articulated in Sosa was similar to a common formulation of the test applied in the federal courts pre-Wal-Mart.  The Florida Supreme Court’s opinion was issued very shortly after the U.S. Supreme Court’s decision in Wal-Mart, and my reading of Sosa has been that the Florida Supreme Court might not have actually considered whether or not to follow the U.S. Supreme Court majority in Wal-Mart.  There is no citation to Wal-Mart in Sosa, and if a state supreme court is going to expressly reject federal law on class certification it often will say so directly.  With respect to predominance, the Florida Supreme Court in Sosa explained that predominance can be satisfied if the named plaintiff “by proving his or her own individual case, necessarily proves the cases of the other class members.”  Id. at 112.  This again did not seem to be a departure from the federal standard.  On the facts of Sosa, the court concluded that the appropriateness of the alleged overcharges based on a routine billing practice could be determined in a classwide manner, and that issue would predominate.  Id. at 113.

Reading Sosa together with the Third DCA’s opinion in Tire Kingdom, it appears that there are several possible grounds on which the Florida Supreme Court majority might have found a conflict with its decision in Sosa.  (The Florida Supreme Court majority and dissent in both cases was the same except for Justice Quince, who dissented in Sosa but not in Soper v. Tire Kingdom.)  The majority could have concluded, for example, that the appellate standard of review had not been properly applied in Tire Kingdom, or that the trial court in Tire Kingdom had appropriately considered the merits, or that the Tire Kingdom court’s adoption of Wal-Mart on commonality was inconsistent with Sosa’s discussion of pre-Wal-mart law on commonality.  None of these would be particularly remarkable.  Not every state supreme court has followed the U.S. Supreme Court majority in Wal-Mart on commonality, although I would expect a state supreme court deciding to expressly reject Wal-Mart on this point would say so explicitly, and analyze the issue. 

The dissenting opinion of Justice Canady in Soper v. Tire Kingdom suggests that the majority might be going further than a reading of the Third DCA’s opinion in Tire Kingdom together with Sosa might suggest.  Justice Canady’s dissent, joined by Chief Justice Polston, states that “Sosa marked a sea change in Florida’s law governing class actions,” and that the two dissenters would recede from it.  Soper, at *2 (Canady, J., dissenting) (emphasis added).  The dissent makes clear that it would follow Wal-Mart on commonality.  Id. at *6.  The dissent further concludes that, in light of the individualized issues regarding each class member’s transaction with Tire Kingdom, “we have no basis for concluding that this case is appropriate for consideration as a class action.”  Id. at *8.  It is not clear to me that the Florida Supreme Court has gone so far as to have found class certification appropriate, although it did remand the case to the trial court instead of to the Third DCA.

Sometimes a dissent can have an impact unintended and undesired by its author, and this might become the case here.  Was this an overly dramatic dissent that overstates the impact of the majority’s per curiam ruling, and of Sosa?  Or is it a sign that Florida law on class certification really has shifted significantly?  Only time will tell.  But this might spark an increase in class action filings in Florida state courts, with plaintiffs’ lawyers trying to use the dissenting opinion in Tire Kingdom to cast the Sosa opinion as a significant change in Florida class action law.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.