One of the first significant class certification-related decisions of 2023 comes from the Fifth Circuit. While some trial courts hesitate to strike class action allegations on the pleadings, the district court here concluded very early in the case that it was clearly inappropriate for class certification. The Fifth Circuit agreed, in a published opinion that will be helpful to defendants in that circuit and elsewhere.
Elson v. Black, — F.4th –, 2023 WL 111317 (5th Cir. Jan. 5, 2023) was much like many putative class actions brought against product manufacturers challenging representations about their products. The plaintiffs alleged that the manufacturer of a massage device, described in the opinion as “a two-foot stick with hard prongs,” misrepresented its potential health benefits. The defendant allegedly represented that the device could “‘virtually eliminate cellulite,’ help with weight loss, and relieve pain.” Most prospective purchasers would probably take such statements with a grain of salt (or many). But the plaintiffs here claimed they were duped. They sued under the Magnuson-Moss Warranty Act, various state statutes and for unjust enrichment. They sought a nationwide class and alternatively seven statewide subclasses.
The district court struck the class allegations in a single paragraph, focusing on reliance being an individualized issue and concluding that commonality was not satisfied. But the Fifth Circuit wrote considerably more. It focused on predominance, finding that common issues of law and fact did not predominate for two reasons. First, there were differences in state law. Even at the pleadings stage, the plaintiff was required to provide the district court with “an extensive analysis of state law variations,” and failed to do so. Their appellate brief demonstrated substantial variation in state law on reliance.
Second, it was clear that the plaintiffs and the putative class members relied on different misrepresentations about different potential health benefits of the product. “[T]he possibility of class analysis disintegrates because the members did not rely on the same alleged misrepresentations.” Plaintiffs’ proposal of subclasses did not solve this problem because “‘subclass’ is not a magic word that remedies defects of predominance”; “[t]he burden is on Plaintiffs to demonstrate to the district court how certain proposed subclasses would alleviate existing obstacles to certification,” which they failed to do.
Not every putative class action is appropriate for this type of challenge on the pleadings. There are strategic reasons why defendants often do not file a motion to strike. But the lesson here is that, at least in some circuits, plaintiffs’ class allegations will not survive this type of motion, particularly if they allege a nationwide or multistate class involving significant differences in state law, or multiple alleged misrepresentations.