Duane Morris Class Action Review - 2023 - Report - Page 115
standard for standing, consumer fraud class actions continue to inject new class-wide
issues into federal courts. Defendants may employ procedural defenses or substantive
ones, but either type affords defendants with an arsenal of potential tactics; as
consumer fraud classes change, so too does case law contemplating successful
defenses.
In sum, consumer fraud class action litigation remains a high-value arena as the cost to
enter the game is very little for individual putative class members while their potential
upside is high. Meanwhile, the cost to corporate defendants is high at the outset, which
may force companies’ hands at settlement. Although it was not clear which side of the
consumer fraud class action bar reigned supreme in 2022, there is always next year.
II.
Significant Rulings In Consumer Fraud Class Actions In 2022
In 2022, the jurisdictions for successful class certification rulings were clustered in the
Second, Seventh and Ninth Circuits. Historically, those three circuits have constituted
“magnet jurisdictions” for class actions due to their tendency to issue favorable rulings
on class certification motions.
The significant decisions in 2022 can be grouped in several categories, which are
discussed below, including: (i) rulings turning on predominance and superiority; (ii)
rulings analyzing Article III standing issues; (iii) preemptive motions to strike class
claims due to defects on the face of the pleadings; and (iv) rulings deciding questions in
consumer fraud class actions.
A.
Rulings Turning On Rule 23(b)(3) Predominance And Superiority
In In Re Suffolk University COVID Relief Litigation, 2022 U.S. Dist. LEXIS 185297 (D.
Mass. Oct. 11, 2022), the plaintiffs, a group of university students, filed a class action
against their university after the COVID-19 pandemic abruptly ceased all in-person
learning in Spring of 2020. The plaintiffs’ proposed class consisted of “all students who
enrolled in an in-person/on-campus based program or classes at Suffolk University, and
not any separate Suffolk online programs only, before March 11, 2020, who paid Suffolk
any of the following costs for the Spring 2020 semester: (a) Tuition, and/or (b) Fees.” Id.
at *3. The defendant chose not to focus its opposition to class certification on Rule
23(a)’s requirements, and instead, opted to primarily argue that the putative student
class could not establish superiority under Rule 23(b)(3). Id. at *3. The court denied the
motion for class certification on the basis that the plaintiffs failed to establish that the
class action vehicle was superior to other, individualized methods for adjudication. The
court recognized a genuine question existed regarding whether individual college
students had the capacity to sue Suffolk University individually, especially given the
disparity in resources available to Suffolk compared to those available to individual
students. Id. at *3. The court also noted its uncertainty about whether individual
damages awards could outweigh independent litigation costs, particularly where the
slated recover was less than $1,000. Id. Despite these duel concerns that would
otherwise encourage satisfaction of superiority, the court ultimately found the class
could not meet Rule 23(b)’s standard because the plaintiffs’ “likelihood of proving
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Duane Morris Class Action Review – 2023
