Duane Morris Class Action Review - 2023 - Report - Page 117
The court moved on from Daubert to analyze class certification under Rule 23. It dealt
mostly with the parties’ respective superiority arguments. Id. at *9-10. Day argued a
class action was the most efficient method of adjudication “because individual litigation
would be uneconomic for potential plaintiffs” and because the putative class members
had common evidence of liability and damages. Id. at *10. GEICO counter-argued that
Day’s class was unmanageable because it could not account for differences between
policyholders, the largest difference being the amount of time each putative member
maintained a GEICO policy. Id. It also asserted a class would implicate difficulties
calculating a fair rate and isolating pandemic costs, both aspects of damages. Id.
The court rejected GEICO’s first argument against superiority - differences between
policyholder - because those differences were accounted for in the proposed damages
model. Because the model applied a percentage reduction to the amount each
individual policyholder actually paid, and the amounts paid clearly reflected any such
differences between them, the damages model did not need to account for them in
some additional, duplicative way. Id.
GEICO’s second superiority argument - complexities in the class-wide damages
calculation favored individual adjudication - was equally unpersuasive to the court
because it found the complexities to managing the class could defeat superiority, not
complexities in the class-wide damages model. Id. “The superiority analysis requires a
court to consider whether a class action is superior to individual litigation. Even if this
case were pursued by an individual plaintiff, that individual would still need to calculate
what would have been a ‘fair rate’ in order to determine what damages are appropriate.
These arguments are not proper as part of a superiority analysis.” Id.
Finally, GEICO’s argument that the various time periods within which putative class
members maintained GEICO insurance policies defeated the superiority standard was
denied by the court. Instead, it ruled “what ultimately matters for manageability as a
class action is the number of percentages calculated and over how long a time period
they each apply.” Id. Because Day’s model was capable of reflecting an appropriate
percentage refund over a period of time long enough to cover the class period, the court
determined any variations in policy terms did not defeat superiority.
In Noohi, et al. v. Johnson & Johnson Consumer, Inc., 2022 U.S. Dist. LEXIS 216328
(C.D. Cal. Nov. 30, 2022), another plaintiff brought claims under the UCL after the
plaintiff purchased Neutrogena Oil-Free Face Moisturizer for Sensitive Skin (the
product), manufactured by Johnson & Johnson Consumer, Inc. (J&J). The plaintiff
purchased the product because its packaging represented it was “oil-free,” but later
discovered the product actually contained various oils and oil byproducts. Id. The
plaintiff sued J&J alleging fraud claims, claims for violations of California’s False
Advertising Law, violations of California’s Unfair Competition Law, and violations of
California’s Consumer Legal Remedies Act. Id. at *1-2. The plaintiff moved to certify a
putative class consisting of “all consumers who purchased the Product in California”
during a four-year time period. Id.
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Duane Morris Class Action Review – 2023
