Duane Morris Class Action Review - 2023 - Report - Page 123
determination generally involves considerations that are enmeshed in their factual and
legal issues comprising the plaintiff’s cause of action. Id. at *1-2.
Interestingly, the court in Bennett and the court in Jones both found defendants’ use of
Rule 12(f) to be improper, but for distinctly different reasons. In Jones, the motion was
procedurally improper for its untimeliness, but in Bennett it was substantively improper
because it necessarily required the court to decide the propriety of the class vehicle
without employing Rule 23 analysis.
In Stemmelin, et al. v. Matterport, 2022 U.S. Dist. LEXIS 180767 (N.D. Cal. Oct. 3,
2022), the plaintiff filed a class action alleging false and deceptive advertising claims. In
short, the plaintiff alleged that the defendant promised camera purchasers marketing
materials and leads in their respective locales after they purchased a 3D camera, in
order to offset the purchase price of the cameras. The plaintiff alleged that the
defendant never produced such leads, and had class members known of the “lucrative
3D camera business” was not actually profitable as advertised, class members would
not have purchased the cameras. Before the defendant filed a motion to strike, the court
denied the plaintiff’s motion to certify an Illinois class and a national class due to a lack
of predominance, among other considerations. Id. at *1. Months later, the court partially
granted the defendant’s motion for summary judgment, but denying it for the plaintiff’s
California Consumer Legal Remedies Act claim and his request for injunctive relief. Id.
A short while later, the plaintiff filed a second Rule 23 motion, this time seeking
certification of an injunctive relief class pursuant to Rule 23(b)(2), which the defendant
moved to strike. To determine whether to modify its original order denying class
certification, the court employed a reconsideration standard because the Ninth Circuit
had yet to specifically provide a standard of review for a second Rule 23 motion.
Applying its reconsideration standard, the court declined to modify its earlier Rule 23
order because “permitting serial certification motions encourages gamesmanship and
overbroad initial motions. This wastes resources.” Id. at *1. Even beyond its basic
considerations of preservation of resources and diminution of gamesmanship, the court
determined that the plaintiff failed each of the three elements for reconsideration. The
court ruled that the plaintiff did not set forth any new material evidence or law amounting
to a change in his circumstances, and did not establish the court failed to consider
material facts or dispositive arguments when it originally denied class certification. Id. at
*2. Additionally, the court noted that nothing prevented the plaintiff from seeking
certification of a narrower class under a less sweeping theory before he first moved for
Rule 23 certification. In seeking certification of a broader class, the plaintiff made an “all
or nothing bet” the court declined to allow the plaintiff to escape. Id. at *4. Accordingly,
the court granted the defendant’s motion.
D.
Other Significant Rulings In Consumer Fraud Class Actions
Montera, et al. v. Premier Nutrition Corp., 2022 U.S. Dist. LEXIS 144491 (N.D. Cal. Aug.
12, 2022), illustrates that once a consumer class is certified, though, the issues do not
end. In Montera the court certified a putative class of New York consumers who
purchased Joint Juice, a beverage sold by the defendant. Id. at *1. The plaintiff’s class
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Duane Morris Class Action Review – 2023
