Duane Morris Consumer Fraud Class Action Review – 2024

fees on their residential mortgages and whether members were entitled to statutory damages as a result. Typicality was met because the lead plaintiff ’ s claims were of the same nature as those of the putative class members, and the lead plaintiff was found to be fair and adequate. Notably, just as Emory University argued the putative tuition payer class could not be found “common” because individualized inquiries as to each payer ’ s respective relationship to Emory would abound, NewRez LLC made a similar argument. NewRez LLC took things one step further than Emory, though, in that NewRez LLC argued that questions as to each mortgagee ’ s loans and the alleged fees charged to them required individualized inquiries into the nature of each mortgagee ’ s alleged harm and that the putative class could not be reasonably ascertained from NewRez LLC ’ s business records. The court rejected NewRez ’ s ascertainability argument on the basis that such an argument called into question whether NewRez transacted in good faith. Considering NewRez ’ s notice of removal, in which NewRez submitted the case consisted of approximately 1,500 mortgagees who were alleged charged a clearly defined sum of money, the court contemplated the propriety of applying principles of judicial estoppel to reject NewRez ’ s ascertainability argument at class certification. Ultimately the court declined to do so sua sponte , but Yates, et al. v. NewRez LLC is an excellent reminder that missteps at the class certification stage are costly. In Sihler, et al. v. Fulfillment Laboratory, Inc., 2023 U.S. Dist. LEXIS 116306 (S.D. Cal. June 23, 2023), the plaintiffs filed a class action alleging that the defendants engaged in a fraudulent scheme in which they used fake celebrity and magazine endorsements, along with misrepresentations about price and availability, to deceive consumers into buying weight-loss pills branded as “Ultra Fast Keto Boost” and “Instant Keto.” Id. at *2. The defendants allegedly overcharged customers, made returns and refunds difficult, and operated deceptive websites to mislead banks and credit card companies. The plaintiffs asserted that they would not have purchased these products or would have paid less if not for these deceptive practices. The plaintiffs brought claims for violation of California ’ s consumer protection laws and civil RICO violations. The plaintiffs filed a motion for class certification of two classes, including a nationwide class for RICO claims and a California sub-class for state law claims, both consisting of consumers who were billed for these products. The court granted the motion. The court found that the numerosity requirement was met, as there were likely more than 40 individuals who purchased these products based on shipping and sales data. The court determined that the plaintiffs established commonality as there were common questions regarding the deceptive practices, especially related to the pricing information. The court opined that the plaintiffs met the typicality requirement as the claims of the named plaintiffs were similar to those of the class, arising from the same alleged unlawful conduct. The court also reasoned that the plaintiffs and counsel met the adequacy requirement because they had no conflicts of interest and had demonstrated experience in class action litigation. The court found that common questions predominated over individual inquiries for the consumer law claims, RICO claims, and aiding and abetting claims against the defendants. The court also determined that a class action would be the superior of adjudication fairly and efficiently litigating the claims. For these reasons, the court granted the plaintiffs’ motion for class certification. The plaintiffs in Tershakovec, et al. v. Ford Motor Co., Inc., 79 F.4th 1299 (11th Cir. 2023), filed a class action alleging that Ford falsely advertised all Shelby cars as track-capable, leading the plaintiffs to purchase them, but only to discover that the Shelbys did not perform as advertised. The district court granted the plaintiffs’ motion for class certification, and authorized multiple state law classes. On appeal, the Eleventh Circuit affirmed in part and reversed in part the district court ’ s ruling. The primary issue was whether the plaintiffs’ proposed class met Rule 23(b)(3) ’ s requirements for predominance and superiority. The Eleventh Circuit focused on reliance in fraud claims and found that the district court erred in overgeneralizing the presumption of reliance, as it varied by state laws. The Eleventh Circuit noted that the district court did not investigate whether and when a presumption of reliance was applicable under each state ’ s laws. Because the Eleventh Circuit restated the critical nature of reliance analyses in class

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