Duane Morris Consumer Fraud Class Action Review – 2024

use of class member affidavits would require mini-trials to test the credibility of declarants, and determining whether any given class member fit within the objective criteria of the class would require an individual inquiry into the circumstances of their transaction and the credibility of their testimony. Accordingly, the court denied the plaintiffs’ motion for class certification. The plaintiffs in Omori, et al. v. Brandeis University, 2023 U.S. Dist. LEXIS 86168 (D. Mass. May 17, 2023), a group of university students, filed a class action alleging claims of breach of contract, unjust enrichment, and conversion in connection with the defendant ’ s failure to refund tuition fees for the Spring 2020 semester when it transitioned to online classes during the COVID-19 pandemic. The plaintiffs filed a motion for certification of two classes including: (i) a tuition class, consisting of all students charged tuition during the Spring 2020 term; and (ii) a studio fee class, consisting of all students charged a Studio Fee during that term. The court denied the motion. The court found that the plaintiffs could not meet the predominance requirement for either class. As to the tuition class, the court found that the plaintiffs’ proposed damages model did not account for that difference or address whether it would impact certain courses and students but not others. Further, the court stated that the model failed to account for how COVID-19 itself may have affected the value of online education in the Spring semester of 2020 or address whether that effect may have been more pronounced with respect to certain courses and students. The court also determined that the plaintiffs’ damages model did not address the variation in scholarships, grants, and aid provided for different kinds of programs or educational modalities. As to the studio fees class, the court noted that the plaintiffs’ proposed damages model would calculate the studio fee charged to individual class members and pro-rate it by the percentage of the time courses were held online. The court, however, noted that the only named plaintiff who paid a studio fee, received up to $300 to purchase art supplies after his studio class went remote. The court concluded that even if it were to countenance the allegations of a common injury with respect to studio fees, the existence of damages to any particular class member would necessarily turn on individual facts. For these reasons, the court denied the plaintiffs’ motion for class certification. The plaintiffs in Ortiz, et al. v. Sig Sauer, Inc., 2023 U.S. Dist. LEXIS 22713 (D.N.H. Feb. 10, 2023), initiated a class action alleging fraudulent concealment and unjust enrichment claims premised on a purported design defect in Sig Sauer ’ s firearm which made it susceptible to “drop firing,” or discharging after being dropped. Id. at *4. The plaintiffs filed a motion for class certification pursuant to Rule 23, and the court denied the motion. Under the fraudulent concealment claim, the plaintiff contended that the defendant was aware of the drop defect and failed to disclose this material fact, and that class members relied on this omission and overpaid for what they considered to be a defect-free pistol. As for the unjust enrichment claim, the plaintiff asserted that the defendant secured a benefit by selling a defective pistol at an inflated price, and it would be unjust for it to retain this benefit. The court found that individual issues predominated over common issues. The court concluded that class certification was also not appropriate as to the unjust enrichment claim because the threshold, choice-of-law analysis raised individual legal and factual inquiries, which would predominate over common issues. Finally, the court noted that the fraudulent concealment claims could not be managed in a class format because the claims would require individual proof of reliance on the defendant ’ s false representations regarding the drop safety of the P320. For these reasons, the court denied the motion for class certification. In Passman, et al. v. Peloton Interactive, Inc., 2023 U.S. Dist. LEXIS 76417 (S.D. Fla. May 11, 2023), the plaintiffs, a group of individuals who purchased Peloton Hardware and/or Peloton Membership subscriptions, filed a class action alleging that the defendant made misleading statements about the catalogue of its online classes “ever-growing” in violation of the New York ’ s consumer fraud statutes and the New York General Business Law (NYGBL). Following discovery, the plaintiffs filed a motion for class certification pursuant to Rule 23. The court denied the motion. The court found that individual questions predominated over common ones regarding causation, injury, and damages. The court determined that the plaintiffs failed to offer evidence that the “ever-growing” statement at issue caused then to incur increased costs. Id. at *8. In addition, the plaintiffs failed to propose a damages model capable of measuring the damages attributable to their theory of liability, or sufficiently establish that their damages were susceptible

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