Consumer Fraud Class Action Review – 2025

defendant argued that one lead plaintiff’s request for equitable relief – Chan’s request – was moot because he had an adequate remedy at law. The defendant simultaneously argued that Chan’s claim for monetary relief was insufficiently pled to state a viable claim for relief. The court agreed with the defendant’s equitable relief argument and granted the motion to dismiss as to that claim, but it denied the motion to dismiss Chan’s claim for monetary relief, disagreeing with the defendant that that claim for relief was insufficiently pled. On the defendant’s motion for summary judgment, the court determined that the transmission in Chan’s vehicle, equipped with a VGS3 conductor plate, was not defective. Chan’s vehicle had been fitted with a third-generation conductor plate, which the evidence established was not defective. The court found that the plaintiffs failed to provide sufficient evidence to support their claims of a design defect in this newer, third-generation conductor plate. Because the court granted summary judgment in favor of the defendant on Chan’s claims, the court found that certification of plaintiffs’ proposed class would be inappropriate. Accordingly, the court dismissed the plaintiffs’ request for equitable relief, granted summary judgment to the defendant, and denied the motion for class certification. An usual class certification ruling this past year stemmed from Hogan, et al. v. Pillow Cube Inc ., 2024 U.S. Dist. LEXIS 188939 (E.D. Wis. Oct. 17, 2024), where the plaintiffs filed a class action against the defendant for allegedly imposing an undisclosed “15% processing fee” on refunds for product returns. Id. at *1. The plaintiffs alleged that the fee was unlawful and brought multiple causes of action, including breach of contract, violation of the Utah Consumer Sales Practices Act, and violation of the Wisconsin Consumer Act. The defendant failed to respond to the lawsuit, and the Clerk of Court entered default judgment against the defendant in August 2024. The plaintiff subsequently filed a motion for class certification and for permission to conduct limited discovery to identify potential class members and determine damages. The court granted the request to conduct limited discovery, holding that the defendant’s default had prevented the plaintiffs from meeting the Rule 26(f) requirement to confer with the defendant before initiating discovery. Since the defendant had failed to participate in the litigation, the court ruled that the plaintiffs should be allowed to proceed with discovery related to class certification and damages. However, the court denied the plaintiffs’ motion for class certification (although the court did so without prejudice). The plaintiffs had proposed several nationwide and Wisconsin-only classes. Since the plaintiffs did not adequately explain why they had chosen to bring claims under the laws of certain states (Utah and Wisconsin) or whether those state laws conflicted with other applicable laws, the court determined that further clarification was needed. The court opined that in a multi-jurisdiction class action, the plaintiffs must demonstrate that their choice of state law was not arbitrary or unfair. The court observed that the plaintiffs failed to provide an explanation as to the choice of law, and therefore, the court denied the motion for class certification. The court also rejected the plaintiffs’ argument that the defendant’s default meant the court could accept their allegations as true for the purposes of class certification. The court explained that even in default cases, the plaintiffs must affirmatively prove that they meet the requirements for class certification under Rule 23. The plaintiffs in Loughlin, et al. v. Vi-Jon, LLC, 2024 U.S. Dist. LEXIS 58360 (D. Mass. Mar. 29, 2024), filed a consumer class action alleging that the defendant’s hand sanitizer, Germ-X, was falsely advertised as killing “99.99% of germs.” Id. at *2. The plaintiff claimed this representation was deceptive because it led consumers to believe that the hand sanitizer was effective as advertised and the description ultimately caused her and other consumers to pay more for the defendant’s Germ-X product. The plaintiff filed a motion for class certification pursuant to Rule 23, and the court denied the motion. Although it opined that the issue of whether Germ-X’s labeling was deceptive could be decided on a class-wide basis, the court determined that proving individual economic harm would require addressing numerous individual questions. The court further noted that the proposed class likely included many uninjured members, because they could have received the benefits they sought from the products, particularly during the COVID-19 pandemic, where effectiveness against the virus was crucial. As such, the court ruled that individual issues of injury would overwhelm common issues such that the plaintiff could not establish commonality or predominance. For these reasons, the court denied the plaintiff’s motion for class certification. The plaintiffs in another consumer class action in Melnick, et al. v. TAMKO Building Products LLC, 2024 U.S. Dist. LEXIS 131600 (D. Kan. July 25, 2024), alleged that the defendant, a manufacturer of asphalt roofing shingles, sold shingles that the manufacturer warranted met industry standards and backed by 30-to-50-year warranties. The shingles, however, did not meet tear strength standards set by the American Society for Testing and Materials (ASTM) and often failed before the warranty period ends. The plaintiffs moved for class

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