Consumer Fraud Class Action Review – 2025

certification, and the court denied their motion. Hailing from several different states, the plaintiffs sought to certify sub-classes for each state. In addition, the plaintiffs moved to certify a class under Rule 23(b)(3) for damages and another under Rule 23(b)(2) for injunctive relief, focusing on common issues across Connecticut, Ohio, and Illinois. For the plaintiffs’ strict liability claims, the pertinent law of each state imposed different standards. The plaintiffs contended that a common defect in shingles and failure to warn could be proven on a class-wide basis, but the defendant argued that proving a defect and causation involved individualized inquiries under state specific laws. The court agreed with the defendant that the need for individualized proof of defects and causation would predominate over any common claims. The court also found that individualized issues related to notice and causation would predominate over common claims such that Rule 23 certification was inappropriate. Ultimately, the court concluded that individualized issues regarding the shingles’ defects, causation, notice, and reliance would overcome any common issues that proposed class members may have shared, so a class action was not the superior method of adjudicating the plaintiffs’ claims. A former student, in Schultz, et al. v. Emory University , 2024 U.S. App. LEXIS 26513 (11th Cir. Oct. 21, 2024), filed a consumer class action alleging that the defendant, a university, breached an implied contract to provide in-person education during the COVID-19 pandemic when the university switched to on-line education. As a result of the shift to remote learning, the students asserted that they received a remote education lower in value than that which they had initially paid for, which was an in-person education. The plaintiff argued that the students and the defendant formed an implied contract based on the defendant’s promotional materials and its historical practice of offering in-person classes. The plaintiff moved for class certification pursuant to Rule 23, and the district court granted the motion. The district court certified a class consisting of all individuals who paid tuition for in-person instruction during the Spring 2020 semester. It found that common questions regarding the existence of an implied contract and the nature of the damages predominated over any individual issues. The district court also found that the defendant’s typical practices could have implied a commitment to provide in- person classes and that the plaintiffs’ proposed method for calculating damages – by determining the difference between what each class member paid, and the perceived market value of the education received – could be applied on a class-wide basis. The district court acknowledged some manageability concerns, so it ordered the plaintiffs to submit a detailed plan for class identification and management. The district court stated that it would decertify the class if the plaintiffs’ plan was insufficient such that the class action would be unmanageable. On appeal, the Eleventh Circuit vacated and remanded the district court’s ruling. The defendant contended that common evidence of implied contracts and the feasibility of class-wide damages calculations were overstated, as individualized issues would predominate over common ones. The defendant also argued that the district court improperly placed the burden on the university to demonstrate deficiencies in the plaintiffs’ damages models. The Eleventh Circuit held that the district court erred in two ways, including: (i) the district had erroneously assumed that damages must be measurable on a class-wide basis for common issues to predominate; and (ii) the district court incorrectly shifted the burden on the defendant to prove that the plaintiffs’ damages models were unworkable, rather than requiring the plaintiffs to demonstrate that their models could be applied effectively across their proposed class. For these reasons, the Eleventh Circuit vacated the district court’s certification order and remanded the case for further consideration. The court also denied class certification in Simpson, et al. v. Stonemor GP, LLC, 2024 U.S. Dist. LEXIS 56779 (W.D.N.C. Mar. 28, 2024), where the plaintiffs filed a class action alleging negligence, breach of contract, and violation of North Carolina’s Unfair and Deceptive Trade Practices Act in connection with the defendant’s management of cemetery burial plots. The plaintiffs moved to certify two classes, with one consisting of burial plot contract holders, and the other consisting of next of kin of individuals buried at the cemetery. The court denied the plaintiffs’ Rule 23 motion. First, the court found that the proposed classes were not sufficiently defined and readily ascertainable. The court reasoned that identifying class members, especially over such an extensive period (since 1969), would be impractical due to unreliable records and the broad scope of the proposed classes. The court also found that the plaintiffs failed to carry their burden of establishing commonality due to the varying individual claims. For example, the proposed class members had different injuries and experiences such that there was no common nexus to the proposed members’ claims. The court determined that the lead plaintiff’s claims were not typical of the proposed class members’ claims due to the broad and varied nature of the alleged misconduct. Moreover, the plaintiffs did not demonstrate how separate actions would result in incompatible standards of conduct for the defendants, so there was no basis on which to find a class action was a superior procedural vehicle by which the proposed members’ claims should have been litigated. Also weighing against the superiority of the class action over individual lawsuits was the fact that

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