Consumer Protection Class Actions Have Important Position, Applying New York's Statutory Scheme

Consumer Protection Class Actions (continued)

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The requirement of CPLR § 901(a)(1) and Federal Rule 23(a)(1), that the class must be so numerous that the joinder of all members is impracticable, should always be satisfied in a consumer protection class action. The vast majority of consumer protection class actions involve thousands, if not tens of thousands, of prospective class members. Even before discovery, P.C. is aware from Acme's public statements that it has sold tens of thousands of Super Ear hearing aids throughout the country.

The requirements of CPLR § 901(a)(2) and Federal Rule 23(a)(2) and (b)(3), that there be questions of law and fact common to the class which predominate over questions of affecting only individual members of the class, will be satisfied in most consumer protection cases. P.C. figures common questions of fact common to the class include whether Super Ear can perform as represented by Acme, whether Acme engaged in deceptive or misleading acts, and whether Acme's advertisements were misleading. Remember, the question of whether a defendant's act or practice is misleading is subject to an objective standard of consideration, not a subjective analysis that might implicate the mental state of individual class members. Remember also that there is no reliance element under Sections 349 or 350, thereby eliminating related individual issues.

Much has been made about the propriety of class actions involving claims for personal injuries following the Supreme Court's decision in Amchem Products, 117 S. Ct. 2231. Most consumer protection class actions should, however, be unaffected by that case. Unlike mass tort cases, which typically involve personal injuries of varying significance allegedly caused by exposure to or use of a substance or product, consumer protection classes involve economic losses derived from the same deceptive conduct or course of conduct. The Supreme Court in Amchem observed that: "Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the anti-trust laws." Id. at 2250.

The requirement of CPLR § 901(a)(3) and Federal Rule 23(a)(3), that the claims of the representative plaintiff be typical of the claims of the entire class, should always be satisfied in a consumer protection cases. The analysis here is closely related to that under the commonality prong of the rules. The claims of Ed Tort and all class members are based on the same deceptive course of conduct, and the substantially same false and misleading statements, by Acme concerning the quality and performance of the Super Ear hearing aid.

P.C. is aware that Acme may argue that because Ed received Acme's alleged misrepresentations through a specific advertisement and a specific oral sales pitch, his claims are not typical of the claims of class members who saw different advertisements or heard a different sales pitch from a different sales person. (Acme may also argue that these distinctions give rise to predominant individual issues.) P.C. knows, however, that with 'respect to the requirement of typicality, it is not necessary that the claims of the named plaintiff be identical to those of the class, and, should it prove necessary, the option of creating subclasses remains." Super Glue Corp., 517 N.Y.S.2d at 767.

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