Recent Florida Class Actions Because each state has its own unique set of consumer protection laws and judicial precedent, is typically impossible to certify a national consumer fraud class in a product defect case. Accordingly, consumer advocates must pick and choose their battles wisely, as smaller states may not have a sufficient number of aggrieved consumers to help level the playing field through the class action mechanism. With a growing population of just under 20,000,000 people, Florida is one of the most populous states in the nation. It is unsurprising, then, that Florida courts, particularly the U.S. District Court for the Southern District of Florida, have become an increasingly common battleground for class action litigation. Recent examples of major automotive consumer fraud class action cases filed in Florida include: • Batista v. Nissan North America, Inc., which involves an alleged defect that causes the continuously variable transmissions (“CVTs”) in certain Nissan Pathfinders and Infiniti QX60s to violently shake, impairing those vehicles’ ability to accelerate. The case was filed in the Miami Division of the Southern District of Florida in December 2014 by our firm in partnership with two other firms. The Court recently entered preliminary approval for a nationwide settlement class of all current and former owners and lessees of 2013–2014 Nissan Pathfinders and 2014 Infiniti QX 60s. Batista v. Nissan North America, Inc., Case No.: 1:14-cv-24728, D.E. 151 (S.D. Fla. 2016). • Sanchez-Knutson v. Ford Motor Co., which involves an alleged defect that causes carbon monoxide to seep into the occupant cabin of certain Ford Explorers. In October 2015, Judge Dimitreleous of the Southern District’s Fort Lauderdale Division certified a class of all consumers who purchased
or leased 2011–2015 Ford Explorers in Florida. In doing so, the Court accepted, “for purposes of class certification,” the plaintiff’s proposed “conjoint” damages model, which is “an analytic survey method used to measure customer preferences for specific features of products.” Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 539 (S.D. Fla. 2015). The case was set to begin trial in early August 2016, but the parties reached a settlement agreement, which has been presented to the Court for approval. The proposed settlement would cover everyone who purchased or leased a 2011–2015 Ford Explorer in the United States. Sanchez-Knutson v. Ford Motor Co., 0:14-cv-6134, D.E. 416 (S.D. Fla. 2016). • Carriuolo v. General Motors Co., which involves an alleged misrepresentation as to the safety ratings for the 2014 Cadillac CTS. The Eleventh Circuit Court of Appeals recently affirmed the certification of a class of Florida consumers who purchased the vehicles, joining ranks with a growing number of circuits that have allowed for so-called “price premium” or “overcharge” classes even after the latest wave of SCOTUS decisions narrowly construing Rule 23. See Carriuolo v. GM Co., 823 F.3d 977 (11th Cir. 2016). This case is currently set for trial in early 2017. Carriuolo v. GM Co., Case No.: 0:14-cv-61429, D.E. 99 (S.D. Fla. 2016). Additionally, Judge Moreno of the Southern District of Florida is currently presiding over the massive Takata airbag multi-district litigation (“MDL”). The consolidation of the MDL in Florida’s Southern District serves as a powerful testament to the Southern District’s ability to oversee complex litigation. Additionally, given the egregious nature of the exploding airbag inflator defect, it appears likely that the MDL litigation will generate favorable Florida consumer protection precedent.
The UCL And CLRA Versus FDUTPA The primary statutes driving consumer fraud claims in California are the Unfair Competition Law (“UCL”) and the Consumer Legal Remedies Act (“CLRA”). Florida’s corollary law is the Unfair and Deceptive Trade Practices Act (“FDUTPA”). Although there is a far greater body of law construing the UCL and CLRA, recent FDUTPA decisions have staked out the boundaries of what constitutes a cognizable and classable FDUTPA claim. This portion of the article will summarize several key distinctions between these two bodies of law. FDUTPA Is Not Limited To Safety Defects Most consumer fraud claims involving defective products revolve around an omissions theory—specifically, that the manufacturer failed to disclose a defect, and as a result, the consumer did not get what was paid for. For such a claim to be actionable under the UCL and CLRA, the plaintiff must show that the defendant was under a duty to disclose, which typically requires showing that the defect was “material.” The materiality inquiry, in turn, generally revolves around whether the defect poses a safety hazard. See Myers v. BMW of N. Am., LLC, 2016 U.S. Dist. LEXIS 140768 (N.D. Cal. Oct. 11, 2016); Lassen v. Nissan N. Am., Inc., 2016 U.S. Dist. LEXIS 139512 (C.D. Cal. Sep. 30, 2016). In contrast, courts applying FDUTPA have specifically rejected a “safety hazard” requirement in omissions cases. See Matthews v. Am. Honda Motor Co., 2012 U.S. Dist. LEXIS 90802 (S.D. Fla. June 6, 2012) (rejecting the defendant’s argument that the plaintiff’s FDUTPA claim should be dismissed because the defect at issue did not pose a safety hazard, and explaining that the “argument derives from case law interpreting California’s consumer The Trial Lawyer x 27