You may remember Carrera v. Bayer Corp., the somewhat controversial Third Circuit decision that decertified a consumer class because the court found that there was no reliable, objective way to determine class membership. The Carrera court deemed that the proposed class was not ascertainable because Bayer didn’t sell directly to consumers and there was no master list of people who had purchased the product at issue. For a refresher on Carrera and the ascertainability requirement, see here and here.

Critics of the Carrera decision have suggested that the ascertainability standard it sets for plaintiffs threatens the viability of the low-value consumer class action, which is what necessitated the class action mechanism in the first place. Carrera has also raised questions about what is an administratively feasible method to make class-wide determinations about ascertainability.

In the past few months, we have written about other federal courts grappling with the contours of the ascertainability requirement (the Ninth Circuit, for instance). Now, we have a decision from a state court within the Third Circuit — the Superior Court of New Jersey, Appellate Division — that clearly rejects the Third Circuit’s reasoning on the ascertainability requirement. The case is Daniels v. Hollister Co., No. A-3629-13T3 (May 13, 2015).

The Daniels plaintiffs sued Hollister Co., a clothing retailer, alleging that Hollister failed to honor certain gift cards despite representations at the time that the gift cards would never expire. The trial court certified the proposed plaintiff class, finding that the plaintiffs were not required to show ascertainability. The appeals court reviewed this as an issue of first impression and concluded that “‘ascertainability’ must play no role in considering the certification of a low-value consumer class action.”

In its decision, the Daniels appeals court noted that in New Jersey, the policy is to liberally construe plaintiffs’ allegations in favor of class certification, and that classes should be certified unless they are “clearly infeasible.” Citing Iliadis, a 2007 New Jersey Supreme Court decision, the Daniels court emphasized that “the decision to certify a class should be guided by the policy that favors an even playing field. . . .In short, the class action device’s ‘historic mission’ is caring for ‘the smaller guy.'”

The court went on to observe that the New Jersey Supreme Court has not recognized the ascertainability doctrine. In addressing federal courts’ recognition of the doctrine, the Daniels court called the issue “quite unsettled” in the Third Circuit, despite Carrera. The Daniels court ultimately held: “[W]hen the concept of ascertainability is applied inflexibly it becomes a device that serves to burden or eliminate nascent class actions without providing any societal benefit. We find that this federal doctrine as urged here imposes far too heavy of a burden on class certification where the purported injuries to class members are so minimal as to preclude the likelihood that they would be individually asserted.”

The Daniels court also noted that an ascertainability argument is especially misguided in a case where any difficulties in identifying class members are the consequence of a defendant’s own acts or omissions (such as poor record keeping policies). Finally, the court noted that should individualized mini-trials become necessary to identify class members, that such a problem should be addressed at the claims administration stage, and not the class certification stage. And even then, the court found, such an issue would not be a compelling ground for decertification.

This decision reminds us that procedural requirements can have a huge impact on outcomes. In federal courts in the Third Circuit, for instance, a putative class of small-claim consumers will have an uphill battle toward certification. But not so in a New Jersey state court. A jurisdiction’s approach to interpreting the ascertainability requirement will in large part depend on that jurisdiction’s balancing of a desire to preserve the interests of small-claims plaintiffs with concern about the preclusive effect of judgments where class membership is uncertain. Until other courts say otherwise, defendants outside New Jersey would be wise to consider raising ascertainability arguments at the certification stage.


Last week, the Supreme Court of Florida affirmed its “long-standing precedent” that a party must timely object to an inconsistent jury verdict or the objection is waived.  Coba v. Tricam Indus., Inc.,  2015 WL 2236905, at *1 (Fla. May 14, 2015).  Accordingly, where a timely objection is made and the inconsistent verdict is not resolved, a new trial is required.  In Coba, the Supreme Court addressed whether in products liability cases there exists a “fundamental nature” exception that would relieve a party from having to object immediately to an inconsistent verdict.  An inconsistent verdict exists when two definite findings of fact material to the judgment are mutually exclusive. Coba, at *6.

The “fundamental nature” exception derives from the Fourth and Fifth District Courts of Appeal holdings that the inconsistency within a jury verdict is of a fundamental nature such that failing to object before the jury is discharged would not waive the objection.  See Nissan Motor Co. v. Alvarez, 891 So.2d 4, 8 (Fla. 4th DCA 2004); Am. Catamaran Racing Ass’n (NACRA) v. McCollister, 480 So.2d 669, 671 (Fla. 5th DCA 1985).

In Coba, the personal representative of the deceased’s estate filed an action against the manufacturer and seller of the thirteen-foot ladder from which decedent fell to his death. The action alleged strict liability and negligence. The jury held that the ladder did not have a design defect that was the legal cause of the decedent’s death, but also found that there was negligence on the part of defendants.  Neither party objected to the verdict at the time it was announced. It was after the jury was discharged that defendants filed a motion to set aside the verdict asserting that it was fundamentally inconsistent: one could not find negligent design without also finding that a design defect contributed to the fall because the negligence claim required the existence of a defect.

According to the Coba Court, to preserve the issue of an inconsistent verdict objection a party must immediately raise the issue before the jury is discharged and ask that the trial court instruct the jury to continue its deliberations to cure the verdict. The verdict is not cured of inconsistency until the findings may stand at the same time without conflicting with one another.

In its opinion, the Supreme Court articulated the reasons for requiring immediate objections to inconsistent jury verdicts. First, requiring a party to object immediately to an inconsistent verdict enhances the efficiency of judicial proceedings: (1) it allows the jury to correct its verdict; and (2) it reduces the likelihood that a second trial will be required.  Second, mandating a party to raise its objection immediately prevents “gamesmanship” or strategic delays meant to avoid having an award unfavorably adjusted to “gain a calculated benefit.”  Coba, at *12.  Last, the Court concluded that the requirement of a timely objection promotes the “sanctity of the jury verdict” and permits a jury to correct a verdict based on underlying confusion improperly caused by the court, jury instructions or the parties. Id.

The Supreme Court in Coba rejected the defendants suggestion that product liability law dictates special application of a fundamental nature exception for inconsistent verdicts.  Instead, the court held that a party must immediately object to any inconsistency in a verdict, regardless of the underlying allegations, or else the objection is waived.

Overall, the holding in Coba reminds us of the importance of procedural rules in litigation.  Failing to object in a timely manner may waive a party’s right to cure underlying confusion or, more importantly, prevent a party from receiving a new trial.

As expected, yesterday Texas Governor Greg Abbott signed a law that limits the ability of municipalities to regulate fracking.  Under the statute, towns and cities can regulate above-ground aspects of oil and gas operations such as noise, traffic, and light, but cannot regulate the activity that takes place below ground.  The law only applies to municipal regulations that were passed within the last five years; older regulations are presumed to be “commercially reasonable” and enforceable. In signing the bill, Governor Abbott emphasized that the statute ensures that Texas does not have a patchwork of energy-regulation that varies from city to city.


Texas Legislature Moves to Expressly Preempt Local Bans on Fracking

May 18, 2015

Across the country litigation has sprung up over whether regulation of hydraulic fracturing (“fracking”) should take place on a federal, state, or local level.  Several state courts have addressed whether local municipalities have the power to regulate fracking, reaching different results based on individual state law.  New York’s highest court ruled that local municipalities have the […]

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Drug Manufacturer and Doctors Sue FDA Regarding Off-Label Use

May 13, 2015

Last week, a pharmaceutical company, Amarin Pharma, Inc. (“Amarin”), along with a group of physicians, filed a complaint against the U.S. Food and Drug Administration (“FDA”) in the Southern District of New York challenging the agency’s regulations that prohibit the company from disseminating “truthful and non-misleading statements” to healthcare providers about a drug’s “off-label” use.  Amarin Pharma, […]

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