Sixth Circuit

            An important issue in class action practice is how courts are to evaluate the reliability of expert evidence that purports to support class certification.  On November 22, the Sixth Circuit joined a majority of circuits in holding that a full Daubert analysis is required at the class certification stage where the expert evidence is material to class certification.

            In In re Nissan North Am., Inc. Litig., — F.4th —, 2024 WL 4864339 (6th Cir. Nov. 22, 2024), Nissan owners brought state law claims alleging various defects with automatic braking systems in Nissan vehicles.  The district court certified 10 statewide classes under Fed. R. Civ. P. 23(b)(3). Id. at *1. On interlocutory appeal, the Sixth Circuit reviewed three aspects of the district court’s certification decision:  (1) whether the case involved common questions of law or fact under Rule 23(a)(1); (2) whether common questions predominated over individual ones under Rule 23(b)(3); and (3) whether the court could rely on expert evidence without ensuring that it satisfied the Daubert standard. Id. at *3. While it found error in the district court’s determinations on each of these issues, this post focuses on the expert-related question.Continue Reading No Evading Daubert at Class Certification Stage, Sixth Circuit Rules

An Ohio federal district court recently dismissed for lack of subject matter jurisdiction a class action complaint asserting claims arising from a data breach experienced by defendant Associated Materials, LLC.  See Marlin v. Associated Materials, LLC, 2024 WL 2319115 (N.D. Ohio May 22, 2024).Continue Reading Ohio Federal Court Dismisses Data Breach Lawsuit for Lack of Article III Standing

The Sixth Circuit vacated an order certifying five statewide classes alleging a common brake defect in Ford Motor Company’s F-150 pickup trucks, remanding the case to the district court “for more searching consideration” of whether commonality under Federal Rule of Civil Procedure 23(a)(2) was satisfied.

In Weidman v. Ford Motor Co., 2022 WL 1071289 (E.D. Mich. Apr. 8, 2022), plaintiffs had filed a putative class action against Ford over an alleged defective brake cylinder in their F-150 pickup trucks.  The district court certified five statewide classes on three issues under Rule 23(c)(4): (1) whether the trucks’ brake systems were defective; (2) whether Ford possessed pre-sale knowledge of the defect; and (3) whether concealed information about the defect would be material to a reasonable buyer.

On a Rule 23(f) petition for interlocutory review, the Sixth Circuit vacated the class certification order, finding that the district court’s “cursory treatment of commonality, one of the four necessary class action ingredients, failed to meet Rule 23’s stringent requirements.”  In Re Ford Motor Co., 2023 WL 7877971, at *1 (6th Cir. Nov. 16, 2023).Continue Reading Sixth Circuit Pumps the Brakes on Class Certification Alleging Common Defects in Ford F-150 Pickup Trucks

The Sixth Circuit recently vacated a class certification order in a decision that may make it easier for defendants to defeat putative class actions where a named plaintiff asserts standing based on the injuries of absent class members.  Under the “juridical link doctrine,” a named plaintiff may bring a class action against defendants who did not injure them so long as the absent members of the proposed class would have standing to sue those defendants.  In vacating a district court order that certified a class based on this doctrine, the Sixth Circuit joined the Second Circuit in rejecting the doctrine and holding that named plaintiffs in a putative class action must have standing to sue every defendant at the time of filing.Continue Reading Sixth Circuit Rejects Juridical Link Exception to Standing in Class Actions

The Sixth Circuit recently affirmed a district court’s application of nonmutual offensive collateral estoppel to negligence claims arising out of an MDL—potentially raising the stakes for bellwether trials that are not considered binding by the district court at the outset and the impact that rulings in those cases could have on later decisions.Continue Reading Sixth Circuit Applies Offensive Collateral Estoppel in Subsequent Mass Tort Proceedings

If a tree falls in the forest but no one is around to hear it, did it make a sound?  Philosophers disagree.  If a product contains a contaminant but no one gets sick, did it cause an injury?  Judges disagree.

In the 2000s, enterprising plaintiffs’ attorneys attempted to push the boundaries of existing tort law by arguing that plaintiffs are entitled to damages for defects even when they cause no physical injury.  These so-called “no-injury” theories of liability were largely rejected by courts.  E.g., Rivera v. Wyeth-Ayerst Lab’ys, 283 F.3d 315, 320–21 (5th Cir. 2002) (dismissing “no-injury products liability law suit”); Johnson v. Bankers Life & Cas. Co., 2014 WL 4494284, at *7 (W.D. Wis. Sept. 12, 2014) (recognizing that in the “consumer product context, courts routinely find lack of standing where—while a product may have been defective in the hands of others—the individual plaintiffs did not suffer the defect and, therefore, suffered no injury”).

While these cases closed the door on “no-injury” product liability claims, they left open the possibility of other “no-injury” claims, such as claims that a manufacturing defect breached a warranty or constituted fraud.  E.g., Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007) (“Notably in this case, plaintiffs may bring claims under a contract theory based on the express and implied warranties they allege.”).

Whether and when “no-injury” claims are viable is a hotly debated question.  As more fully discussed below, courts disagree on whether a plaintiff who has purchased a contaminated or defective product—but who has successfully used the product for its intended purpose while suffering no physical injury—can maintain a claim.Continue Reading A Closer Look: Does Purchasing a Defective or Contaminated Product Always Cause an Article III Injury?

The Sixth Circuit recently made it more difficult for plaintiffs to certify a class where individualized inquiries are needed to identify class members. 

In Tarrify Properties LLC v. Cuyahoga County Ohio, 2022 WL 2128816 (6th Cir. June 14, 2022), the Sixth Circuit addressed a claim that Ohio’s tax-foreclosure statute operates as a taking under the federal and Ohio constitutions.  The plaintiff in Tarrify owned delinquent property that was transferred to an authorized land bank, and plaintiff argued that the transfer—which prevented the owner of the delinquent property from recovering the difference between the value of the land and the tax liability—amounted to a taking.  Plaintiff sought certification of a class of owners in which “the total value of [their] property exceeded the amount of the impositions on that property at the time the transfer occurred.”  Id. at *2.  The district court denied plaintiff’s motion for class certification, plaintiff appealed, and the Sixth Circuit affirmed.Continue Reading Sixth Circuit Adds Teeth to Rule 23’s Ascertainability Requirement

            The Supreme Court recently declined to review the Sixth Circuit’s decision in Sevier County Schools Federal Credit Union v. Branch Banking & Trust Co., 990 F.3d 470 (6th Cir. 2021), which presents a potential challenge to enforcing arbitration clauses added to standard account agreements.  The cert denial serves as a reminder that companies introducing arbitration agreements should take care to follow all contractual change-of-term requirements and create a record of affirmative customer assent whenever possible.Continue Reading A Closer Look: Arbitration Clauses Added to Account Agreements Face Risks After Supreme Court Declines Review of Sixth Circuit’s BB&T Decision

Under American Pipe and Construction Company v. Utah, the filing of a class complaint tolls the limitations period governing the individual claims of putative class members. 414 U.S. 538 (1974). How such tolling applies on a case-by-case basis can present difficult questions.

One such question is whether American Pipe…

Continue Reading Third and Sixth Circuits Weigh in on Applicability of American Pipe Tolling Prior to Class Certification and Upon Dismissal