Commonality

A district court judge in the Northern District of California recently denied class certification in a putative privacy class action against Google and its Real Time Bidding (“RTB”) advertising system. Plaintiffs moved to certify both damages and injunctive relief classes based on allegations that Google shared personal information through its RTB system. The court denied with prejudice certification under Rule 23(b)(3), finding that individual questions about class member’s past consent to—and subjective understanding of—Google’s disclosures would predominate. The district court also denied the proposed injunctive relief class on the grounds that the proposed class definition was “fail-safe” and that plaintiffs had not met their burden to prove that their data was representative of the proposed class, but the court did so with leave to amend and requested further briefing. Plaintiffs subsequently petitioned for leave to appeal the denial to the Ninth Circuit.Continue Reading Affirmative Defense of Consent Leads to 23(b)(3) Class Certification Denial in Google Ad Bidding Privacy Litigation

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 Third Circuit’s recent decision in Allen v. Ollie’s Bargain Outlet, Inc., — F.4th —-, 2022 WL 2284654 (3d Cir. 2022), gave close scrutiny to two elements of the class certification inquiry – numerosity and commonality – that are often deemed satisfied with little analysis, and rejected the district court’s reliance on inferences drawn from limited evidence. Continue Reading Third Circuit Refuses to Accept Inferences to Support Findings of Numerosity and Commonality