Plaintiffs brought this class action against a defendant window manufacturer and seller, alleging consumer fraud claims for defects in windows manufactured and sold by the defendant over an 18 year period and for defendant's failure to publicly declare the role that the design defect played in allowing rot. The district court certified two classes of plaintiffs, a nationwide class under Fed. R.Civ. P. 23(b)(2) who owned structures with the windows but whose windows had not yet manifested the defect or whose windows had not yet been replaced and a smaller, more narrowly defined, class of plaintiffs consisting of only those who had a manifest defect and whose windows had already been replaced. The appellate court granted defendant's Fed. R. Civ. P. 23(f) appeal of the certifications.
On appeal, defendant argued that consumer fraud cases are not amenable to class treatment. The appellate court, however, noted that "[w]hile consumer fraud class actions present problems that courts must carefully consider before granting certification, there is not and should not be a rule that they never can be certified."
The Court explained that issues present in certifying a class in other consumer fraud actions were not present here, including: (1) the risk of error in cases with complex issues; (2) proximate causation; and (3) whether the claim requests final injunctive relief or primarily monetary damages.
Ralph T. Wutscher
Kahrl Wutscher LLP
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