Wednesday, March 17, 2010

Central District Denies Certification of Printer Cartridge Defect Class in Kandel v. Brother Int'l Corp.

On February 1, 2010, Central District Judge Dale Fischer denied plaintiffs’ motion to certify a class arising out of an alleged Brother printer cartridge defect in Kandel v. Brother Int'l Corp., 2010 U.S. Dist. LEXIS 23493 (C.D. Cal. 2010). Plaintiffs sought to certify UCL and CLRA claims based on a theory alleging defendants (1) “designed Brother printers so as not to utilize all of the toner in the toner cartridges used in the printers”, and (2) “misled [the proposed class] … into believing that all of the toner in each cartridge would be used.” See id., at 1.  As noted by the Court, defendants did not deny that the printers do not utilize all of the toner in the cartridges, but claimed that this was an intended feature that was “included to prevent poor print quality and damage to the print drum caused by use of degraded, recycled toner.” See id., at 2. In denying certification, the Court concluded that the named plaintiff’s failed to establish the elements of typicality and adequacy.

With regard to typicality, the Court concluded that plaintiffs were subjected to unique defenses relating to standing that cut to the core of their case, including factual disputes as to (1) whether the subject printer cartridges were purchased by corporate entities associated with plaintiffs, depriving plaintiffs of “consumer” status under the CLRA and (2) whether the named plaintiffs could establish “materiality” with regard to the challenged representations due to deposition testimony conflicting with the plaintiffs’ central theory of the case. See id., at 5-9.

With regard to adequacy the Court took a seemingly extreme position, concluding that “[c]lass counsel is not adequate to prosecute the rights of an extensive class of absent class members as shown by the numerous errors and deficiencies in representation” which in the Court’s view, “cost the Court and Defendants unnecessary time and expense, and … either prejudiced or ran a high risk of prejudicing the absent class members.” See id., at 12-13. As explained by the Court, these errors turned largely on the plaintiffs' failure to serve the CLRA notice on one of the corporate defendants, as well as counsels' decision to use the term “consumer” in the proposed class definition rather than the term “person”:
The failure to give proper CLRA notice has prevented the class from seeking damages under the CLRA. This was obviously prejudicial to the class. The failure to serve BIL could have seriously prejudiced the ability of the class to acquire necessary documents and to hold Defendants liable. BIL was only reintroduced into the case due to the Court's highly charitable consolidation and amendment to the standing order. (See Docket No. 47.) Even now, proposed class counsel fails to consider the importance of whether the named Plaintiffs are "consumers." In the motion for class certification, counsel has carelessly redefined the class to be made up of "consumers" -- rather than "persons" or some other broader term -- without any apparent consideration that "consumer" is a term of art defined under the CLRA that would exclude businesses and business uses from the class. Due to this choice of words, the parties have had to litigate a distracting and unnecessary side issue of whether the class is really limited to "consumers," with Defendants obviously arguing that it is so limited and Plaintiffs backtracking from their own proposed class definition.
See Kandel v. Brother Int'l Corp., 2010 U.S. Dist. LEXIS 23493, at 14-15.

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