The Rise (and Fall) Of Consumer Fraud Nationwide Class Actions

The use of nationwide class actions as a vehicle for the aggregated resolution of multiple similar claims remains a controversial topic. The overwhelming trend in mass-produced product liability litigation has been to reject use of the class action device to prosecute claims against manufacturing defendants. Having rejected in nearly every instance various personal injury class actions, plaintiffs are recasting their run-of-the mill product liability claims into consumer fraud actions. The thinking is that consumer fraud actions ought to be more easily certifiable under a Rule 23 analysis than traditional personal injury class actions. As some plaintiffs are learning, however, consumer fraud cases are not without individual issues that stand as a bar to certification. In particular, conflicts-of-law issues play prominently and can have a dramatic impact on the certification process, including the elements of predominance, commonality, and manageability. Furthermore, proving the element of reliance has also been a stumbling block for plaintiffs seeking certification of their consumer fraud class actions in both federal and state courts.