By Michael Hoenig - New York Law Journal -
July 9, 2012
reports on three recent decisions. In the U.S. Court of Appeals
for the Tenth Circuit's Winzler opinion, an automobile
manufacturer's recall campaign was held to moot plaintiff's
putative class action. In the New York Appellate Division's
Gabriel decision, the Fourth Department ruled that illegal
foreign worker-plaintiffs could be deposed and trial testimony
taken via video conference in their home countries. In the U.S.
Court of Appeals for the Eleventh Circuit's Farias
decision, the appellate court upheld a Florida federal court's
summary judgment dismissing a claim that warnings were defective
because they did not include admonitions in Spanish.
In a prior
article I suggested that, in some respects, we are witnessing a
"class actionization of America" in which some lawyers adroitly
use broadly worded state consumer fraud acts to plead that the
slightest perceived dereliction regarding a product or service
amounts to a deep, conspiratorial, anti-consumer fraud.1
Despite some incisive judicial reevaluations regarding the
wisdom of placing all claimants' eggs into one super-litigation
basket or the inadvisability of allowing certain national, mass
products liability actions,2 many judges nevertheless
view putative class actions as angelic missions that deserve to
survive despite a blitz of reasons why they should not. This
phenomenon has spawned a
in which ordinary breach of warranty or "Lemon Law" claims are
transformed by pleadings into putative class actions.
Thus, when a
well-reasoned decision comes along that injects a much-needed
dose of lucidity regarding dismissal of a needless class action,
we ought to take note of it. A breath of judicial fresh air now
and then can remind us that the fee-driven thicket known as
class action litigation needs to be pruned and tamed, lest its
jungle-like growth overwhelm its limited purposes.
Winzler v. Toyota Motor Sales U.S.A.3 Issued
by the Tenth Circuit on June 18, the decision held that Toyota's
conduct of a recall campaign overseen by the National Highway
Transportation Safety Administration (NHTSA) mooted the
plaintiff's class action even though it was commenced prior to
plaintiff filed state law claims against Toyota on behalf of a
proposed nationwide class of 2006 Toyota Corolla and Matrix
owners and lessees. She alleged that the cars' "Engine Control
Modules" (ECMs) were defective making them prone to stalling
without warning. She asked for an order requiring Toyota to
notify all relevant owners of the defect and then to create and
coordinate an equitable fund to pay for repairs. Before any
class action was certified, plaintiff's complaint was dismissed
for failure to state a claim.
plaintiff began her appeal, Toyota announced a nationwide recall
of 2005-2008 Toyota Corolla and Matrix cars to fix their ECMs.
The NHTSA oversees such recall campaigns and can issue stiff
fines if the company falls short in carrying out the recall to
the safety agency's satisfaction. Among other arguments, Toyota
asked the appellate court to find that the recall events
overtook plaintiff's lawsuit and rendered it moot.
This caused the
panel to examine the doctrine of "mootness" in light of
plaintiff's claim for equitable relief. Such claims appeal to
the "remedial discretion" of the courts which, necessarily,
includes the "concomitant power to deny relief altogether." If
events so overtake a lawsuit that the anticipated benefits of a
remedial decree no longer justify the trouble of deciding the
case on the merits, "equity may demand not decision but
dismissal." When it does, a court will hold the case to be
"prudentially moot." Even if a "flicker of life" may be left in
the lawsuit, even though it may still qualify as a "case or
controversy" for the purposes of "standing," a case can reach
the point where "prolonging the litigation any longer would
itself be inequitable."
mootness" doctrine often appears when a plaintiff starts with a
viable complaint but then a coordinate branch of government
steps in to promise the relief she seeks. Sometimes, for
example, a plaintiff seeks to enjoin an agency's enforcement of
a regulation which the agency later offers to withdraw on its
own. Or, a plaintiff may ask a government department to take an
action that it eventually agrees to take voluntarily. Once the
plaintiff has a remedial promise from a coordinate branch in
hand, the court will generally decline "to add the promise of a
judicial remedy to the heap."
commitments of the coordinate branches of the U.S. government
"bear special gravity." Governmental promises are taken
seriously not only because they are generally trustworthy but
because affording a judicial remedy on top of one already
offered by a coordinate branch "risks needless inter-branch
disputes over the execution of the remedial process and the
duplicative expenditure of finite public resources." It also
risks the "entirely unwanted consequence of discouraging other
branches from seeking to resolve disputes pending in court."
Here, plaintiff's case had all the traditional ingredients of a
prudentially moot case. By filing documents with NHTSA for a
recall, Toyota set into motion "the great grinding gears of a
statutorily mandated and administratively overseen national
Given all this,
said the court, there remains not enough value left for the
courts to add in this case to warrant carrying on with the
business of deciding its merits. "Congress and the Executive
have committed to ensure [plaintiff] precisely the relief she
seeks." At best, the court might duplicate their efforts and
"waste finite public resources in the process." At worst, the
court might invite "inter-branch confusion and turf battles"
over the details of carrying out an agreed objective.
intervention would, as well, "surely add new transaction costs
for Toyota and perhaps reduce the incentive manufacturers have
to initiate recalls," all the while offering not even a sliver
of additional relief for plaintiff and class members she seeks
to represent. "Perhaps the lawyers would benefit," but it is
hard to see "how anyone else could."
exists a "cognizable danger" that the coordinate branch will
fail and plaintiff will be left without a complete remedy, the
court will continue with the case. But, in order to carry the
burden of showing a cognizable danger of failure, a plaintiff
must point the court to "something more than the mere
possibility" of failure. And, it is not enough to merely
speculate about or imagine how the other branches of government
might fail. To keep the case "alive," plaintiff has to identify
something more than mere possibility. Here her efforts fell
short. Toyota supplemented the record with materials from
NHTSA's file of which the court took judicial notice, even while
the case was on appeal. Further, the fact that Toyota's recall
was "voluntary" was of no moment. Once the "recall ball gets
rolling," the result is the same. NHTSA oversight and
enforcement tools follow.
even were the agency's processes to effect a remedy shown to be
different from a judicial decree, a "cognizable danger" of
failure would not be shown. "After all, there are many ways to
skin a cat and many ways to provide an effective equitable
remedy." Even though reasonable minds might differ about the
ideal method of notice, the most optimal timeline for repair,
where the repairs should occur, and so on, the recall can still
wind up "with equally effective results."
Just as courts
are given a range of discretion in shaping an equitable remedy,
reversible only for abuse, so too, coordinate government
branches should enjoy no less latitude. Indeed, concerns for
comity would suggest even more discretionary latitude should be
given when it comes to selecting the most appropriate path to a
stated remedial objective.
differences in processes between the safety agency's actions and
a judicial decree "would involve not a little hubris,"
suggesting that the courts' ways are always the best ways.
Plaintiff simply worries that the agency may fall down on the
job. But that is nothing other than a hypothetical possibility,
a "conjectural but not cognizable danger." Although Toyota
raised many other bases for dismissal, the Tenth Circuit panel
opted for the "narrowest one," prudential mootness.
limitations here, in order to report on two other recent
developments, the following survey avoids extensive discussion
of facts and court reasoning. The focus is on the pith and
substance of the rulings and leaves to interested readers the
task of further study.
Gabriel v. Johnston's L.P. Gas Service,4 a
gas stove explosion at a farm camp killed one migrant worker and
injured nine others. Plaintiffs were the nine injured workers,
six of them from Guatemala and three from Mexico. All were
illegal, undocumented farm workers. They sued various
defendants. Some of the plaintiffs were deposed, but others were
not. The trial court directed that depositions and medical
examinations be completed by a date certain. Most of the
plaintiffs, however, returned to their countries because of
their illegal status, their financial hardship or superior
ability to care for their injuries back home.
moved for a protective order to allow those plaintiffs who
returned home to be deposed by video conference. Further, they
sought an order allowing their trial testimony to be taken by
video conference. The grounds advanced for these motions were
the inability of the plaintiffs to get visas or to return to the
United States and, further, that applications to immigration
authorities were too expensive (each application came with a
$140 fee and some $500 in transportation expenses for an arduous
16-hour trip from their village to the U.S. Embassy in
Guatemala). Defendants opposed the motions and cross-moved for
an order dismissing the complaint as to those plaintiffs who did
not appear for deposition in New York, plus dismissal of the
complaint for those who had left the United States and who
failed to show up for trial.
contended that any hardship sustained by plaintiffs was
self-imposed by their illegal entry into the United States.
Further, taking depositions and trial testimony by video would
be prejudicial due to potential problems with technology,
inability to evaluate witness credibility, language barriers,
potential perjury and impairment of the jury's assessment of
witness credibility and plaintiffs' injuries.
also made of difficulty in locating an interpreter and enforcing
the witness oath. Additionally, video trial testimony would
preclude defendants from calling plaintiffs as rebuttal
witnesses. Balancing the equities, the trial court set a trial
date directing plaintiffs to return to the United States for
depositions and medical examinations 60 days before trial. It
denied defendants' cross-motions without prejudice.
Division, Fourth Department, reversed holding that undue
hardship, when shown, allows a court to issue a protective order
that depositions be conducted outside the country. Here the
trial court abused its discretion since plaintiffs faced
financial and legal impediments in returning to the United
States. As for use of testimony by video conference at trial,
the court observed that deposition testimony is within a court's
discretion to allow at trial. Although the law prefers "oral
testimony in open court," the inability of plaintiffs to return
to this country tipped the equities in plaintiffs' favor.
Moreover, since the New York Court of Appeals had earlier held
that an illegal alien was not barred from pursuing an injury
action (in order to further the public policy of tort deterrence
principles under the federal Immigration Reform and Control
Act), allowing video testimony from Mexico and Guatemala would
also support these tort deterrence principles.
Farias v. Mr. Heater Inc.,5 plaintiff sued
for failure to warn from indoor use of two propane-fired
infra-red portable heaters purchased from Home Depot. Some
$300,000 in fire damage occurred to her home when she failed to
close a valve on one of the propane tanks. Actually, this was an
insurer subrogation suit since the latter paid the loss. The
federal district court in Florida resolved the warnings claim as
a matter of law and plaintiff appealed. Much of plaintiff's
complaint and the summary judgment arguments addressed whether
defendants had a duty under Florida law to provide warnings in
the Spanish language.
court concluded that Florida law did not automatically impose a
duty to provide bilingual warnings on consumer products. The
Eleventh Circuit found no error in the district court's
conclusion that warnings provided by defendants were adequate as
a matter of law. Further, the appellate court was not persuaded
that this suit was similar to a 1992 case where a federal
district court in Florida held that defendant's targeting of
advertising in Miami's Hispanic media and the presence of many
foreign-speaking individuals in the Miami work force, raised a
jury issue whether adequate warnings should have included
language other than English.6
plaintiff Lilybet Farias produced no evidence that Home Depot or
the manufacturers specifically had marketed the heaters to
Spanish-speaking customers through the use of Hispanic media.
Further, Home Depot's recent institution of an internal policy
for all of its vendors to use bilingual packaging was "not
evidence of a targeted marketing campaign" to Miami's Hispanic
community through predominantly Hispanic media outlets.
is a member of Herzfeld & Rubin.
1. Hoenig, "Class
Action Imbroglios Revisited," New York Law Journal,
Nov. 12, 2010, p. 3. See also, Hoenig, "Seventh
Circuit Unmasks Class Action Ills," NYLJ, Dec. 13,
2010, p. 3; "Class
Actions to Be Decided by the Supreme Court," NYLJ,
Oct. 18, 2010, p. 3; "'Monkey
Business' In the Class Action Jungle," NYLJ, Sept.
10, 2007, p. 3; "Class Action Imbroglios Revisited," NYLJ,
May 13, 2002, p. 3.
In re Rhone-Poulenc Rorer, 51 F.3d 1293 (7th Cir. 1995);
In re Bridgestone/Firestone Tire Prod. Liab. Litigation,
288 F.3d 1012 (7th Cir. 2002);
Thorogood v. Sears Roebuck & Co., 624 F.3d 842 (7th Cir.
2010), pet. for rehearing and rehearing en banc denied, 627 F.3d
289 (7th Cir. 2010).
3. 2012 U.S.
App LEXIS 12297 (10th Cir. June 18, 2012).
4. No. 587, CA
11-02517 (N.Y. App. Div., 4th Dept. June 15, 2012) (Slip
Opinion); See the news article about this decision, J. Caher, "Workers
Cleared to Testify by Video From Home Countries," NYLJ,
June 19, 2012.
5. 2012 U.S.
App. LEXIS 12749 (11th Cir. June 21, 2012).
Stanley Indus. v. W.M. Barr & Co., 784 F.Supp. 1570,
1576 (S.D. Fla. 1992).
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