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1.7.7.2 Avoid Claims That Require Proof of Reliance or Other Individual Issues

It is critical for the attorney to determine the suitability of potential substantive claims for class certification. To satisfy the Rule 23 requirements of commonality and predominance, the plaintiff must show that the claims of class members share common issues of law and/or fact and that the common issues predominate.

For example, if claims can be supported only by finding that each class member relied on the challenged conduct, these individual determinations might predominate in the view of some courts and certification may be denied.133 Thus, courts in most jurisdictions are reluctant to certify common law fraud claims because of strict adherence to the requirement of proof of reliance by each class member.

On the other hand, a showing of individual reliance is generally not required under UDAP statutes, and so the requirements of commonality and predominance are more easily satisfied in cases alleging these claims.134 A showing of individual reliance may also be unnecessary in civil RICO claims.135 However, allegations of racketeering with the potential for treble damages will result in increased aggressiveness on the part of the defense and, if not found to have a legitimate basis in fact by the court, may result in sanctions.136

Claims under the Fair Credit Reporting Act,137 Fair Debt Collection Practices Act,138 and Truth in Lending Act139 are frequently suitable for class certification, in part because reliance is not an element of a claim under these statutes. Numerous classes have been certified under the FDCPA,140 the FCRA,141 and the TILA,142 usually for statutory damages but at times for actual damages as well.143

Footnotes

  • 133 {125} See § 10.6.3, infra.

  • 134 {126} See § 10.6.3.3, infra.

  • 135 {127} 18 U.S.C. § 1964. See § 10.6.3.3, infra.

  • 136 {128} Pelletier v. Zweifel, 921 F.2d 1465, 1522 (11th Cir. 1991) (determining sanctions appropriate for filing frivolous RICO claims).

  • 137 {129} 15 U.S.C. §§ 1681–1681x.

  • 138 {130} 15 U.S.C. §§ 1692–1692p.

  • 139 {131} 15 U.S.C. §§ 1601–1667f.

  • 140 {132} See National Consumer Law Center, Fair Debt Collection Practices § 6.6 (8th ed. 2014), updated at www.nclc.org/library.

  • 141 {133} See National Consumer Law Center, Fair Credit Reporting §§ 11.2.3.1, 11.2.3.2, 11.2.3.3.2–11.2.3.3.7 (9th ed. 2017), updated at www.nclc.org/library.

  • 142 {134} TILA class actions seeking rescission as a remedy may, however, not be certifiable. See National Consumer Law Center, Truth in Lending § 10.9.9 (9th ed. 2015), updated at www.nclc.org/library.

  • 143 {135} Balderos v. Ill. Vehicle Premium Fin. Co., 1997 U.S. Dist. LEXIS 15683 (N.D. Ill. Oct. 2, 1997).