Speaking of the 3d DCA and Class Actions.....

It's almost as if the Florida Supreme Court read today's 3d DCA Watch and decided to weigh in with a definitive beat down.

It's true the beat down deals with an earlier, equally tragic 3d DCA opinion (which led to a brawl between Judges Shepherd and Gersten that I wrote about here) but the unusually pointed language directed to the bunker dwellers should certainly give them pause before they dink another consumer class.

A few observations:

The FSC's discussion of how the 3d went off and did their own fact-finding, totally ignoring the trial court's actual findings of fact and giving them no deference at all, is especially ironic given that certain judges purport to really hold the proper standard of review and limited role of the appellate court to be sacrosanct:
In this matter, the Third District erred by not applying the abuse of discretion standard of review to the trial court‟s grant of class certification. See Sosa, 15 So. 3d at 9-11. Rather, the Third District conducted a de novo review, as it gave no deference to the trial court‟s factual findings and made its own independent determination as to whether Sosa satisfied the requirements of rule 1.220. See id. More specifically, in lieu of pointing to the lack of competent, substantial evidence supporting the trial court‟s order, or stating why the trial court‟s conclusions of law were erroneous, the Third District made its own findings that Sosa and the putative class members did not satisfy the commonality and predominance elements of rule 1.220, and that Sosa failed to meet section 627.835‟s “knowingly” requirement. Then, the Third District held that the trial court erred because it did not find the same. This constituted a de novo review and error.
On top of that, the FSC gives a basic jurisprudence lesson to the 3d in how to handle the easily-met "commonality" element in the class action analysis, which the 3d hung its hat on in reversing the Tire Kingdom class yesterday:
 The approach of the Third District was erroneous and conflicted with the proper application of the commonality requirement articulated in Glen Cove and Olen Properties, because it diverted the proper focus from the common and routine course of conduct and billing practice of Safeway overcharging its customers to the mere factual differences surrounding each putative class member‟s claim. The Third District did not even consider that Safeway‟s common course of conduct and routine billing practice served as the basis for Sosa‟s and the putative class members‟ claims. Rather, to negate commonality, the Third District focused only on the possibility of mere factual differences in the individual circumstances surrounding each of the putative class members‟ claims and the variances in defenses to them. This was error, as the focus of a court in reviewing a finding of the commonality requirement is on whether the class members predicated their claims on the same common course of conduct by the defendant and the same legal theory.
Finally, in another irony given yesterday's Tire Kingdom opinion, the FSC held that the 3d got totally wrong whether or not you should examine the merits at the class certification stage:
The Third District in Sosa erred when it held that the trial court improperly granted Sosa‟s motion for class certification on the basis that Sosa failed to demonstrate that Safeway knowingly overcharged him in contravention of sections 627.840 and 627.835. See Sosa, 15 So. 3d at 11. The Third District erred because whether Safeway “knowingly” overcharged Sosa is a question of fact for a jury, and, therefore, Sosa was not required to prove that element in his pretrial motion for class certification. See Lynch v. Brown, 489 So. 2d 65, 66-67 (Fla. 1st DCA 1986). When it determined that Sosa could not serve as class representative because he failed to demonstrate that Safeway “knowingly” overcharged him, the Third District improperly conflated rule 1.220‟s class certification requirements with a question for the trier of fact. Rather, at issue during Sosa‟s motion for class certification was whether Sosa and the putative class members, based on the parties‟ arguments, pleadings, and discovery, met the requirements for class certification—an inquiry that restricted the trial court‟s examination to the substance of the motion and not the merits of the cause of action or questions of fact for a jury.
This was precisely what Judge Shepherd complained that the trial court got horribly wrong in Tire Kingdom:
First, not only are the trial court’s impressions not supported by the record, but also they constitute improper incursion by the trial court into the merits of the case. Controlling precedent makes clear that a trial court considering whether an action may be maintained is not to focus on the merits of the case, but only on the requirements of the rule....
Pot, meet my friend Kettle!


  1. Your smack down was more entertaining!

  2. There are judges in the Third who think they get to decide and try facts. Lordy Lordy The Fla. Supreme Cout called them on it. Amen and all that.

  3. Can you splain to me Lucy why there is a reference in Tire Kingdom to the relationship between the class plaintiff and his law firm. Of what signficance, relevance, or importance is that to the opinion?

  4. The judge just thought that was an interesting fact to find.

  5. Fair and Balanced

  6. LOL. This reminds me of the movie "Young Guns II." Kiefer Sutherland's character says to Emilio Estevez's character, "William H. Bonney, you are not a god." To which Emilio Estevez's character replies, "Why don't you pull the trigger and find out."

    In that same vein, I'm sure there are judges out there who think that they're gods.

  7. It is interesting to share in words so my question is that what size and kind of off road tires would look best on a Ford Explorer?I want off road tires , but know little to nothing about them Tires in Florida


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