Lack Of ID Shuts Door On Faulty RV Fridge Class Claims
By Nathan Hale


Law360 (July 24, 2019, 9:14 PM EDT) -- A Florida federal judge ruled Wednesday that a group of consumers failed to show they could feasibly identify potentially millions of members of a proposed class action claiming Dometic Corp. sold them defective refrigerators for recreational vehicles, dismissing claims worth as much as $2 billion.

U.S. District Judge Robert N. Scola Jr.'s ruling denying class certification and dismissing the buyers' consolidated class action complaint brings an end to three years of litigation before him. It should also provide "near finality" to the possibility of a class action advancing against the Indiana-based company, according to Dometic's lead counsel, Erica W. Rutner of Lash & Goldberg LLP. While other buyers could file new suits, courts would likely apply substantial deference to the order, she said.

"We think this ruling really highlights the importance of the ascertainability requirement in defending consumer class actions," Rutner told Law360.

But Hart L. Robinovitch of Zimmerman Reed LLP, counsel for the consumers, contested the impact of the ruling, noting that Judge Scola's dismissal of the complaint was without prejudice.

"While we are still evaluating our clients’ options, we are quite confident that we can address the sole issue that the court’s order rested — RV owners' ability to attest at the appropriate time that they had a Dometic brand gas absorption refrigerator in their RV," he said.

In his nine-page order, Judge Scola agreed with Dometic that the consumers failed to support their assertion that the company's sales and warranty records could be used to ascertain eligible class members. He also agreed with the company that department of motor vehicle records or its own records from past product recalls would be insufficient to identify refrigerator purchasers. A proposal for self-identification through affidavits also lacked details of how it would work, he said.

Dometic said that because it sells its refrigerators to RV manufacturers and dealers, it does not have records of the final end buyers, and the consumers did not present any such records, the order said.

The consumers also did not explain how DMV records would help identify class members, the court said, saying such records seemed only to identify RV owners but not those who owned an allegedly defective Dometic refrigerator.

And while Dometic, by its own admission, had sent out 3 million notices for a previous recall, the fact that it sent out so many more notices for a population of approximately 1.6 million refrigerators shows it was not an administratively feasible method of identifying potential class members, the court said.

"The plaintiffs' argument is misplaced: notification is not identification," Judge Scola said.

Because of the shortcomings regarding the ascertainability requirement for class certification, Judge Scola said he did not need to address Dometic's arguments that denial was also warranted based on questions of commonality and typicality of the named plaintiffs' claims.

"This is a very clear and strong ruling that is in line with Eleventh Circuit law," said Edward Soto of Weil Gotshal & Manges LLP, who served as co-counsel for Dometic. "Ascertainability is an implicit requirement to class certification under Rule 23. After a careful review of the parties' arguments, the trial court determined that none of the plaintiffs' proposed methods provided an administratively feasible way by which class members could be identified."

Because the consumers had asserted jurisdiction only under the Class Action Fairness Act of 2005, denial of class certification prompted the court to dismiss the case without prejudice, the order said. Judge Scola said he also considered whether the consumers might assert jurisdiction under their claims of violations of the Magnuson-Moss Warranty Act, but none of their individual claims met that law's $50,000 amount in controversy requirement.

The buyers claim that Dometic's gas absorption refrigerators have a latent design defect that causes excessive corrosion inside of the boiler tubes, according to the order. They claim the corrosion causes the tubes to crack and eventually expel flammable ammonia, hydrogen gas and carcinogenic sodium chromate, resulting in a potential fire hazard or at least ruining the refrigerator's functionality.

The plaintiffs did not seek class certification based on fire or related damage or on broken refrigerators, however, but instead on the basis that they suffered an economic loss when they bought the refrigerators because they were induced to purchase them for a price they would not have paid had they been aware of the design defects, the order said.

The current complaint was the result of the consolidation of four class actions from multiple states first filed in 2016, according to Rutner and court records. In their motion, the consumers sought certification for nine sub-classes based on the states where the various plaintiffs bought their refrigerators, according to the order.

The complaint covered owners of new and used Dometic refrigerators, which could have resulted in as many as 10 million class members, Rutner said. Based on the plaintiffs' damages experts' estimates of likely damage claims per member, the collective value of the class claims could have been between $1 billion and $2 billion, she said.

The consumers are represented by Adam Moskowitz, Howard M. Bushman and Joseph M. Kaye of The Moskowitz Law Firm PLLC, Hart L. Robinovitch and Caleb Marker of Zimmerman Reed LLP, Jack Scarola of Searcy Denney Scarola Barnhart & Shipley PA, Steve W. Berman, Thomas E. Loeser and Barbara Mahoney of Hagens Berman Sobol Shapiro LLP, and Terrence A. Beard.

Dometic is represented by Erica W. Rutner, Martin B. Goldberg, Greg Weintraub, Jonathan L. Williams, Nicholas A. Ortiz, Gina P. Rhodes and Emily L. Pincow of Lash & Goldberg LLP, and Edward Soto, Pravin R. Patel, Brian Liegel, Corey Brady and Lara Bach of Weil Gotshal & Manges LLP.

The case is Papasan et al. v. Dometic Corp., case number 1:16-cv-22482, in the U.S. District Court for the Southern District of Florida.