CLASS ACTIONS – SOSA REDUX
Imagine going to your grocery store and ringing up $37.40
worth of purchases. You hand the teller
two twenties because you don’t have the exact change. The teller then decides to keep your
change. You don’t have to spend three
years in law school to realize that’s wrong.
Well, that’s precisely what happened to Christine Baldwin. She traded in her car at Miami Auto. Retail,
under the tradename of Brickell Honda. They
estimated how much it would cost to pay off the lien on her trade in. After they overestimated that amount, they
kept the change. But Brickell Honda didn’t just
do it to Ms. Baldwin. They do it as a
business practice to everyone. They just
keep the change. If you don’t believe
me, read:
The majority
opinion written by Judge Rothenberg states “Brickell Honda
did not notify Ms. Baldwin or give her a refund for the difference.”
Judge Victoria
Sigler certified the class as a violation of the Florida Deceptive and Unfair
Trade Practices Act. In reviewing that
order, the majority opinion acknowledges that the standard of review is abuse
of discretion, but the analysis, in my view, is more of a de novo
review.
The court reviews
each of the factors required under rule 1.220 for class certification and agrees with the trial court that the plaintiff
satisfied numerosity and commonality. The
court states, however, that “Ms. Baldwin does have a typicality problem,”
not because her allegations that Brickell Honda typically “keeps the change,”
but because Brickell Honda has different defenses for their conduct. In Ms. Baldwin’s case, it was her own fault
that Brickell Honda overestimated the payoff amount because it was based on her
own representations to the dealer and because she had inadvertently made an
additional monthly payment on her lease.
But so what? Why is the reason for keeping the change relevant?
The majority also
finds that Ms. Baldwin has a problem with predominance and superiority. To do so, it examines the statute under which the
trial court certified the class—F.S. § 501.976(11), which provides that it is a
FDUTPA violation to:
Add to the cash price of a vehicle as defined in s. 520.02(2) any fee or
charge other than those provided in that section… All fees or charges permitted
to be added to the cash price… must be fully disclosed to customers in all
binding contracts concerning the vehicle's selling price.
The majority then
delves into the merits of Ms. Baldwin’s claim to conclude that “the
estimation of the trade-in value of her leased vehicle was not an add-on to the
price of the vehicle she was purchasing—it was a deduction…” Mathematics is not my forte, but you add the purchase price, subtract
the trade-in value, but then you add the lien payoff amount. Maybe that is why appellate courts should not
be making findings of fact. Ms. Baldwin
is alleging that Brickell Honda never disclosed that they were going to be
keeping the change. That’s an
addition, not a subtraction.
In Sosa v. Safeway Premium Finance,
73 So. 3d 91 (Fla. 2011), the Florida Supreme Court reversed another instance where the Third
District disagreed with another class certification by another trial judge (former
Judge Mary Barzee). In Sosa, the
supreme court wrote:
The decision of the Third District was incorrect because, in making its own
factual findings as to whether Sosa and the putative class members satisfied rule 1.220, the Third District afforded no deference to the
trial court's actual factual findings and conducted a de novo review.
In my view, this new opinion does exactly the same thing.
