Toyoto's Opp to Class Cert

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

FT. LAUDERDALE DIVISION

CASE NO. 07-61234-CIV-DIMITROULEAS

ARNOLD ROSEN, Class Representative; ARTHUR GARTER; JEROME MYER; SUSAN SADETSKY, MILLIE SCHWARTZ; MARLENE SHUPACK; JULIE TREGERMAN; SHIRLEY TROUT; CAROLA ZANELLI, Plaintiffs, vs. J.M. AUTO INC. d/b/a J.M. LEXUS; SOUTHEAST TOYOTA DISTRIBUTORS L.L.C.; J.M. FAMILY ENTERPRISES INC., LEXUS U.S.A., and TOYOTA MOTOR SALES U.S.A., INC., Defendants. _________________________________________/

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

The Defendants, TOYOTA MOTOR SALES U.S.A., INC., LEXUS U.S.A., JM AUTO,

INC. d/b/a JM LEXUS, SOUTHEAST TOYOTA DISTRIBUTORS L.L.C., and JM FAMILY

ENTERPRISES, INC. (collectively “Defendants”), hereby file their Memorandum of Law in

Opposition to Plaintiffs’ September 24, 2008 Motion for Class Certification and state as follows:

STATEMENT OF PROCEEDINGS

This is an action arising out of an alleged design defect in the occupant classification system

(“OCS”) in the 2007 Lexus ES 350. Specifically, in their Complaint, which is principally based on

Defendants’ alleged violation of Florida’s Deceptive and Unfair Trade Practices Act (“FDUPTA”),

but also includes claims for breach of warranty and equitable relief, Plaintiffs allege that, in some

circumstances, the OCS utilized to determine whether persons in the right front passenger seat of

certain 2007 Lexus ES 350 vehicles are properly positioned and of sufficient stature to benefit from,

Case 0:07-cv-61234-WPD Document 53 Entered on FLSD Docket 10/13/2008 of 30

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rather than be injured by, the deployment of an airbag, does not properly “classify” those

occupants and, therefore, may suppress deployment of the right front passenger seat airbag in an

accident.1 But see Affidavit of James Benedict, PhD., dated October 10, 2008 (“Benedict Affidavit”),

attached hereto as Exhibit B (wherein Dr. Benedict describes the myriad of circumstances under

which the deployment of an airbag can actually cause, rather than prevent, serious injuries and/or

death to an occupant of the right front seat passenger). Plaintiffs now have filed a Motion for Class

Certification (“Plaintiffs’ Motion”), which is pending before the Court.

INTRODUCTION: THE EVOLUTION OF FMVSS 208

In order to properly evaluate Plaintiffs’ Motion, this Court needs to first have an

understanding of the evolution and purpose of the federal regulatory scheme relating to the design,

manufacture and performance of airbags. The National Highway Transportation Safety

Administration (“NHTSA”), an agency of the Department of Transportation (“DOT”), is the arm of

the federal government vested with the authority to promulgate, administer and enforce rules and

regulations relating to motor vehicle safety in the United States. Those rules and regulations include

Federal Motor Vehicle Safety Standard (FMVSS) 208, which today mandates, among other things,

that motor vehicle manufacturers incorporate various primary (seat belt) and supplemental (airbag)

restraint systems in all of the passenger vehicles that they market and sell in the United States.

FMVSS 208 also establishes certain mandatory performance criteria that those systems must satisfy

1 Like their Complaint, Plaintiffs’ Motion is replete with broad, unsubstantiated allegations regarding the purported existence and consequences of the alleged “defect” in the OCS. See, e.g., Plaintiffs’ Motion at pp. 2 and 3 (wherein Plaintiffs boldly state, without any evidence, that the alleged “defect” has “created an unreasonably dangerous situation for a right front seat passenger” and “substantially reduce[s] the defective vehicles’ crashworthiness”). The fact is, however, that it has never been established that there has been a single accident, where an occupant of the right front passenger seat in a 2007 Lexus ES 350 has been injured or killed as a result of the alleged “defect” in the OCS that forms the basis for Plaintiffs’ Complaint. See Defendants’ April 24, 2008 Responses to Plaintiffs’ Second Request for Production. See also Affidavit of Jeffery Pearson, dated October 10, 2008 (“Pearson Affidavit”) attached hereto as Exhibit A at pp. 6 and 7, ¶¶ 18, 20 and 21 (wherein Mr. Pearson states that the OCS in the 2007 Lexus ES 350 is “state of the art,” “fully complie[s] with the rigorous static and dynamic (i.e., crash test) criteria mandated by FMVSS 208,” and “is not defective or unreasonably dangerous”).


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prior to a vehicle’s release and sale in the United States. See Pearson Affidavit at p. 3, ¶ 8. See also

Benedict Affidavit at p. 7, ¶ 20.

The mandatory requirements of FMVSS 208 have evolved over time to reflect (or

necessitate) improvements and advancements in the technologies developed by and/or available to

automobile manufacturers and their suppliers. See Benedict Affidavit. Similarly, the overriding

safety and public policy interests that FMVSS 208 seeks to promote also have evolved from the

initial version of that standard, which merely required that automobiles sold in the United States be

equipped with lap belts, to the most recent version of the standard, which is at the core of Plaintiffs’

Complaint. Simply stated, the current version of FMVSS 208 is intended and designed to provide

improved frontal crash protection for vehicle occupants “of different sizes, belted and unbelted,”

while, at the same time, “creating less risk of serious air bag-induced injuries . . . particularly for

[out of position occupants], small women and young children.” See FMVSS 208; Occupant

Crash Protection; Fed. Reg., Vol. 65, No. 93 (May 12, 2000)(emphasis added).

Suffice it to say, safety restraint technologies have come a long way since the introduction of

lap belts. In fact, by the 1970’s, automobile manufacturers already had begun experimenting with

ways to supplement the safety afforded by those “traditional” restraint systems in higher speed

frontal collisions, including the use of airbags. However, it was not until September, 1993, that

NHTSA, through FMVSS 208, mandated that manufacturers incorporate front airbags into all

passenger vehicles sold in the United States, after September 1, 1997. Id. at Appendix B, p. 30741.

In doing so, NHTSA also established certain mandatory testing and performance criteria for those

airbag systems, which required vehicles offered for sale in the United States to meet or exceed the

standards in FMVSS 208 (e.g., that, in frontal impacts with a rigid barrier at speeds up to 30 mph, the

vehicles’ airbags protected belted and unbelted dummies, representing a biofidelic mean of the adult


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male population, from head, neck and femur loads that exceeded the specified injury criteria). See

Pearson Affidavit at p. 3, ¶ 8.

Almost immediately after the promulgation of the 1993 version of FMVSS 208, however,

NHTSA began to realize that, while then existing airbag technologies helped to significantly reduce

the risk of serious injury or death to most belted and unbelted front seat passengers, particularly adult

males and females of average to large stature in moderate to severe frontal impact collisions, the

power of a deploying airbag created a separate risk of injury and death to certain “at risk”

occupants in some crashes. See Benedict Affidavit at pp. 4 and 5, ¶¶ 11-13. Further analysis

revealed that those occupants generally fell into one of three categories: (1) small children riding in

the front seat, including those in front or rear facing car seats; (2) belted or unbelted short or small-

statured women; and (3) belted or unbelted occupants who were out of position (i.e., too close to the

airbag deployment module) at the moment of deployment, either because they were too close to

begin with or were thrown forward during the accident sequence, such that they were more likely to

be injured by, than benefit from, the deployment of an airbag. See Benedict Affidavit.

In fact, in a June, 2001 report to Congress, the General Accounting Office noted that, “while

an estimated 6,856 lives [had] been saved by airbags [in the five (5) year period since NHTSA

mandated their inclusion in all passenger vehicles] 175 fatalities – primarily children and small

women – [had] been attributed to the deployment of an airbag in relatively low speed crashes

as of April, 2001.” GAO Report entitled “VEHICLE SAFETY: Technologies, Challenges and

Research and Development Expenditures for Advanced Airbags” (June, 2001), attached hereto as

Exhibit C, at p. 1 (emphasis added). These injuries and deaths were attributable, in part, to the fact

that the so-called “first generation” airbags typically deployed with a great deal of non-variable force

and did so in all accidents where the air bag sensor system “predicted” that the impact speed would


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exceed a pre-determined threshold. Stated otherwise, conventional or “single stage” air bags

deployed/fired at the same speed and with the same degree of force, irrespective of who was seated

in the front seat, where they were seated, and the level of supplemental protection actually required

(i.e., the relative degrees of crash severity above the pre-programmed threshold).

Based on this mounting injury data, Congress passed the Transportation Equity Act for the

21st Century, in June, 1998, which, among other things, directed the DOT, through NHTSA, to

promulgate rules and regulations that would require automobile manufacturers to devise airbag

systems whose deployment and rate of deployment were more closely tailored to the severity of the

crash and the size and/or position of the driver and right front seat passenger. Two years later

(i.e., on May 12, 2000), NHTSA amended FMVSS 208. The amendments mandated that

manufacturers begin installing these advanced airbag technologies on their vehicles no later than

September 1, 2003 and that they install them on all passenger vehicles sold in the United States, after

September 1, 2007. See Benedict Affidavit at p. 4, ¶ 10. As part of those amendments, NHTSA also

established new testing criteria that vehicles were required to satisfy in order to comply with FMVSS

208 (as amended). For example, while the pre-2000 version of FMVSS 208 specified the use of

belted and unbelted crash dummies that represented average-sized (i.e., 50th percentile) adult males in

the driver and right front passenger seats in frontal impact collisions, the amended version requires

that manufacturers also test using dummies that simulate infants, 3 and 6 year old children, and the

5th percentile female (i.e., a dummy simulating a 4’ 11” tall female weighing 109 pounds); and that

they replicate a variety of different impact scenarios. See Pearson Affidavit at p. 3, ¶ 8. See also

Benedict Affidavit at p. 7, ¶ 20.

FMVSS 208 also requires the airbag systems in vehicles offered for sale in the United States

to comply with the performance criteria associated with a wide array of “static” tests. Id. See also


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Pearson Affidavit at p. 3, ¶ 8. These tests, which utilize dummy equivalents of infants, 12 month old,

3 yr. old and 6 yr. old children and 5th percentile females in various positions, are designed to ensure

that the airbag system activates and/or deploys at a rate that minimizes the risk of deployment-related

injuries or death, while, at the same time, maximizing the supplemental injury reduction benefits of

the airbag or, alternatively, that it suppresses air bag deployment in those instances where, either as a

result of the stature or position of the right front seat passenger, deployment would likely cause more

harm than it would prevent.2 Id. See also Benedict Affidavit at p. 8, ¶ 24.

Manufacturers and their suppliers ultimately developed three principal types of occupant

classification systems to satisfy FMVSS 208’s mandatory performance criteria: (1) a pressure

sensitive bladder; (2) a weight based sensor; and (3) a pattern based sensor. The pressure sensitive

bladder system, as its name suggests, relies on a fluid or air-filled pad/mat placed directly under the

seat cushion, which, through the use of calibrated software, interprets applied pressures and seat belt

loads to determine occupant weight and position for the purpose of “determining” whether to activate

or suppress the airbag. The weight based system utilizes electro-mechanical load cells mounted to

the bottom of the seat and/or attached to the seat track and frame, which are designed to weigh the

seat occupant, determine the occupant’s position, and activate or suppress the airbag accordingly.

The final method (i.e., the pattern based senor) utilizes electrical signals generated by force applied

to a grid placed under the seat cover and sophisticated software to “classify” the occupant of the right

front passenger seat by weight and position and then deploy or suppress the airbag, as required.

2 Plaintiffs grossly oversimplify and understate the purpose and requirements of FMVSS 208 on page 2 of their Motion by suggesting that it focuses exclusively on the weight of the passenger in the right front seat. Plaintiffs’ Motion at p. 2 (FMVSS 208 “mandates that the front passenger-seat airbag must be activated and operational when an individual who exceeds a specific weight is present in the seat”). Indeed, if weight activation, independent of occupant position, were the only requirement of FMVSS 208, which plainly it is not, manufacturers would not be required to develop and incorporate the highly sophisticated occupant classification systems at issue in this case. See Benedict Affidavit at pp. 7 and 8, ¶¶ 20-24.


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THE OCS IN THE 2007 LEXUS ES 350

The 2007 Lexus ES 350 utilizes one of the three occupant classification systems recognized

by NHTSA, namely the pressure sensitive bladder. See Supplemental Affidavit of Lance Lewis,

dated October 10, 2008 (“Lewis Affidavit”) at p. 2, ¶ 6, attached hereto as Exhibit D (wherein Mr.

Lewis confirms that “every model year 2007 Lexus ES 350 comes equipped with [a] front passenger

[OCS], which includes the occupant classification ECU [Electronic Control Unit], [an] occupant

classification sensor (bladder mat and pressure sensor), seat belt tension sensor, seat belt buckle

switch, AIRBAG ON/OFF indicator light, and airbag sensor assembly”).3 See also Fed. Reg. Vol. 65,

No. 93 (May 12, 2000) at p. 30743. It also is undisputed that extensive testing of that system was

conducted to ensure compliance with FMVSS 208. Pearson Affidavit at p. 7, ¶ 20. That testing

demonstrated that the 2007 Lexus ES 350 satisfied the static and dynamic test and performance

criteria in FMVSS 208, including the tests relating to the OCS (i.e., that occupants in the vehicle’s

right front passenger seat, who are properly positioned and of a sufficient stature to benefit from an

airbag will receive one, while those who are not of sufficient stature and/or were out of position, such

that they likely would be injured by the deployment of an airbag, will not). Id.

ARGUMENT

Rule 23 of the Federal Rules of Civil Procedure, which governs the pleading and prosecution

of class action complaints in federal court, makes it clear that a party seeking class certification bears

the initial burden of establishing that: (1) the putative class is so numerous that joinder of all

3 On p. 6 of their Motion, Plaintiffs, perhaps inadvertently, suggest that every 2007 Lexus ES 350 is equipped with the identical OCS that is found in Plaintiffs’ vehicles. That is not the case. The 2007 Lexus ES 350 was launched in 2006. See Lewis Affidavit at p. 2, ¶ 6. However, on April 18, 2007, TMC made a running change, which modified the OSC in the 2007 Lexus ES 350, beginning with VIN# JTHBJ46G372124651. Id. at ¶ 7. Moreover, on July 2, 2007, TMC released TSIB EL011-07, which was intended to and did address the few consumer comments regarding the OSC that it had received from owners of vehicles manufactured prior to the date of the running change. Id. at ¶ 8. Significantly, however, the vast majority of 2007 Lexus ES 350 owners did not request or require that the work contemplated by TSIB EL011-07 be performed on their vehicle either before or after the issuance of that TSIB.


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members is impracticable (“numerosity”); (2) there are questions of law or fact that are common to

the class (“commonality”); (3) the class representative’s claims are typical of the claims of the class

(“typicality”); and (4) the movant will fairly and adequately protect the interests of the class

(“adequacy”). Fed. R. Civ. P. 23(a). See also Sandlin v. Shapiro & Fishman, 168 F.R.D. 662 (M.D.

Fla. 1996)(movant for class certification bears a “strict” burden of persuasion with respect to each of

the elements of Rule 23). In addition, the movant must demonstrate that the purported class falls

within one of the categories set forth in Rule 23(b).

As a general rule, a movant’s failure to satisfy his burden with respect to any of Rule 23’s

elements is fatal to a motion for class certification. See, e.g., Kirkpatrick v. J.C. Bradford & Co., 827

F.2d 718, 721, n. 2 (11th Cir. 1987), cert. denied, 485 U.S. 959 (1988); Klay v. Humana, 382 F.3d

1241 (11th Cir. 2004); Jones v. Jeld-Wen, Inc., 250 F.R.D. 685 (S.D. Fla. 2008). See also Amchem

Products, Inc. v. Windsor, 521 U.S. 591(1997)(class certification requires a “searching inquiry” into,

and “strict compliance” with, each element of Rule 23); Brooks v. Southern Bell, 133 F.R.D. 54, 56

(S.D. Fla. 1990). Moreover, it is equally well-established that, in deciding the propriety of class

certification, a district court is permitted to look beyond the pleadings. See, e.g., Jones, 250 F.R.D. at

692 (citing Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir. 1992)

for the proposition that “it may be necessary for the court to probe behind the pleadings before

coming to rest on the certification question”).

Application of the foregoing principles to the record evidence in the instant case

affirmatively and conclusively demonstrates that Plaintiffs have not met their heavy burden under

Rule 23, in that, among other things, Plaintiffs have not adequately defined the putative class, nor

have they demonstrated the numerosity, commonality, and typicality that Rule 23(a) requires to

certify a class. Moreover, Plaintiffs have failed to discharge their burden of establishing that what


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they contend to be “common” issues of law and fact, if any, predominate over the individualized

claims and defenses that are unique to their claims or that a class action is the “superior” means of

seeking redress for the alleged defect at issue in this action, as required by Rule 23(b)(3).4

Accordingly, this Court should deny Plaintiffs’ Motion, as a matter of law.

Plaintiffs’ Class Definition Is Fatally Deficient

Federal courts, including courts in the Southern District of Florida, consistently have held

that, prior to analyzing whether a movant for class certification has discharged its obligations under

Rule 23(a) and (b), a district court must determine whether the class definition is adequate. See, e.g.,

Jones, 250 F.R.D. at 691, 692; Perez v. Metabolife Int’l, Inc., 218 F.R.D. 262, 269 (S.D. Fla. 2003);

Mauldin v. Walmart Stores, Inc., 2002 WL 2022334 at *5 n. 2 (N.D. Ga. 2002)(noting that, although

adequacy of the class definition may be considered part of the numerosity requirement, most courts

treat it as a separate question). See also O’Neill v. The Home Depot U.S.A., Inc., Case No. 05-61931-

CIV-ALTONOGA (S.D. Fla. Dec. 27, 2006)(Order Denying Motion for Class Certification, attached

hereto as Exhibit E). In doing so, these courts recognize that “[a] vague class definition portends

significant manageability problems for the court.” Rink v. Cheminova, 203 F.R.D. 648, 660 (M.D.

Fla. 2001). See also Jones, 250 F.R.D. at 692.

In their Complaint and Motion, Plaintiffs define the class of persons they seek to represent as:

Every owner and lessee of a 2007 Lexus ES 350 who purchased or leased the vehicle in Florida.

4 On page 27 of their Motion, Plaintiffs boldly assert that a class action is “superior” to allowing individual consumers to decide whether and, if so, in what forum to pursue any legal remedies they may have relating to their 2007 Lexus ES 350, because there ostensibly is a “relatively small amount in controversy” relative to the “extreme” cost that purportedly would accompany “proceed[ing] against a large corporation.” In doing so, however, Plaintiffs completely ignore the administrative remedies available under Florida’s “Lemon Law,” i.e., Section 681.10, et seq., Florida Statutes, which provides a highly efficient and effective means for resolving consumer complaints involving alleged non-conformities in vehicles at no cost to the consumer. Moreover, as a further incentive to accessing that administrative remedy, the Lemon Law expressly provides for an award of attorney’s fees and other monetary and equitable relief to a prevailing consumer. Section 681.11(1), Florida Statutes.


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Plaintiffs’ Motion at p. 1(emphasis added). See also Complaint at p. 8, ¶ 29. That definition falls

woefully short of the mark, with respect to Plaintiffs’ obligation to “precisely” and “adequately”

define the class, in one or all of the following material respects:

1. It encompasses Florida consumers who purchased 2007 Lexus ES 350 vehicles that were manufactured from April, 2007 to September, 2007 and, therefore, do not contain the part, which, upon information and belief, forms the basis for Plaintiffs’ Complaint (i.e., Part No. 89952-0W010);

2. It includes persons and/or entities who purchased a 2007 Lexus ES 350 in the resale market and, therefore, by definition, benefitted from, rather than were damaged by, any purported “diminution-in-value” attributable to the allegedly defective OCS (i.e., the cornerstone of Plaintiffs’ damage claim);

3. It includes purchasers of the subject vehicles, who, for reasons wholly unrelated to any

alleged defect in the OCS, traded their 2007 Lexus ES 350 in for another vehicle and, therefore, by definition, did not suffer the purported “diminution-in-value” that is the focal point of Plaintiffs’ damage claim;

4. It includes lessees, who, like Mr. Rosen, are contractually precluded from participating in a

class action and, instead, are obligated to arbitrate any and all tort, contract, statutory and equitable claims they may have relating to complaints about their vehicle, by virtue of the plain and unambiguous terms and conditions of their Lease Agreements;5

5. It includes lessees, who, by definition, do not have the same rights or interests as the owners of the subject vehicle (e.g., various, as yet unidentified and unnamed commercial lending institutions and/or leasing companies), in that, among other things, the lessees have a fixed lease price, which is all they will ever have to pay, whereas, if the Plaintiffs’ theories of liability (and damages) are correct, which Defendants deny, the lessor, not the lessee, stands to be damaged at least to the extent of any alleged “diminution-in-value;”

5 Although Mr. Rosen has had possession of his Lease Agreements from the outset of this litigation, the undersigned first received a copy of them on October 7, 2008. In executing those Leases, Mr. Rosen voluntarily agreed to, among other things, an arbitration provision, which, by its express terms, applies to all "claims in contract, tort, pursuant to statute, regulation, ordinance or in equity . . . against [JM Lexus] . . . or against any third party providing any product or service in connection with the Lease that [Rosen] name[s] as a co-defendant in any action against any of the foregoing." See Leases between JM Lexus and Arnold Rosen, dated June 12, 2006 and June 15, 2006 (collectively “Lease Agreements”), attached hereto as Composite Exhibit F, at ¶¶ 21 and 47. The arbitration provision further "prohibit[s] [Mr. Rosen] from participating in a class action or private attorney general action in court . . . with respect to any claims we, the Covered Parties or [Mr. Rosen] have asserted against one another or other beneficiaries of this Provision.” Id. at ¶ 47. Instead, Mr. Rosen committed to submitting any dispute he had involving the subject vehicle to binding arbitration. Id. Such provisions (i.e., the binding arbitration and the class action waiver) are enforceable under Florida and federal law. See, e.g., Fonte v. AT&T Wireless Services, Inc., 903 So. 2d 1019 (Fla. 4th DCA 2005). See also Sanders v. Comcast, 2008 WL 150479 (M.D. Fla. 2008).


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6. By including all owners and lessees, the Plaintiffs have defined a class, which, in the case of a leased vehicle, will have at least two class members (there could be others in the event that the leased vehicle subsequently has been re-leased or sold) per vehicle (i.e., the owner and the lessee), whose interests, as more specifically described in Paragraph Nos. 4 and 5 (above), are divergent, at best, if not in direct conflict with each other;

7. It includes consumers who purchased and/or leased 2007 Lexus ES 350’s outside the State of

Florida and later moved to the state, whose contractual and/or statutory remedies, if any, for alleged deficiencies in their vehicles would be governed by the laws of a state other than Florida and, therefore, fall outside the ambit of the putative class;

8. It includes consumers, who, contrary to the plain and unambiguous language of the Lexus

New Vehicle Limited Warranty and applicable Florida warranty law, did not provide the Defendants with notice of the alleged defects in the subject 2007 Lexus ES 350 vehicles and provide a reasonable opportunity to cure and, therefore, are not entitled to prosecute such warranty claims, as a matter of law (Section 672.714(1), Fla. Stat.);6 and

9. It includes persons, who, in purchasing and/or leasing their 2007 Lexus ES 350 vehicles, dealt with persons and/or entities other than authorized Lexus dealers (e.g., independent brokers and/or retailers, etc.) and, therefore, likely were exposed to brochures, advertisements, websites, marketing literature and/or sales presentations that did not originate from and were not authorized by Defendants.

On that basis alone (i.e., Plaintiffs’ failure to adequately and precisely define the class), this Court

should deny Plaintiffs’ Motion, as a matter of law. See, e.g., O’Neill, supra., at pp. 15 and 16

(wherein Judge Altonoga denied a motion for class certification, in part, on the grounds that the class

definition included individuals, who, like the resale purchasers in the instant case, may have

benefitted from the very conduct that formed the basis for the plaintiffs’ claims and/or who may very

well have been aware of the scope and/or optional nature of the allegedly actionable “damage

waiver” at issue and chose to purchase it anyway).

6 Although Plaintiffs go to great lengths to try and equate the remedies available under FDUPTA and Section 672.714, Florida Statutes (Plaintiffs’ Motion at pp. 20 and 24), there is a fundamental distinction between those statutes, which is fatal to Plaintiffs’ Motion, namely that, under Section 672.714, a buyer of “accepted” goods is only entitled to the remedy provided therein (i.e., “the difference at the time and place of acceptance between the value of the goods accepted and [their] value [had ] they been as warranted”) if he or she has first complied with the notice requirements of Section 672.607(3), Florida Statutes. See Section 672.607(3)(a)(emphasis added)(which expressly provides that “[t]he buyer must within a reasonable time after he or she discovers or should have discovered any breach notify the seller of breach or be barred from any remedy”). The record evidence, in the instant case, demonstrates that, although all of the named Plaintiffs brought their vehicles in for service at various times prior to the filing of the instant suit, only one, Arnold Rosen, reported any concerns with their OCS. See Service Records attached hereto as Composite Exhibit G.


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Plaintiffs’ Have Not Met Their Burden Of Establishing Numerosity

Fed. R. Civ. P. 23(a)(1) provides that a class action is appropriate only “if the class is so

numerous that joinder of all members is impracticable.” However, the mere size of a putative class,

standing alone, is not sufficient to satisfy the impracticability requirement of Rule 23(a)(1). See, e.g.,

Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981); Minersville Coal

Co. v. Anthracite Export Ass’n, 55 F.R.D. 426 (M.D. Pa. 1971)(refusing to certify a class of more

than 300 independent anthracite producers, in part, because the “class [was] not so numerous that

joinder of all members was impracticable”). See also Spectrum Fin. Co. v. Marconsult, Inc., 608

F.2d 377 (9th Cir. 1979)(holding that joinder of 92 putative class members, who could be identified

and reached for litigation communication, was not “impracticable”). Instead, in determining whether

joinder is “impracticable,” a district court should consider: the size of the putative class, the

geographic dispersion of the putative class members, the nature of the action, the ease of identifying

prospective class members, the size of their claims, whether class certification would further the

interests of judicial economy, the inconvenience of trying individual lawsuits, and the ability of class

members to institute individual lawsuits. See, e.g., Walco Inv., Inc. v. Thenen, 168 F.R.D. 315 (S.D.

Fla. 1996); Powers v. Government Employees Ins. Co., 192 F.R.D. 313 (S.D. Fla. 1998).

Here, Plaintiffs attempt to satisfy their burden under Rule 23(a)(1) by alleging that

“thousands of ES 350’s have been sold with defective airbag occupant classification sensor systems.”

Plaintiffs’ Complaint at p. 9, ¶ 31. However, the record evidence conclusively demonstrates that

Plaintiffs’ assertion is factually incorrect and/or badly misleading in several material respects. First,

it is true that, as of July 11, 2007, a total of 11,777 Model Year 2007 Lexus ES 350 vehicles were

sold or leased for retail delivery in the State of Florida. See Supplemental Affidavit of Frank

Fontanella, dated October 10, 2008 (“Fontanella Affidavit”) at p. 2, ¶ 8, attached hereto as Exhibit H.


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However, only a portion of those vehicles (i.e., those manufactured from March, 2006 to April 18,

2007) contain the part number that is the subject of Plaintiffs’ Complaint (i.e., Part No. 89952-

0W010). See Lewis Affidavit at p. 2, ¶ 7. The remaining 2007 Lexus ES 350’s (i.e., those

manufactured from April 18, 2007 to September, 2007 and delivered in Florida) contain Part No.

89952-0W011, which, upon information and belief, is not the subject of Plaintiffs’ Complaint. Id.

Moreover, Plaintiffs would have this Court believe and, indeed, have affirmatively alleged,

that all of the vehicles manufactured with Part No. 89952-0W010 improperly or inaccurately

“classify,” by position and/or stature, occupants of the right front passenger seat, so as to create a risk

that the occupant may not “receive” an airbag in an appropriate collision event. Plaintiffs’ Complaint

at p. 2, ¶ 5. However, the record evidence belies Plaintiffs’ contention. In fact, although, to date, the

14 Lexus dealerships located in the State of Florida (i.e., 11 primary dealerships and 3 customer

convenience outlet dealerships) have sold or leased a total of 13,337 2007 Lexus ES 350 automobiles

to date (See Fontanella Affidavit at p. 2, ¶ 9), a search of Lexus’ Customer Contact Detail database

reveals that the Lexus call center only received a total of fourteen (14) telephone calls and/or letters

from customers in the State of Florida expressing confusion or concern about the performance of the

OCS in their vehicle. See Lewis Affidavit at p. 3, ¶ 9. Stated otherwise, during the period from May,

2006 to October 2, 2008, only 0.1% of the total 2007 Lexus ES 350 customer base in the State of

Florida have contacted Lexus’ call center, by telephone or in writing, about the performance of the

OCS for the right front passenger seat in their vehicle.7 Id.

In addition, Plaintiffs have not demonstrated that it would be impracticable to identify, name,

and communicate with those few additional individuals who also claim to have experienced some

confusion or issue with the OCS in their 2007 Lexus ES 350, let alone explained why or how class

7 The number of comments received, as a percentage of units sold, are even more de minimis on a national level (i.e., 35 comments received, as compared with 120,406 vehicles sold or leased, or approximately .03%). See Fontanella Affidavit at p. 2, ¶ 9. See also Lewis Affidavit at p. 3, ¶ 10.


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certification would further the interests of judicial or litigant economy. Moreover, Plaintiffs have not

demonstrated that those consumers lack the means and the ability to institute and prosecute their own

individual claims if they truly believe that the OCS in their 2007 Lexus ES 350 is not performing to

their satisfaction. The fact is, of course, there are a number of contractual and statutory remedies

available to such consumers, some of which, like Florida’s “Lemon Law,” provide for an award of

attorney’s fees to the prevailing party. The absence of such a proffer, together with actual size of the

prospective class, is wholly insufficient to satisfy Plaintiffs’ burden with respect to the “numerosity”

and “impracticability” requirements of Rule 23(a)(1) and mandates the denial of their Motion.

The Nature of the Substantive Claims and Defenses of the Putative Class and the Variations in the Facts Underlying Those Claims Preclude a Finding of “Commonality”

In order to satisfy their burden with respect to the second mandatory pre-condition to class

certification, Plaintiffs must establish that “there are questions of law or fact common to the class.”

Rule 23(a)(2). Typically, Rule 23(a)(2) does not require that there be “commonality” as to all

questions of law and fact among the claims of the prospective class members. See, e.g., Haitian

Refugee Ctr., Inc. v. Nelson, 694 F. Supp. 864, 877 (S.D. Fla. 1988), aff’d, 872 F.2d 1555 (11th Cir.

1989). However, in order to satisfy Rule 23(a)(2), “a class action must involve issues that are

susceptible to class wide proof.” Jones, 250 F.R.D. at 693 (citing Cooper v. Southern Co., 390 F.3d

695, 713 (11th Cir. 2004)). Thus, a number of federal courts have denied class certification, based on

a movant’s failure to satisfy the requirements of Rule 23(a)(2), where the nature of the substantive

claims and defenses and variations in the facts underlying those claims preclude a finding of

“commonality.” See, e.g., Brooks v. Southern Bell Tel. & Tel. Co., 133 F.R.D. 54 (S.D. Fla. 1990).

See also Graham v. Security Sav. & Loan, 125 F.R.D. 687 (N.D. Ind. 1989); Polich v. Burlington N.,

Inc., 116 F.R.D. 258 (D. Mont. 1987).


15

Illustrative of these cases is Brooks, wherein the court cited lack of “commonality” as a basis

for its refusal to certify a class of more than 5,000 Southern Bell employees, who claimed that, by

virtue of their tenure with AT&T, they had a contractual right to free local and long distance

telephone service, emphasizing that, among other things: (1) each of the prospective class members

allegedly had a contract with the defendants, whose “terms and conditions [would] require specific,

individualized proof;” and (2) if a contract were established, the court would have to determine,

again on a contract by contract basis, the applicability of any legal defense which would bar

plaintiffs’ claims, including certain individualized defenses; such that the only true “common issues”

were the claims for relief themselves. See also Polich, 116 F.R.D. at 261 (refusing to certify a class

of former railroad employees, based on their former employer’s alleged breach of its allegedly

fraudulent promise “never to close” the shops in which the plaintiffs had worked, because each

employee brought a “unique set of facts to the case” with respect to whether they were even aware of

the defendants’ misrepresentations, the extent to which they relied on those representations, if at all,

and the nature and extent of the damages, if any, caused by the defendants’ conduct, all of which

made it impossible for the plaintiffs to demonstrate “commonality” under Rule 23(a)(2)).

There is no principled basis for distinguishing this case from Polich and Brooks on the issue

of “commonality.” Like Brooks, each of the members of the putative class entered into separate

contracts for the purchase and/or lease of their vehicles from a variety of different Lexus dealers

throughout the State of Florida.8 Those contracts of sale and/or lease, in turn, were the product of

unique negotiations and pre-contractual representations by a wide variety of salespersons and, in

some instances, likely were preceded by: test drives, which may or may not have included

8 Curiously, Plaintiffs have only named one of the 14 Florida Lexus dealerships (i.e., JM Lexus) as a Defendant in this action, despite record evidence that: (1) the allegations in their Complaint relating to pre-contractual representations and omissions would have occurred, if at all, at all Lexus dealerships in the State of Florida; and (2) only 5 of the 9 Plaintiffs actually purchased or leased their vehicle from that dealer. See Composite Exhibit G.


16

explanations and/or demonstrations relating to the operation of the airbag and OCS; independent

research by putative class members; and/or their having observed television and/or print

advertisements or brochures relating to the subject vehicles. For these reasons, the nature of and

defenses to each putative class member’s claim(s), at least as they relate to: (1) the substance of pre-

contractual representations and/or material omissions, if any; (2) their purported reliance, if any, on

those representations and/or omissions; (3) the extent of their knowledge relating to the air bag

system, including the OCS, in the subject vehicle; and/or (4) the damages, if any, arising from the

Defendants’ alleged acts or omissions, prior to and at the time of executing the subject sales

contracts; will be case specific and, thus, will require a case by case inquiry.

The same is true with respect to the putative class members’ use and maintenance of their

respective vehicles, as well as the circumstances, if any, under which they and/or related or unrelated

occupants of the right front passenger seat allegedly experienced the “defect” that forms the basis for

the Plaintiffs’ Complaint (i.e., the “intermittent flashing” of the airbag activation or de-activation

light on the vehicle dashboard). The latter experiential differences are particularly critical in the

instant case, since there is indisputable evidence that there are numerous circumstances under which

the subject OCS operates as designed (i.e., in compliance with FMVSS 208) and still suppresses the

right front passenger seat airbag, either due to conduct of the passenger or because the stature

and/or position of the right front occupant is such that the presentation of an airbag in a

collision event could itself subject the occupant to a risk of serious personal injury or death.

See Pearson Affidavit at pp. 4-6, ¶¶ 12-16. See also Benedict Affidavit at pp. 8 and 9, ¶¶ 22-25.

Indeed, aside from the fact that each member of the prospective class purchased or leased a

2007 Lexus ES 350, there is almost no legal or factual commonality between their claims.


17

The lack of “commonality” is even more pronounced with respect to the putative class

members’ FDUPTA claim, since, almost by definition, those claims are predicated on allegations of

fraud, which are unique to each of the putative class members. Specifically, in order to prevail on

their FDUPTA claims, each class member will be required to establish: (1) the nature and content of

the Defendants’ oral and written representations, including advertising and marketing materials; (2)

that, through those representations, advertisements, and marketing materials, the Defendants engaged

in an “unfair” and “deceptive” trade practice; (3) reliance on those representations and/or marketing

materials; and (4) actual damage as a direct and proximate result of the allegedly deceptive

practice(s). Such claims simply cannot and do not satisfy the commonality requirement of Rule

23(a)(2). See, e.g., Casper v. Cunard Line, Ltd., 560 F. Supp. 240 (E.D. Pa. 1983)(refusing to certify

a class comprised of passengers who allegedly were fraudulently induced to book passage on a ship,

because the alleged oral and written representations varied from passenger to passenger, as did the

passengers’ reliance and damages). See also Broussard v. Meineke Discount Muffler Shops, Inc., 155

F.3d 331 (4th Cir. 1998)(denying class certification where rights of putative class members arose out

of fraudulent representations that likely would vary widely between class members and would be

dependent on the individual class members’ reliance on those representations). Accordingly, this

Court must deny Plaintiffs’ Motion.

Plaintiffs’ Claims Also Are Not “Typical” Of The Experiences, If Any, Of Other Putative Class Members, As Required Rule 23(a)(3)

Rule 23(a)(3) expressly provides that, in order to maintain a class action, a class

representative must prove that his claims or defenses are “typical of the claims or defenses of the

class.” Id. The purpose of this so-called “typicality” requirement, which, differs from “commonality”

in that it focuses on the named class representative’s individual characteristics in comparison to the

proposed class,” is to ensure that the advancement of the interests of the class representative(s) also


18

will advance the class members’ interests.” Jones, 250 F.R.D. at 693. Stated otherwise, to satisfy

the “typicality” requirement of Rule 23(a)(3), “a class representative must possess the same interest

and suffer the same injury as the [putative] class members.” Id. (cases cited therein). In the absence

of such proof, federal courts, including courts in the Southern District of Florida, repeatedly have

refused to certify classes in cases involving alleged defects in consumer products. See, e.g., In re:

Canon Cameras Litigation, 237 F.R.D. 357, 359 (S.D.N.Y. 2006). See also Dennis v. Whirlpool

Corp., Case No. 06-80784-CIV-RYSKAMP/VITUNAC (S.D. Fla. March 13, 2007)(Order Granting

[Defendant’s] Motion to Dismiss [or, in the Alternative, to Strike Class Allegations).9

In Dennis, for example, two purchasers of a KitchenAid refrigerator filed a class action

complaint against the manufacturer (Whirlpool), based on what they alleged to be a defect in the side

wall of the interior lining of the refrigerator, which purportedly manifested itself in a “series of

hairline cracks and splits in the side wall.” Id. at p. 2. Plaintiffs further alleged that the defect

“created a dangerous condition,” which, among other things: (1) “provid[ed] a place for mold and

other foreign elements to grow;” (2) “reduced the effectiveness and performance of the refrigerator;”

and (3) caused at least one of the plaintiffs to incur repair costs. Id. at pp. 3 and 4. Whirlpool moved

to dismiss or strike the plaintiffs’ complaint and class allegations and, in support thereof, submitted

service data and affidavits demonstrating that the overwhelming majority of refrigerator owners had

not reported or needed a service call relating to problems with the subject inner liner, let alone

experienced problems similar to those alleged by the plaintiffs. To the contrary, the service data

established that “only about .31% of all [such] KitchenAid refrigerators sold in the United States . . .

had needed a service call relating to cracking of the cavity liner” and that, among that “tiny

percentage of owners,” each had requested and/or received “a variety of warranty remedies.” Id. at

9 A copy of Judge Ryskamp’s March 13, 2007 “Order Granting [Defendant’s] Motion to Dismiss [or, in the Alternative, to Strike Class Allegations]” is attached hereto as Exhibit I.


19

p. 5. Based, in part, on that record evidence, the district court held that the plaintiffs had not satisfied

their burden of establishing “typicality” and granted the motion to dismiss or strike the class

allegations. In doing so, the Court noted that “[c]lass certification is entirely inappropriate given the

rarity of the alleged problem.” Id. at p. 6 (citing In re: Canon, 237 F.R.D. at 360).

Significantly, the case on which the Dennis Court relied to support its dismissal of the class

allegations (i.e., In re: Canon) involved a similar effort by plaintiffs to transform a de minimis

number of consumer complaints into a class action. In that case, the plaintiffs sought to certify a

class that included all purchasers of thirteen (13) makes and models of the defendant manufacturer’s

digital cameras. In their complaint, plaintiffs alleged that the cameras had numerous “technological

and physical defects” and that, “despite having knowledge of those defects, [the defendant] failed to

inform the public of their existence,” in breach of various warranties and in violation of New York’s

deceptive trade practices act. The plaintiffs filed a motion for class certification and the district court

denied the motion. In reaching its decision, the Court emphasized that, according to the record

evidence, only “a tiny fraction of the cameras in issue [i.e., two tenths of one percent] [had been

reported to have] malfunctioned for any reason.” Id. at 359. The court went on to hold that:

where the portion of the proposed class that even suffered malfunctions appears to be tiny, plaintiffs’ proposal to certify the class of all camera owners, then determine which few suffered malfunctions, and then determine which few of those even arguably can attribute the malfunctions to the design defect here alleged, would render the class action device nothing more than a façade for conducting a small number of highly individualized cases.

Id. at 360 (cases cited therein). See also Dennis at p. 6 (citing In re: Canon with approval).

Likewise, while Plaintiffs would have this Court believe that their claims are “typical” of the

class they seek to represent (i.e., all Floridians who have purchased or leased a 2007 Lexus ES 350),

the record evidence refutes that contention. See Motion at pp. 10 and 11, supra. (where, in

highlighting the inadequacy of Plaintiffs’ class definition, Defendants detail the myriad of ways in


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which Plaintiffs’ claims are not “typical” of the class they seek to represent). In fact, in his Affidavit,

Lance Lewis makes it clear that, while a total of 13,337 2007 Lexus ES 350’s have been sold and/or

leased in the State of Florida, to date, only fourteen (14) of those purchasers and/or lessees (or

approximately 0.1% of the total) have called or written the Lexus call center to express concern

about and/or seek assistance regarding their vehicle’s OCS. See Lewis Affidavit at p. 3, ¶ 9.

Moreover, absent a vehicle by vehicle inspection and individualized discovery relating to each front

seat occupant and whether each was properly positioned, Defendants have no way of knowing

whether, among the very small number of consumers who have expressed concern, any concerns

were related to the alleged “defect” that forms the basis for Plaintiffs’ Complaint. Accordingly,

Plaintiffs’ cannot meet their burden of proving “typicality” under Rule 23(a)(3) and their Motion

should be denied.

Arnold Rosen Has Irreconcilable Conflicts Of Interest Which Prevent Him From Protecting The Interests Of Other Putative Class Members

It is axiomatic that Fed. R. Civ. P. 23(a)(4) permits movants for class certification to serve as

a class representative “only if . . . [they] will fairly and adequately protect the interests of the class.”

Federal courts, in turn, have construed this requirement as disqualifying a plaintiff from serving as a

class representative, where their interests directly conflict with the interests of those they seek to

represent (i.e., the other members of the putative class). See, e.g., In Re Terazosin Hydrochloride

Antitrust Litigation, 223 F.R.D. 666, 673 (S.D. Fla. 2004)(fundamental conflict exists where “the

named representatives cannot ‘vigorously prosecute the interests of the class . . . because their

interests are actually or potentially antagonistic to, or in conflict with, the interests and objectives of

other class members”). See also Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280 (11th Cir.

2000)(“class action cannot be certified when its members have opposing interests or when it consists

of members who benefit from the same acts alleged to be harmful to other members of the class”); St.


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Louis Chiropractic v. Federal Ins. Co., 2008 WL 4056225 (D.N.J. 2008)(refusing to certify a class,

in part, because plaintiff, who was obligated to submit its claim to binding arbitration, could not

properly appear before the Court, let alone adequately represent an entire class of insureds and

medical providers, within the meaning of Fed. R. Civ. P. 23(a)(4)). Not surprisingly, Plaintiffs treat

Rule 23(a)(4)’s mandatory requirements almost as an afterthought. The truth is, however, it is

difficult to conceive of a conflict that is any more direct and dispositive than that which Mr. Rosen

has with his fellow “class mates,” namely that, by virtue of the Lease Agreements he executed in

acquiring his 2007 Lexus ES 350’s, he is contractually obligated to pursue binding arbitration and

has voluntarily abdicated any rights he otherwise may have had to participate as a party in a class

action. See Composite Exhibit H. See also Note 5 at p. 10, supra. This fact, together with Mr.

Rosen’s status as a lessee, which, for the reasons outlined on pages 10 and 11, supra., place him in

direct conflict with the lessors and owners he purports to represent, render him an “inadequate” class

representative, within the meaning of Rule 23(a)(4), as a matter of law.

Plaintiffs Cannot Satisfy Rule 23(b)(3), Because Individualized Issues Predominate Over Common Issues And A Class Action Is Not A Superior Method For Adjudicating This

Controversy Even if Plaintiffs could satisfy the requirements of Rule 23(a), which, for the reasons set

forth above, they cannot, this Court would be required to deny their Motion, because Plaintiffs have

not met their burden, under Rule 23(b)(3), to demonstrate that “issues which are subject to

generalized proof predominate over issues that require individualized proof.” Powers v. Government

Employees Ins. Co., 192 F.R.D. 313, 318 (S.D. Fla. 1998)(citing Jackson v. Motel 6 Multipurpose,

Inc., 130 F.3d 999, 1005 (11th Cir. 1997)). See also Jones, 250 F.R.D. at 694 (Rule 23(b)(3)’s

predominance requirement is “far more demanding” than Rule 23(a)(2)’s commonality requirement);


22

Israel v. Avis Rent-A-Car Systems, Inc., 185 F.R.D. 372 (S.D. Fla. 1999), rev’d on other grounds,

211 F.3d 1228 (11th Cir. 2000)(same).

Rule 23(b)(3) also requires a movant to demonstrate that a class action is “superior to other

available methods for the fair and efficient adjudication of the controversy.” Id. The purpose of this

requirement is to afford a means of vindication for groups of people who individually would be

without effective strength to bring their opponents into court at all. See, e.g., Amchem Products, Inc.,

521 U.S. at 617. Thus, in determining the issue of “superiority,” a district court should consider,

among other things: (1) the putative class members’ interest in prosecuting and controlling their own

actions; (2) the extent and nature of other litigation already filed by prospective class members; (3)

the desirability of focusing the litigation in a particular forum; and (4) the difficulties likely to be

encountered in managing the prospective class action. Fed. R. Civ. P. 23(b)(3).10

A number of federal courts, including courts in the Southern District of Florida, have relied

on the foregoing principles to refuse to certify classes, particularly where, as here, issues central to

the putative class members’ liability and damage claims would require highly individualized fact-

finding (i.e., “mini-trials”) that are the antithesis of the underlying rationale for class certification.

See, e.g., In re: Canon Cameras Litigation, 237 F.R.D. at 359; Dennis, Case No. 06-80784-CIV-

RYSCAMP; Montgomery v. The New Piper Aircraft, 209 F.R.D. 221 (S.D. Fla. 2002). See also

Partain v. First Nat’l Bank, 59 F.R.D. 56, 59 (M.D. Ala. 1973)(predominance requirement assists a

10 In an effort to bolster their claim of “superiority,” Plaintiffs actually contend that the alleged defect is “latent” and that, as a result, “there may well be class members who do not yet know that [the OCS in their 2007 Lexus ES 350 is not properly “classifying” occupants in the right front passenger seat].” Plaintiffs’ Motion at p. 28. Such a contention borders on the spurious. Indeed, it is hard to imagine the alleged “defect” being any more obvious, given that: (a) there is an indicator light prominently displayed in the center of the vehicle’s dashboard alerting the driver and the right front passenger as to whether each of their air bags are “ON” or “OFF”; and (b) there are four (4) pages in the Owner’s Manual dedicated to explaining how the OCS works (i.e., what the indicator light means, who should expect to “receive” an air bag, and the factors that can affect the engagement of the air bag system). See Owner’s Manual at pp. 70 through 74. See also Full page ad taken out by Plaintiffs’ counsel in the June 26, 2007 Ft. Lauderdale Sun Sentinel attached hereto as Exhibit J. Thus, the Court can reasonably conclude that 2007 Lexus ES 350 owners are well aware of and would have reported any purported concerns with the OCS in their vehicles.


23

district court in determining “whether the individual questions in a case are so overwhelming as to

destroy the utility of the class action”).

In Montgomery, for example, current and former owners of the Malibu Mirage, a single

engine aircraft manufactured by Piper, filed a multi-count class action complaint against Piper and

Textron/Lycoming, the manufacturer of the aircraft’s TIO-540-AE2A engine (“Subject Engine”). In

that complaint, which included claims for breach of warranty, violations of FDUPTA and claims for

equitable relief, the plaintiffs alleged that they had suffered economic damages, including diminution

in the value of their aircraft, by virtue of representations made by the defendants, in various

documents, to the effect that the Subject Engine would “operate [for] 2000 service hours before

requiring an overhaul,” when, in fact, a number of the plaintiffs’ engines allegedly required overhaul

long before the expiration of that period, as a result of “abnormal crankshaft [and connecting rod]

bearing wear.” Plaintiffs, in turn, moved to certify a nationwide class of “[a]ll current and former

owners of Malibu Mirage [Aircraft] equipped with [the Subject Engine] from 1987 to the present.

The Magistrate recommended denial of that motion and the district court adopted that

recommendation as its own. 209 F.R.D. at 221.

In reaching its decision, the Court focused on several dispositive factors. First, the Court

held that there were “intra-class conflicts” (see pp. 10 and 11, supra.) between current and former

Mirage owners, which made it impossible for plaintiffs to satisfy the requirements of Rule

23(a)(4)(i.e., that the class representative be capable of fairly and adequately protecting the interests

of the class). Id. at 226. Specifically, the Court noted that class members who had sold their aircraft

during the class period would be looking to recover the diminution in value that they purportedly

experienced as a result of the alleged defect, while putative class members who had purchased their

aircraft in the secondary market during the class period would have to prove that they did not benefit


24

from the diminution in value (i.e., that they paid full price notwithstanding the sellers’ alleged

diminution in value claim), thereby making their claims “inherently antagonistic.” Id.

Second, the Court emphasized that class certification was improper, as a matter of law,

because “individualized factual inquiries” relating to causation and damages far outweighed the

relatively few “common” issues raised by the class members’ claims, in direct contravention of Rule

23(b)(3). Id. at 229. Those inquiries included, but were not limited to: (1) the claimants’ exposure to

and reliance on the “alleged misrepresentations regarding the [Subject Aircraft’s] ability to reach

2000 hours service time before overhaul,” as well as the content of those representations; (2) whether

those representations and/or the alleged defects in the Subject Engine and/or Subject Aircraft caused

injury to the claimants, as required by FDUTPA; (3) the “quantum of damages [if any] suffered by

each of the putative class members;” and (4) whether the alleged “market value depletion” was

wholly attributable to the defendants’ allegedly deceptive trade practices or the myriad of other usage

and maintenance considerations that typically factor into the valuation of an aircraft. Id. at 230

(wherein the Court flatly states that “[t]he individualized inquiries regarding causation and damages

would be overwhelming and would require numerous mini-trials on both issues”).

This Court reached a similar result in Jones v. Jeld-Wen, Inc., 250 F.R.D. 685 (S.D. Fla.

2008). In that case, Florida consumers of wood doors and windows, which incorporated “hurricane

resistant” laminated-glass, filed a statewide class action complaint against the manufacturer and

retailer of those products (and others), based on the defendants’ alleged breach of various express

and implied warranties and their purported violations of FDUPTA. Specifically, the plaintiffs

alleged that the glass products, which were warranted to last for a period of at least ten (10) years,

were “delaminating and discoloring” prematurely, due to alleged defects in the resin used to bond the

glass together, which, in turn, decreased the efficiency and performance of the glass products. 250


25

F.R.D. at 688. Plaintiffs further alleged that, at or sometime after the sale of the subject products, the

defendants knew or should have known that the glass products were not suitable for use in their

homes, but failed to disclose those defects to the plaintiffs and/or to take affirmative steps to fully

compensate the plaintiffs for all damages arising from the defects. Id. at 691. Plaintiffs then filed a

motion seeking to certify a class of “all persons and entities in the State of Florida who purchased

[the] impact resistant windows and/or glass doors and [who] had not been offered replacement

[products].” Id.

This Court denied plaintiffs’ motion. The Court began its analysis by noting that the class

definition proffered by the homeowners was, arguably, deficient, in that, among other things, it was

not expressly limited to persons whose doors and windows necessarily contained the allegedly

defective resin and, therefore, in itself, potentially created a need to conduct individualized inquiries

simply for the purpose of determining whether a claimant was an appropriate class member. Id. at

692. The Court then shifted its focus to the requirements of Rule 23(b)(3) and concluded that the

plaintiffs had not met their burden of demonstrating that the common issues of law and fact

“predominate[d] over the individualized questions” raised by their complaint, nor could they

establish that class relief was a “superior” method for addressing the individual homeowners’ claims.

Id. at pp. 695 and 696. Specifically, the Court held that, among other things, the jury would have to

determine “whether defective resin was a legal cause of the [homeowners’] damages for each pane of

glass, on a house by house basis.” Id. at 695. The Court emphasized that “the need to determine the

causation on an individualized basis precluded the ability to maintain the . . . case as a class action.”

Id. Finally, the Court noted that plaintiffs could not demonstrate that class consideration was a

“superior” method of resolving the homeowners’ claims, because: (1) the “claims at issue [did] not

involve a de minimis sum, [such] that an individual plaintiff would be discouraged from filing his


26

own suit;” and (2) there were likely to be “great difficulties” in managing the case as a class action,

based on the predominance of individual issues. Id. at pp. 695 and 696.

Moreover, at least two (2) Florida appellate courts have relied on the same principles (i.e., the

state law equivalent of Rule 23(b)(3)) in denying motions for class certification brought by

purchasers, who, like the Plaintiffs in the instant case, claimed that an alleged defect diminished the

value of their automobiles. See, e.g., Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133 (Fla. 3d DCA

2008)(refusing to certify a class comprised of all Florida purchasers and lessees of 1999-2001 Kia

Sephias, who claimed that a design defect in the vehicles’ braking system caused premature wear of

the front brakes and created a risk of injury, based, in part, on its finding that proof of the causation

and damage elements of their FDUPTA and breach of warranty claims would require a highly

individualized inquiry).11 See also Volkswagen of Am., Inc. v. Sugarman, 909 So. 2d 923, 924 (Fla.

3d DCA 2005)(holding that Florida consumers of 1999-2002 Volkswagen Jettas were not entitled to

prosecute, as a class action, claims arising out of an alleged design defect in the vehicles’ front

bumper assembly, because the “key element of causation” would require individualized inquiry (i.e.,

“mini-trials”) into each accident that caused the defect to manifest itself and, in doing so, “defeat the

purpose of a class action”).

The record evidence, in the instant case, is even more compelling than the evidence which

the courts in Jones, Montgomery, Kia Motors and Volkswagen deemed sufficient to mandate the

denial of motions for class certification, based on a lack of predominance and superiority. Like the

purchasers/lessees in those cases, Plaintiffs can only prevail on their breach of warranty and

11 Those factors included: “(1) whether the purchaser had knowledge of the alleged brake defect and purchased the vehicle despite such knowledge; (2) whether a deficiency attributable to Kia manifested itself;” (3) whether an individual vehicle suffered diminished value as a result of the alleged deficiency; and/or (4) whether the brake wear and other brake related problems experienced by the putative class member was attributable to a defect or “environmental factors,” including “weather or road conditions, the presence of foreign objects in the braking system, the failure of parts other than the [brakes] . . . or individual driving habits”). Id. at 1140.


27

FDUPTA claims by pleading and proving, among other things, causation and damages. In deciding

whether the Plaintiffs have met their burden of proof with respect to those issues, however, the

finder-of-fact will have to conduct a plethora of highly individualized mini-trials to determine,

among other things: (1) whether each putative class member has experienced the alleged “defect” in

their vehicle (i.e., whether their OCS is properly “classifying,” by stature and position, occupants of

the right front passenger seat to determine if they would benefit from or likely be injured by the

deployment of an airbag in a collision event); (2) whether the alleged failure of the OCS to properly

“classify” the stature and position of a right front seat occupant is attributable, not to any alleged

“defect” in the system, but rather to some act or omission on the part of the vehicle owner and/or

occupant; (3) whether what the putative class member perceives as a “design defect” is, in fact, a by-

product of the system acting properly (i.e., in conformance with FMVSS 208) by ensuring that an

airbag is suppressed in the presence of a right front passenger seat occupant who is not of proper

stature and/or is out of position, so as to avoid creating a risk or serious personal injury or death from

deployment of the airbag itself; (4) whether there has been an actual, as opposed to a hypothetical,

“diminution-in-value” to each putative class member’s vehicle(s), which is causally related to an

alleged “defect” in the OCS;12 and (5) whether the “diminution-in-value,” if any, of each putative

12 As is too often the case in Plaintiffs’ Motion, the mere fact that Plaintiffs assert, without any supporting record evidence, that there has been a “diminution in the value” of their vehicles attributable to the OCS does not make it true, any more than there unsubstantiated allegations of “defect” render the 2007 Lexus ES 350 defective. Indeed, as in the case of their defect allegations, the factual record conclusively demonstrates quite the opposite (i.e., there is not a scintilla of evidence to support the contention that the 2007 Lexus ES 350 has experienced any diminution-in- value in the marketplace). To the contrary, as evidenced by the Affidavit of Roger McCarthy, dated October 13, 2008 (“McCarthy Affidavit”), attached hereto as Exhibit K, Plaintiffs and other purchasers of the 2007 Lexus ES 350 actually received more value for their investment than most, if not all, of those who purchased vehicles in the same class. In fact, an analysis of the actual market data reveals, among other things, that: (1) the rate of decline in value of the 2007 Lexus ES 350 was less than all other competitive vehicles in its class, including the two other Lexus products with which it “competes” (i.e., the Lexus IS 250 and IS 350); and (2) as of September 8, 2008, the retail value of the Lexus ES 350, as a percentage of the manufacturer’s suggested retail price, is third behind only its two Lexus brethren and first among all other competitors in its class . Id. at Figures 3 through 6. In fact, based on his examination of “the most widely used data sources on vehicle value,” Dr. McCarthy unequivocally states that “[he] cannot find any empirical evidence that supports Plaintiffs’ claim that the 2007 ES 350 has


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class member’s vehicle is attributable to factors wholly unrelated to any alleged “defect” in the OCS

(e.g., normal wear and tear, mechanical problems, prior damage to the subject vehicle, mileage,

failure to properly maintain and/or repair the subject vehicle, the presence or absence of various

accessories, etc.).

Apparently cognizant of the numerous deficiencies in proof, which, standing alone or taken

together, are fatal to their ability to satisfy the requirements of Rule 23(b)(3), Plaintiffs also seek

refuge in Rule 23(b)(2). However, their reliance on that Rule as an alternative basis for relief is

similarly misplaced for several reasons. First, Plaintiffs have not pled their intention to rely on Rule

23(b)(2) in their Complaint. Instead, the only portions of Rule 23 which they pled are subparts (1)

and (3). See Complaint at p. 8, Par. 29. Accordingly, Plaintiffs should not be permitted to inject a

new theory of or basis for relief into the case, for the first time, in their Motion for Class

Certification. Second, despite their conclusory assertion to the contrary, Plaintiffs’ claims do not fall

within the narrow subset of cases to which Rule 23(b)(2) applies. See Plaintiffs’ Motion at p. 19

(wherein Plaintiffs, citing Leszczynski v. Allianz Ins. Co., 176 F.R.D. 659 (S.D. Fla. 1997), admit, as

they must, that Rule 23(b)(2) is only available to litigants, whose demands for money damages are

“ancillary” to their claims for declaratory and injunctive relief). See also Plaintiffs’ Motion at p. 18

(wherein Plaintiffs boldly, but disingenuously, assert that “although [they have] alleged causes of

action for breach of warranty and violation of FDUPTA, the primary remedies [they] seek are

declaratory and injunctive”). In fact, of the seven (7) categories of remedies set forth on page 4 of

their Complaint at least six (6) (and arguably all seven (7)) contemplate some form of monetary

compensation to the Plaintiffs (e.g., a refund of the purchase price, reimbursement of the lease

payments, repair of the vehicles at no cost to the Plaintiffs, awards for the alleged diminution in

suffered vehicle impairment as a result of an alleged defect. Quite the opposite. This vehicle has held its value in a superior manner.” Id. at ¶ 23 (emphasis added).


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value, loss of value and/or loss of use of the vehicle, reimbursement of all costs incurred by the

Plaintiffs in connection with the vehicles and, lest we forget, an award of attorney’s fees and costs

under FDUPTA).

Moreover, as if the foregoing were not sufficient to dispel the notion that the predominate

relief sought by the Plaintiffs is money damages, the Court need not look beyond the following

additional indicia found in Plaintiffs’ Complaint: (1) in describing the “Nature of the Case,” Plaintiffs

plainly state that “[t]his is a claim under [FDUPTA] and for other causes of action;” (2) Plaintiffs

make it clear that, even to the extent that they purportedly are seeking “equitable relief,” in addition

to money damages, all of those remedies are tied to and ostensibly “aris[e] out of [D]efendants’

violation of [FDUPTA];” (3) of the 20 Counts in Plaintiffs’ Complaint only 5 purport to be for some

form of equitable relief and none of those even begin to allege the elements necessary to prove such a

claim; and (4) although Plaintiffs assert, in a conclusory fashion, a “demand” for mandatory

injunctive relief in the ad damnum clause tacked on to the end of their Complaint (a unique and

rarely implemented equitable remedy, the elements of which, again, are not pled in the body of the

Complaint), much of the “injunctive” relief they seek is either a direct or indirect form of monetary

damages (e.g., extending existing warranties, refunding the purchase price, reimbursing Plaintiffs for

any repair costs they may have incurred relating to the OCS, refunding the lease payments (in the

case of those who leased their vehicle), awarding “restitution,” awarding “compensatory damages,”

and awarding attorney’s fees and costs).13 Complaint at pp. 1, 4, 29 and 30.

13 Finally, as a purely legal matter, equitable relief in the form of either a “mandatory” injunction and/or a declaratory judgment are wholly unavailable to the Plaintiffs, because, among other things: (1) their alleged “injuries,” if any, are not “irreparable” (i.e., they can readily be “undone through an award of damages”); and (2) declaratory relief is inappropriate where, as in the instant case, the parties’ rights and obligations are the subject of bargained for agreements. Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983)(“an injury is ‘irreparable’ only if it cannot be undone through monetary remedies”); Jacksonville Elec. v. Beemik Builders, 487 So. 2d 372 (Fla. 1st DCA 1986)(injunctive relief seldom is appropriate in a contract action, because money damages ordinarily are available). See also Rollins, Inc. v. Butland, 951 So. 2d 860, 882(Fla. 2d DCA 2006)(certification of a class, under state equivalent to Rule 23(b)(2)(i.e., Fla. R. Civ. P. 1.220(b)(2)), was improper, where, as in the instant case, “the


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CONCLUSION

Based on the foregoing arguments and authorities, the Defendants, TOYOTA MOTOR

SALES U.S.A., INC., LEXUS U.S.A., JM AUTO, INC. d/b/a JM LEXUS, SOUTHEAST TOYOTA

DISTRIBUTORS L.L.C., and JM FAMILY ENTERPRISES, INC., respectfully request that this

Court deny Plaintiffs’ Motion for Class Certification and that it grant Defendants any and all such

further relief to which they are entitled.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing Memorandum of Law

in Opposition to Plaintiffs’ Motion for Class Certification was filed electronically and sent, via

regular mail, to: Jonathan R. Gdansky, Esq. and Scott P. Schlesinger, Esq., SHELDON J.

SCHLESINGER, P.A., Attorneys for Plaintiffs, 1212 South East Third Avenue, Fort Lauderdale, FL

33316 this 13th day of October, 2008.

SEIPP & FLICK, LLP Attorneys for Defendants s/DONALD A. BLACKWELL John C. Seipp, Jr. (FB#289264) Donald A. Blackwell (FB#370967) Two Alhambra Plaza, Suite 800 Miami, Florida 33134-5214 (305) 995-5600 (telephone) (305) 995-6090 (facsimile)

only function served by the claim for declaratory and injunctive relief … is to lay a legal foundation for the recovery of money damages… [i.e., where] the injunctive relief requested would be little more than an overture to the damages opera”).


Toyoto's Opp to Class Cert

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Transcript of Toyoto's Opp to Class Cert