Putting Cart Before Horse in a Consumer Class Action?

 Normally in litigation, even in one of America’s notorious Judicial Hellholes®, someone who has suffered a personal injury retains a lawyer to file a lawsuit after the injury occurs. But the possibility that the proverbial cart was put before the horse in one food-related class action inspired a federal court to recently deny certification to a class of purportedly injured iced tea purchasers.

The suit is similar to those discussed in a past Legal Pulse post, “Food Advertising Class Action Feeding Frenzy“: one consumer, Laura Coyle, claimed that she and thousands of other iced tea drinkers were deceived into purchasing tea which tea makers/defendants Hornell Brewing and AriZona Beverage labelled as “all natural.” The teas weren’t all natural, she alleged, because they contain the nefarious sugar replacement “high fructose corn syrup.”

What’s particularly noteworthy about this suit, however, is that Ms. Coyle signed a retainer agreement with a plaintiffs’ lawyer on August 9, 2007.  In her complaint, filed on April 21, 2008, Ms. Coyle related that she had purchased (or had been deceived into purchasing) the offending tea on March 30, 2008, seven months after she retained her lawyer. She referred to that date four other times in the course of pre-trial proceedings. Finally, several months after she cited the March 2008 date in a deposition, Ms. Coyle sent the court a signed declaration stating that she had misspoken, and meant to say March 2007.

The defendants moved to oppose class certification under federal Rule 23 on the grounds that due to the “confusion” surrounding when the injury occurred, Ms. Coyle was not an adequate class representative. On May 26, 2011, federal Judge Jerome Simandle agreed, and denied class certification. Sean Wajert at Mass Tort Defense blog has an excellent assessment of that ruling.

Ms. Coyle and her lawyer urged Judge Simandle to reconsider his ruling. His August 30 decision reaffirmed Ms. Coyle’s inadequacy as a class representative. The court didn’t pass judgment on whether the March 2008 date was intentionally or mistakenly stated as the date of “injury.” Because of the “credibility concern” the controversy created, and because Ms. Coyle’s credibility could become a distracting focus of the suit (“a show-stopper for this class,” said the judge), Ms. Coyle could not fairly represent other “injured” parties. Certainly, if she in fact purchased the tea after hiring a lawyer, she did so for the purposes of devising an injury, and thus she wasn’t “injured” in the legal sense.

Ms. Coyle’s lawyer, on the other hand, won a moral victory of sorts on the issue of whether class certification should be denied due to inadequate counsel. Judge Simandle accepted the lawyer’s explanation that his client unintentionally misstated the date on which she purchased the iced tea. The judge concluded he would not deny class certification based on inadequate counsel. Conceivably, the lawyer can now find another “deceived” tea drinker who is more certain about when he or she bought the tea than was Ms. Coyle to be a class representative.

Class action litigation has earned its reputation as a lawyer-driven industry, one whose leading players seem more motivated by fees and activist causes than client service. Judge Simandle gave Ms. Cohen and her lawyer the benefit of the doubt in Cohen v. Hornell Brewing. Given the nature of the lawsuit – a consumer class action which advances the larger cause of “fighting obesity” – we can’t blame anyone for being a bit more skeptical.

One thought on “Putting Cart Before Horse in a Consumer Class Action?

  1. Pingback: Mixed Outcome in “Natural” Consumer Class Action Food Case « The Legal Pulse

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