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Class Action Notices

Harris, et al. v. Wildwood Villages, LLC, et al.
Notice of Class Action (PDF)
Request for Exclusion from Class (PDF)
Class Certification Order (PDF)

Introduction

A class action lawsuit is one where a group of people with similar complaints jointly sue another party or parties. The group of people filing the lawsuit are often represented by one attorney or law firm, which is charged with safeguarding the interests of the class.

Lieser Skaff Alexander has been certified by a Florida Circuit Court to serve as class counsel.

Class action lawsuits are common in variety of situations, including:

  • Defective products that cause harm to its users or others, such as drugs, automobiles, medical devices, toys and other products.
  • Consumer fraud including the intentional misrepresentation of product features, financing processes, etc.
  • Securities fraud, such as when a financial organization systematically misrepresents an investment opportunity that benefits them and harms their clients.
  • Employment practice issues, including systematic discrimination based on gender, race, or other factors, unsafe work environments and workplace harassment.
  • Mismanagement of homeowners associations, condo associations, and other property management organizations, including the mismanagement or misappropriation of the monthly assessment fees, lack of property maintenance, abuse of power, and other issues.

Class action lawsuits follow different rules than a typical lawsuit, and it is important to hire a firm with specific experience in this area.

Rule 1.220

Florida Rule of Civil Procedure 1.220(a) sets forth the following prerequisites for class representation:

(1) The members of the class are so numerous that separate joinder of each member is impracticable;

(2) The claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class;

(3) The claim or defense of the representative party is typical of the claim or defense of each member of the class; and

(4) The representative party can fairly and adequately protect and represent the interests of each member of the class.

These requirements are commonly referred to as numerosity, commonality, typicality, and adequacy.[1]

Once the above prerequisites are satisfied, an action may be maintained on behalf of a class if the Court concludes one or more of the following under Florida Rule of Civil Procedure 1.220(b):

(1) The prosecution of separate claims or defenses by or against individual members of the class would create a risk of either:

(A)  Inconsistent or varying adjudications concerning individual members of the class, which would establish incompatible standards of conduct for the party opposing the class; or

(B)  Adjudications concerning individual members of the class, which would, as a practical matter, be dispositive of the interests of other members of the class who are not parties to the adjudications, or substantially impair or impede the ability of other members of the class who are not parties to the adjudications to protect their interests; or

(2) The party opposing the class has acted or refused to act on grounds generally applicable to all members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate; or

(3) The claim or defense is not maintainable under either (b)(1) or (b)(2), but the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy.

Florida Rule of Civil Procedure 1.220 directs the trial court to enter an order, at the request of any party, as to whether a claim can be maintained as a class action “[a]s soon as practicable after service of any pleading alleging the existence of a class . . . .”[2]  The party seeking class certification has the burden of pleading and proving the elements required by Florida Rule of Civil Procedure 1.220.[3]  In making such a determination, trial courts are required to conduct a “rigorous analysis” as to whether the case satisfies the criteria set by Florida Rule of Civil Procedure 1.220.[4]  Yet, because an order certifying a class “may be altered or amended at any time before the entry of a judgment on the merits,”[5] any doubts as to class certification should be resolved “in favor of certification, especially in the early stages of litigation.”[6]  Furthermore, as part of its initial determination, “a trial court may look beyond the pleadings and, without resolving disputed issues, determine how disputed issues might be addressed on a class-wide basis.”[7]

Standing

Under Florida law, standing is a threshold requirement for class certification.[8]  “To satisfy the standing requirement for a class action claim, the class representative must illustrate that a case or controversy exists between him or her and the defendant, and that this case or controversy will continue throughout the existence of the litigation.”[9]  In order to do so, the class representative must allege a legal or actual injury, which “includes an economic injury for which the relief will grant redress[,]” that is “distinct and palpable, not abstract or hypothetical.”[10]

Numerosity

The party “seeking class certification must demonstrate that the members of the class are so numerous that separate joinder of each member is impracticable.”[11]  Yet, “[n]o specific number and no precise count are needed to sustain the numerosity requirement.”[12]  Indeed, “members of the plaintiff class may be ascertained through discovery.”[13]  Still, while there is no magic number of class members that will support certification, classes of more than forty members are generally deemed to satisfy the numerosity requirement.[14]

“[C]lass certification is proper if the class representative does not base the projected class size on mere speculation.”[15]  The projected class size is not speculative when it can be determined by geographical and chronological boundaries.[16]  While not dispositive, it is generally sufficient if a reasonable class size estimate exceeds forty (40) putative class members.[17]  In determining whether the numerosity requirement is met, “the Court should consider the geographical dispersion of the class members, judicial economy, and the ease of identifying the members of the class and their addresses.”[18]  The court may also consider the financial resources of putative class members, their ability to file individual lawsuits and how granting prospective relief may affect future class members.[19]

Commonality: Are Questions of Law or Fact Raised by Class Plaintiffs Common to All Class Members?

The commonality requirement presents a low hurdle and “only requires that resolution of a class action affect all or a substantial number of the class members, and that the subject matter of the class action presents a question of common or general interest.”[20]  Commonality exists if the plaintiff’s claims arise from the same practice or course of conduct that gave rise to claims of the all class members, and the claims are based on the same legal theory.[21]  In short, a defendant’s standardized conduct towards class members is sufficient to satisfy commonality.[22]

A plaintiff also satisfies the commonality requirement “if the common or general interest of the class members is in the object of the action, the result sought, or the general question implicated in the action.”[23]  Furthermore, commonality “is satisfied if the questions linking the class members are substantially related to the resolution of the litigation, even if the individuals are not identically situated.”[24]  Indeed, “[a] mere factual difference between class members does not necessarily preclude satisfaction of the commonality requirement.”[25]  Likewise, “nuanced factual differences [as] to each individual damage determination . . . [does] not preclude a finding of commonality.”[26]  In addition, factual differences as to the applicable statutes of limitations among class members will not defeat a finding of commonality.[27]  Rather, “[t]here must be a common right of recovery based on the same essential facts.”[28]

Typicality: Are Class Plaintiffs’ Claims Against Defendant(s) Typical of the Claims Each Class Member has Against Defendant(s)?

The typicality requirement is not demanding and “focuses generally on the similarities between the class representative and the putative class members.”[29]  “The typicality requirement is satisfied if the claims or defenses of the class and class representative arise from the same event or pattern or practice and are based on the same theory.”[30]  Typicality also exists when “the class representative possesses the same legal interest and has endured the same legal injury as the class members.”[31]  A plaintiff can also satisfy the typicality requirement “when the claims of the class representative and class members are not antagonistic to one another.”[32]  On the other hand, “[m]ere factual differences between the class representative’s claims and the claims of class members will not defeat typicality.”[33]

Adequacy: Will Class Plaintiffs and Class Counsel Fairly and Adequately Protect and Represent the Class?

A determination as to whether the adequacy requirement is met involves a two-part inquiry: (1) whether class counsel has the ability to advocate effectively on behalf of the class, and (2) whether the class representatives’ interests are antagonistic to the interests of the class.[34]

“The first prong [of the adequacy requirement] concerns the qualifications, experience, and ability of class counsel to conduct the litigation.”[35]  In other words, the trial court must determine whether class counsel is “competent and experienced, [thus] giving them the ability to advocate effectively on behalf of [the named plaintiffs] and the putative class members.”[36]  In addition, the ability of class counsel to conduct the litigation includes class counsel’s “willingness to absorb the costs in prosecuting th[e] case as a class action.”[37]

To meet the adequacy requirement, “[a] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.”[38]  “[I]nherent in this rule is an expectation of a minimal level of interest in the action.”[39]  Yet, a class representative does not need a sophisticated understanding of the legal system or underlying legal theories.[40]  Rather, a class representative can provide adequate representation for the class with only a basic understanding of the facts that form the basis of the class action lawsuit.[41]

“The relevant inquiry is whether the plaintiffs maintain a sufficient interest in, and nexus with, the class so as to ensure vigorous representation.”[42]  Thus, the adequacy inquiry “serves to uncover conflicts of interest between the presumptive class representative and the class he or she seeks to represent.”[43]  A conflict of interest that will defeat class certification is one that is fundamental and goes to the specific issues in controversy.[44]  In contrast, a conflict of interest that is “merely speculative or hypothetical” will not bar class certification.[45]  A fundamental conflict exists where class members “have opposing interests or when [the class] consists of members who benefit from the same acts alleged to be harmful to other members of the class.”[46]

Satisfaction of the commonality and typicality requirements provides “strong evidence that [the named plaintiffs] adequately represent the class.”[47]  Additional proof that the named plaintiffs will adequately represent the class exists where the same relief is sought for the named plaintiffs and all class members.[48]  Likewise, when the named plaintiff is “willing and able to take an active role as class representative and advocate on behalf of all class members[, his] interests [are] not antagonistic to those of the rest of the class.”[49]

Florida Rule of Civil Procedure 1.220(b): Are the Class Plaintiffs’ Claims Maintainable on Behalf of a Class?

Again, in addition to satisfying “numerosity, commonality, typicality, and adequacy, a class must meet any of the three categories listed in subsection (b) of rule 1.220.”[50] 

1.220(b)(1): Would Prosecution of Separate Claims Create a Risk of Inconsistent or Varying Adjudications?

Class certification is appropriate under Florida Rule of Civil Procedure 1.220(b)(1) when “the prosecution of separate claims or defenses by or against individual members of the class would create a risk of either: (A) inconsistent or varying adjudications concerning individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications concerning individual members of the class which would, as a practical matter, be dispositive of the interests of other members of the class who are not parties to the adjudications, or substantially impair or impede the ability of other members of the class who are not parties to the adjudications to protect their interests.”[51]  Subsection (A) “is satisfied only if inconsistent judgments in separate suits would place the party opposing the class in the position of being unable to comply with one judgment without violating the terms of another judgment.”[52]

1.220(b)(2).  Is Defendant’s Conduct Applicable to All Class Members?

Class certification is appropriate under Florida Rule of Civil Procedure 1.220(b)(2) when the “party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making . . . declaratory relief concerning the class as a whole appropriate.”[53] 

1.220(b)(3): Do Common Questions of Law or Fact Predominate Over Individual Questions of Law or Fact? Is Class Representation the Superior Method for Adjudicating the Dispute?

Class certification is appropriate under Florida Rule of Civil Procedure 1.220(b)(3) when “the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy.”[54]  In determining whether to certify a class under Florida Rule of Civil Procedure 1.220(b)(3), the court must consider “all relevant facts and circumstances, including (A) the respective interests of each member of the class in individually controlling the prosecution of separate claims or defenses, (B) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated, (C) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted, and (D) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class.”[55]

The “predominance inquiry tests whether the proposed class is sufficiently cohesive to warrant adjudication by representation.”[56]  The predominance requirement is satisfied when a named plaintiff demonstrates that “if he or she, by proving his or her own individual case, necessarily proves the cases of the other class members.”[57]  Indeed, “Florida courts have held that common questions of fact predominate when the defendant acts toward the class members in a similar or common way.”

The purpose of the superiority requirement is to ensure that the “class action would achieve economies of time, effort, and expense, and promote uniformity of decisions as to persons similarly situated, without sacrificing procedural fairness.”[58]  In determining whether a class action is the superior method of adjudicating a controversy, the trial court should consider “(1) whether a class action would provide the class members with the only economically viable remedy; (2) whether there is a likelihood that the individual claims are large enough to justify the expense of separate litigation; and (3) whether a class action cause of action is manageable.”[59]  In addition, “the predominance analysis has a tremendous impact on the superiority analysis for the simple reason that, the more common issues predominate over individual issues, the more desirable a class action lawsuit will be as a vehicle for adjudicating the plaintiffs’ claims, both relative to other forms of litigation such as joinder or consolidation, and in absolute terms of manageability.”[60]

Individual claims of putative class or sub-class members can range from less than $300.00 to several thousand dollars depending on how long each putative class or sub-class member has owned a lot within the Subdivisions.[61] 

Conclusion

If you are a member of a group considering filing a class action lawsuit, the Tampa class action law firm of Lieser Skaff Alexander will be happy to evaluate your case. Lieser Skaff Alexander has a variety of class action experience. We have the systems in place to manage a large plaintiff pool, determine who is and is not an appropriate member of the group, and meet all requirements for a successful filing. Our attorneys understand the unique opportunities and challenges of class action and work with the group to achieve the best possible outcome.

[1] City of Tampa v. Addison, 979 So.2d 246, 251 (Fla. 2d DCA 2007).
[2] Fla. R. Civ. P. 1.220(d)(1) (2014).
[3] Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 265 (Fla. 5th DCA 2002).
[4] Miami Auto. Retail, Inc. v. Baldwin, 97 So.3d 846, 851 (Fla. 3d DCA 2012).
[5] Canal Ins. Co. v. Gibraltar Budget Plan, Inc., 41 So.3d 375, 377 (Fla. 4th DCA 2010).  Likewise, “trial courts are permitted to redefine a proposed class in a manner which will allow utilization of the class action.”  Id.  In addition, the trial court has discretion to divide the proposed class into subclasses.  Broin v. Philip Morris Companies, Inc., 641 So.2d 888, 891 (Fla. 3d 1994).
[6] Sosa v. Safeway Premium Finance Co., 73 So.3d 91, 105 (Fla. 2011).
[7] Id. at 117.
[8] Id. at 116.
[9] Id.
[10] Id. at 117.
[11] Campbell, 827 So.2d at 266.
[12] Sosa, 73 So.3d at 114.
[13] Frankel v. City of Miami Beach, 340 So.2d 463, 470 (Fla. 1976).
[14] Kuehn v. Cadle Co., Inc., 245 F.R.D. 545, 548 (M.D. Fla. 2007).  Note that, because Florida Rule of Civil Procedure 1.220 was modeled after Federal Rule of Civil Procedure 23, “Florida courts often look to federal cases for guidance as persuasive authority on issues regarding class actions.”  Barnhill v. Fla. Microsoft Anti-Trust Litigation, 905 So.2d 195, 198 (Fla. 3d DCA 2005).
[15] Sosa, 73 So.3d at 114.
[16] Id.
[17] Kuehn, 245 F.R.D. at 548.
[18] Id.
[19] Braun, 827 So.2d at 266.
[20] Sosa, 73 So.3d at 107.
[21] Sosa v. Safeway Premium Finance Co., 73 So. 3d 91, 114 (Fla. 2011); see also Olen Properties Corp. v. Moss, 981 So. 2d 515, 519 (Fla. 4th DCA 2008); Smith v. Glen Cove Apartments Condominiums Master Ass’n Inc., 847 So. 2d 1107, 1110 (Fla. 4th DCA 2003).
[22] Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998); see also Gen. Tele. Co. of Sw. v. Falcon, 457 U.S. 147, 159 (1982).
[23] Id.
[24] Id. at 108.
[25] Id. at 107.
[26] Id. at 108.
[27] Broin, 641 So.2d at 891.
[28] Id. at 890.
[29] Sosa, 73 So.3d at 114.
[30] Agan v. Katzman & Korr, P.A., 222 F.R.D. 692, 698 (S.D. Fla. 2004).
[31] Sosa, 73 So. 3d at 114.
[32] Id. at 114-15.
[33] Id. at 114.
[34] Id. at 115.
[35] Id.
[36] Id.
[37] Baldwin, 97 So.3d at 854.
[38] Addison, 979 So.2d at 253.
[39] Leibell v. Miami-Dade Cnty., 84 So.3d 1078, 1085 (Fla. 3d DCA 2012).
[40] Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 370 (1966).
[41] Alfred v. Okeelanta Corp., No. 89-8285-CIV-RYSKAMP, 1991 WL 177658, *14 (S.D. Fla. 1991).
[42] Roper v. Consurve, Inc., 578 F.2d 1106, 1112 (5th Cir. 1978).
[43] Sosa, 73 So.3d at 115.
[44] Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003).
[45] Henderson v. Thomas, 289 F.R.D. at 512.
[46] Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280 (11th Cir. 2000).
[47] Henderson, 289 F.R.D. at 511.
[48] Broin, 641 So.2d at 892.
[49] Sosa, 73 So.3d at 115.
[50] Baldwin, 97 So.3d at 852.
[51] Fla. R. Civ. P. 1.220(b)(1)
[52] Seven Hills, Inc. v. Bentley, 848 So.2d 345, 353 (Fla. 1st DCA 2003).
[53] Fla. R. Civ. P. 1.220(b)(2) (2014).
[54] Fla. R. Civ. P. 1.220(b)(3) (2014).
[55] Id.
[56] Chase Manhattan Mortg. Corp. v. Porcher, 898 So.2d 153, 157 (Fla. 4th DCA 2005).
[57] Sosa, 73 So.3d at 112.
[58] Braxton v. Farmer’s Ins. Group, 209 F.R.D. 654, 662 (N.D. Ala. 2002).
[59] Sosa, 73 So.3d at 116.  Yet, the final factor – manageability – is rarely a concern as “[e]ven potentially severe management issues have been held insufficient to defeat class certification.”  Klay v. Humana, Inc., 382 F.3d 1241, 1273 (11th Cir. 2004).
[60] Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Svcs., Inc., 601 F.3d 1159, 1184 (11th Cir. 2010).
[61] See Second Amended Complaint at ¶¶ 58-59.