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Court Shoots Down Putative Class Asserting Novel Theories Of Market Share Liability And Failure To Warn
December 28, 2009 10:01 AM | Posted by Morande, Dean | Print this page
In Kelecseny v. Chevron, U.S.A., Inc., No. 08-61294-civ, 2009 WL 4262603 (S.D. Fla. Nov. 25, 2009), the plaintiff sought to certify a damages class and an injunctive relief class based on alleged damages resulting from the use of gasoline containing ethanol (so-called “E10”) in his boat.
In his damages class, the plaintiff relied on a market share theory of negligence, under which all gasoline makers who sell E10 in the state of Florida would be liable. The court determined that such a class fails almost all the Rule 23 factors, beginning with a finding that the class itself is not adequately ascertainable because the court would have to undertake individualized inquires as to whether the class members even used E10. Numerosity was not met for essentially the same reason.
On the typicality element, the court noted that it found no case in which market share liability had been applied in a class action. Applying that theory to an entire state—as the plaintiff sought here—was “untenable,” given that use of market share liability requires using the narrowest possible geographic market. The court also found problems with the predominance element based on individualized issues related to causation, comparative fault, and using the market share liability theory.
The plaintiff’s injunctive relief class, which sought that the gasoline makers be required to post warnings regarding the use of E10 in boats, fared no better. In reviewing Eleventh Circuit precedent, the court found it “impossible” for a class ever to be certified under a failure to warn scenario. According to the court, no plaintiff could have standing because, by the time of certification, he would necessarily be aware of the problem.
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