Class Actions and the Ninth Circuit: Different Consumer Contracts Defeat Predominance

The Ninth Circuit’s Feb. 3 decision in Berger v. Home Depot shows courts are scrutinizing the specific elements of the causes of action for which plaintiffs seek class treatment, partners John P. Phillips and Sean D. Unger and associate Christopher M. Mooney say in this BNA Insight. The authors analyze the Unfair Competition Law case, and contend discrepancies in contract terms will make courts wary of finding the type of ‘‘extensive and long-term fraudulent advertising campaign’’ sufficient to create a rebuttable presumption of classwide reliance.

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