Volvo Asks for Reconsideration of Six-State Class Action

Citing a recent U.S. Supreme Court decision, Volvo has filed a motion requesting that a judge for the U.S. New Jersey District Court, Newark division, reconsider certification of a six-state class action over an alleged sunroof defect.

In March, Judge Dennis Cavanaugh granted plaintiffs’ motion for certification of statewide classes in Massachusetts, Florida, Hawaii, New Jersey, California and Maryland.

“In doing so, the court rejected Volvo’s argument that certification of plaintiffs’ statewide classes was improper because, among other reason, plaintiffs had offered no proof that class-wide damaged could be proved with common evidence,” Volvo’s attorneys argue in the motion.

“Rather, the court relied on the allegations of the second-amended complaint to conclude that the relief sought by the plaintiffs applies to all members of the certified classes. The day after this court granted certification, the United States Supreme Court issued its opinion in Comcast Corp. versus Behrend. Comcast makes clear that the court’s decision to certify a class without any showing that damages can be proved on a class-wide basis was error. The court should reconsider and reverse its decision because it is directly contrary to Comcast,” the attorneys write.

“… The Supreme Court reversed and held that Rule 23(b)(3)’s predominance requirement is not satisfied where the plaintiff fails to establish with admissible evidence that damages can be measured on a class-wide basis,” attorneys continue.
In response to the motion, plaintiffs’ attorneys argue, “Both the majority and dissenting opinions in Comcast agreed that the decision turned ‘on the straightforward application of class-certification principles and breaks no new ground on the standard for certifying a class under Federal Rule of Civil Procedure (23(b)(3).’

“The straightforward holdings from Comcast are that (a) the antitrust damages model advanced by the plaintiffs’ expert was flawed because it purported to calculate damages based on four antitrust impact theories in a case where only one such theory was viable, and (b) it was erroneous to prevent the defendant from challenging this model at the class certification stage on the basis that these arguments could overlap with the merits,” attorneys wrote.

“This unremarkable decision hardly supports Volvo here. … And, of course, the damages in this straightforward defective consumer product case are fundamentally different from the complicated antitrust injuries that the Comcast plaintiffs’ expert attempted to calculate using a flawed methodology,” the plaintiffs’ attorneys continued.

At press time, the court has yet to issue a decision on Volvo’s motion for reconsideration.

The original suit was filed in 2010 in the United States District Court for the District of New Jersey by Joanne Neale of Needham, Mass., and seven other owners.

The plaintiffs contend the “defect” sunroofs are on Volvo’s S40, S60, S80, V50 (model years 2004 to present), XC90 (model years 2003 to present) and V50 (model years 2005 to present).

“Plaintiffs allege that the sunroof drainage systems in these vehicles harbored a defect which allows water to become entrapped within the passenger compartment floorplans, causing damage to the vehicles, including interior components, carpets and safety-related electrical sensors and wiring,” according to the court documents.

“Plaintiffs further allege that Volvo had longstanding knowledge of a material design defect, based on plaintiffs’ assertion that numerous consumer complaints existed as well as internal Volvo communications and Technical Service Bulletins issued by Volvo in an unsuccessful attempt to address the problem,” the document continues.

Plaintiffs listed in the lawsuit represent each of the states in which the judge granted approval for class action.

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