Volvo Asks Appellate Court for Leave to Appeal

Volvo is seeking permission to appeal from the Third Circuit Court of Appeals after a New Jersey U.S. District Court judge denied the automaker’s motion to reconsider a six-state class-action certification. The plaintiffs in the lawsuit allege there is a defect in the automaker’s sunroofs, which allegedly allows water to flood their vehicles.

Plaintiffs’ attorneys claim, “Volvo now effectively seeks to re-litigate the class certification issue for a fourth time, this time by filing a petition for leave to pursue an interlocutory appeal under Fed. R. Civ. P. 23 (f).”

Volvo is seeking the appellate court’s permission for an appeal while the case is still ongoing in at the District Court level. The District Court has stayed discovery while awaiting the appellate court’s decision.

“While apparently unhappy with the District Court’s decisions, Volvo’s motion does not identify a single legal or factual error made by the court. Nor does it demonstrate that it has satisfied any of the criteria … that would make it appropriate for the court to grant such a rare Rule 23(f) interlocutory appeal,” plaintiffs’ attorneys claim.

Plaintiffs’ attorneys ask the court to deny Volvo’s petition for appeal.

In response, Volvo’s attorneys claim the District Court “did not conduct the required rigorous analysis” before certifying a class.

“Although Volvo does not dispute that the task before the District Court was large, unfortunately for Volvo and this [appellate] court, the order it self does not contain the analysis that plaintiffs imply the District Court conducted,” Volvo’s attorneys claim in court papers.

“Plaintiffs say that Volvo’s criticism of the District Court’s predominance analysis as cursory is ‘unpersuasive’ and ‘brash.’ It is the Supreme Court, however, not Volvo, that requires a class certification analysis to begin ‘with elements of the underlying cause of action,’” attorneys went on to claim.

In denying Volvo’s motion to reconsider the class-action lawsuit, the District Court judge issued an opinion that the sunroof case could not be compared to Comcast Corp. versus Behrend. Volvo’s attorneys argue for a reversal of this decision.

“Comcast requires reversal of the District Court’s certification order because the record contains no evidentiary proof of class-wide injury,” Volvo’s attorneys claim.

Moreover, the automaker’s attorneys claim the sunroof drainage component “functioned precisely, and for as long, as Volvo warranted it would.”

“Certifying classes full of uninjured members not only violates settled law and provides a windfall to the uninjured, it constitutes bad economic and social policy,” Volvo’s attorneys claim. “… For the foregoing reasons, this court should grant Volvo leave under Rule 23(f) to file an appeal from the District Court’s erroneous certification order.”

The appellate court had not issued a decision at press time.

The class action lawsuit covers Massachusetts, Florida, Hawaii, New Jersey, California and Maryland.

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.

The suit was filed in New Jersey U.S. District Court by Joanne Neale of Needham, Mass., and seven other owners.

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