Has Florida Supreme Court Rejected Wal-Mart v. Dukes Class Certification Analysis?

by E. Colin Thompson and J. Trumon Phillips

The Florida Supreme Court has issued a decision that plaintiffs' lawyers will surely argue makes certification of class actions easier in Florida state courts than in federal and other state courts.

In its per curiam decision entered in Soper v. Tire Kingdom, Inc., the Florida Supreme Court seemingly rejected the stricter standard for establishing the "commonality" element of the class action rule as announced by the United States Supreme Court in its landmark 2011 Wal-Mart v. Dukes decision.

The three-sentence majority decision issued in Tire Kingdom, however, leaves wide margin for interpretation.

The Florida Supreme Court's Tire Kingdom decision quashed a Florida Third District Court of Appeal's decision that had reversed a Miami-Dade trial court's order certifying a class based, in part, on a lack of commonality. The Florida Supreme Court issued its short decision without giving the parties an opportunity to brief the merits. The decision summarily states that the Third District's decision is in "express and direct conflict" with the Florida Supreme Court's decision in Sosa v. Safeway Premium Finance Co. Sosa was issued one day after the Third District's Tire Kingdom decision, and seventeen days after Wal-Mart. Both the Third District's decision in Tire Kingdom and the Florida Supreme Court's decision in Sosa contain lengthy discussions of the commonality element.

The Third District held in Tire Kingdom that the trial court erred in finding the commonality element satisfied. In so holding, the Third District cited Wal-Mart for the proposition that "[a]n incantation of ultimate legal issues, however variously and creatively they might be couched, does not suffice to meet the commonality element of our class action rule."  It also quoted the Wal-Mart Court's conclusion that "[w]hat matters to class certification . . . is the capacity of a class[-]wide proceeding to generate common answers apt to drive the resolution of litigation." 

In contrast, in Sosa the Florida Supreme Court did not discuss, or even mention, the United States Supreme Court's decision in Wal-Mart. Rather, in reinstating the trial court's finding that the commonality element was met, the court repeated the statement often included in pre-Wal-Mart class certification decisions that "[t]he threshold of the commonality requirement is not high" and that "[t]he primary concern in the consideration of commonality is whether the representative's claim arises from the same practice or course of conduct that gave rise to the remaining claims and whether the claims are based on the same legal theory." 

Plaintiffs' lawyers attempting to certify a class under the Florida Rules of Civil Procedure will undoubtedly point to the Wal-Mart-based commonality analysis applied by the Third District as the "express and direct conflict" with the Florida Supreme Court's decision in Sosa. They will argue that a less rigorous, pre-Wal-Mart commonality analysis is the law of the land in Florida.

As a result, any defendant faced with a class action filed in a Florida state court should strongly consider whether a basis exists to remove the case to federal court, where the Wal-Mart commonality analysis must be applied. If removal is not an option, or there are strategic reasons to remain in Florida state court, the dearth of analytical specificity in the Florida Supreme Court's Tire Kingdom decision leaves room to argue that the commonality analysis applied is not the "direct and express" conflict to which the court was referring. Furthermore, Sosa and Wal-Mart may be factually distinguished so as to harmonize their rulings and keep Florida in the post-Wal-Mart era.

Lexis.com subscribers can access enhanced versions of the opinions cited in this article:

Soper v. Tire Kingdom, Inc., 2013 Fla. LEXIS 89 (Fla. 2013)

Wal-Mart v. Dukes, 2011 U.S. LEXIS 4567 (U.S. 2011)

Sosa v. Safeway Premium Finance Co., 2011 Fla. LEXIS 1574 (Fla. 2011)

For more information about this decision and its effect on your business, please contact E. Colin Thompson or Trumon Phillips.

This information is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. DLA Piper is not responsible for any actions taken or not taken on the basis of this information.

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