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Donald Falk is becoming California’s class action killer. He was part of the Mayer Brown team that litigated AT&T Mobility v. Concepcion, which culminated last year in a bombshell U.S. Supreme Court ruling on class action arbitration. And now Falk has obtained a ruling from the U.S. Court of Appeals for the Ninth Circuit that will pose fresh challenges for nationwide class actions, particularly those brought under California law. On Thursday a Ninth Circuit panel ruled 2-1 to decertify a nationwide false advertising class against Falk’s client, American Honda Motor Co., saying that California’s consumer protection law is too different from those in other states to permit class litigation. “The automobile sales at issue in this case took place within 44 different jurisdictions, and each state has a strong interest in applying its own consumer protection laws to those transactions,” Judge Ronald Gould wrote in Mazza v. American Honda Motor. Los Angeles federal district court judge Valerie Baker Fairbank had previously ruled that no other state had “an interest in denying its citizens recovery under California’s potentially more comprehensive consumer protection laws,” according to Gould’s opinion. But Gould disagreed, saying that Fairbank had abused her discretion. “Maximizing consumer and business welfare, and achieving the correct balance for society, does not inexorably favor greater consumer protection,” he wrote. “Instead, setting a baseline of corporate liability for consumer harm requires balancing the competing interests.” Falk, who argued the case, said American Honda’s policy was not to comment on pending litigation. Co-counsel Roy Brisbois of Lewis Brisbois Bisgaard & Smith also declined to comment. Plaintiff counsel at Los Angeles’ Initiative Legal Group and San Francico’s Ram, Olson, Cereghino & Kopczynski could not immediately be reached for comment. William Stern, who litigates consumer class actions at Morrison & Foerster but was not involved in this case, said the ruling will help reverse a trend of plaintiffs bringing class actions that can’t get certified in other states to California. “Mazza says you can’t do that, at least when you have facts like these,” Stern said. The case was originally filed in 2007 by plaintiffs who bought Acura automobiles in Florida and Maryland. They claimed that one of the attractions for them was Acura’s “collision mitigation braking system,” which Acura advertised as warning drivers when they draw too close to other vehicles and then automatically braking if an imminent collision is sensed. (Acura is Honda’s luxury car unit.) The plaintiffs contended that the warning and braking systems — part of a $4,000 technology package — could overlap with each other and did not always perform effectively, particularly in bad weather. They sued in California, where American Honda is headquartered and where the car’s advertisements were created. The Ninth Circuit had put the case on hold pending Dukes v. Walmart, the 2011 U.S. Supreme Court case that decertified a nationwide employment class action because the sprawling potential class of more than 1 million employees did not meet Rule 23′s commonality requirement. Dukes did not figure prominently in the text of Gould’s opinion. In fact, Gould held that the plaintiffs had met the Rule 23 requirement under Dukes. But perhaps emboldened by the spirit of Dukes and AT&T Mobility, Gould wrote in sweeping language that the differences in state consumer protection laws could not be reconciled. “Getting the optimal balance between protecting consumers and attracting foreign businesses, with resulting increase in commerce and jobs, is not so much a policy decision committed to our federal appellate court, or to particular district courts within our circuit, as it is a decision properly to be made by the legislatures and courts of each state,” he wrote. Gould also said that common questions of fact did not predominate under California’s Unfair Competition Law, because Honda’s advertising campaign was not pervasive enough to presume all consumers relied on it. Judge Dorothy Nelson said in her dissent that the majority holding “will prove devastating to consumers.” She added, “Without certification of a nationwide class to which California law applies, Honda becomes free to avail itself of the benefits offered by California without having to answer to allegations by consumers nationwide that it has violated the consumer protection laws of its forum state.”

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