Standard Petroleum Co. v. Faugno Acquisition, LLC
Standard Petroleum Co. v. Faugno Acquisition, LLC
Opinion of the Court
**43*154Standard Petroleum Company, the counterclaim defendant and the defendant, respectively, in the two cases that comprise this consolidated action (defendant), appeals from the trial court's orders certifying class actions against it. The class actions are premised on allegations that the defendant overcharged service station operators and franchisees for gasoline products.
The record reveals the following facts, assumed to be true by the trial court for purposes of the certification issues or otherwise undisputed, and procedural history. Kennynick, LLC, and Faugno Acquisition, LLC
**44(Faugno)
Shortly thereafter, the defendant commenced a separate action against one of the plaintiffs, Faugno, alleging breach of contract.
In 2015, after the plaintiffs had obtained compliance with discovery requests, they moved for orders certifying the action as a class action pursuant to Practice Book § 9-9.
The trial court thereafter issued a memorandum of decision setting forth that articulation, which we explore in fuller detail later in this opinion. In that decision, the trial court noted that the plaintiffs had identified at least eighty-one of the defendant's gasoline customers during the relevant time period as potential members of the proposed class: forty-four had supply contracts with the defendant and thirty-seven had purchased gasoline on an as invoiced basis. With regard to those with written contracts, there were four subclasses with varied arrangements, but all contracts contained an identical provision stating that the "prices include taxes ... which [the defendant] may be required to collect or pay pursuant to any present or future laws ...." The court pointed to the fact that all of the potential class members had received invoices from the defendant. The court noted that the plaintiffs had reviewed "a 'substantial sampling' of the more than **4714,000 invoices produced by [the defendant] in discovery" and had represented that "the invoices appear to be almost identical to the invoices that the [plaintiffs] received for payment." The court addressed separately each requirement for class certification under Practice Book § 9-7, concluding that each had been satisfied. Largely in reliance on the facts and legal issues cited in that analysis, the court also concluded that each of the policy considerations under Practice Book § 9-8 weighed in favor of allowing the action to proceed as a class action.
The defendant appealed from the orders certifying the class. See footnote 1 of this opinion. After the court issued its memorandum of decision, the defendant did not seek any further articulation.
On appeal, the defendant contends that the trial court abused its discretion in granting class certification because it failed to apply the requisite "rigorous analysis" to each class certification requirement. Instead, the defendant contends, the trial court merely required " 'some showing' " to support each requirement, engaged in a "cursory review of the claims and evidence," and disregarded certain evidence, elements, and defenses. We conclude that, in light of the claims and arguments advanced to the trial court, its grant of class certification was not an abuse of discretion.
I
Given the nature of the defendant's claims, a discussion of the applicable standards that guide our review takes on heightened significance. Therefore, clarifying certain aspects of these standards must be our starting point.
"[T]he rules of practice set forth a two step process for trial courts to follow in determining whether an action or claim qualifies for class action status. First, **48a court must ascertain whether the four prerequisites to a class action, as specified in Practice Book § 9-7, are satisfied. These prerequisites are: (1) numerosity-that the class is too numerous to make joinder of all members feasible; (2) commonality-that the members have similar claims of law and fact; (3) typicality-that the [representative] plaintiffs' claims are typical of the claims of the class; and (4) adequacy of representation-that the interests of the class are protected adequately....
"Second, if the foregoing criteria are satisfied, the court then must evaluate whether the certification requirements of Practice Book § 9-8 [3] are satisfied.
*157These requirements are: (1) predominance-that questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) superiority-that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." (Internal quotation marks omitted.) Neighborhood Builders, Inc. v. Madison ,
It is the class action proponent's burden to prove that all of the requirements have been met. Id., at 656-57,
We have not previously articulated with any specificity what a "rigorous analysis" by the trial court necessarily entails. Although some of the defendant's specific concerns are addressed in the sections that follow, there are certain overarching parameters that can be gleaned from the case law and other authoritative sources. "[A] 'rigorous analysis' ordinarily involves looking beyond the allegations of the plaintiff's complaint. The rigorous-analysis requirement means that a class is not maintainable merely because the complaint parrots the legal requirements of the class-action rule....
"In applying the criteria for certification of a class action, the [trial] court must take the substantive allegations in the complaint as true, and consider the remaining pleadings, discovery, including interrogatory answers, relevant documents, and depositions, and any other pertinent evidence in a light favorable to the plaintiff. However, a trial court is not required to accept as true bare assertions in the complaint that class-certification prerequisites were met.... Class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." (Footnotes omitted.) 59 Am. Jur. 2d 542-43, Parties § 89 (2012); accord Comcast Corp. v. Behrend ,
Consequently, a rigorous analysis "frequently entail[s] overlap with the merits of the plaintiff's underlying claim." (Internal quotation marks omitted.) Comcast Corp. v. Behrend , supra,
"Although no party has a right to proceed via the class mechanism ... doubts regarding the propriety of class certification should be resolved in favor of certification." (Internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc. , supra,
Having clarified the standards that govern the trial court's class certification decision, we note that the standards that govern our review of that decision are well settled. "We apply an abuse of discretion standard both [to] the lower court's ultimate determination on certification of a class as well as to its rulings that the individual [class certification] requirements have been met.... While our review of the legal standards applied by the [trial] court and the court's other legal conclusions is de novo ... the [trial] court's application of those standards to the facts of the case is again reviewed only for abuse of discretion .... This standard means that the [trial] court is empowered to make a decision-of its choosing-that falls within a range of permissible decisions, and we will only find abuse when the [trial] court's decision rests on an error of law ... or a clearly erroneous factual finding, or ... its decision ... cannot be located within the range of permissible decisions."
With this legal backdrop in mind, we turn to the defendant's claims.
II
Although a secondary argument by the defendant, we first dispose of the defendant's broad contention that the trial court's grant of class certification is improper under all of the prerequisites found in Practice Book § 9-7 : numerosity; commonality; typicality; and adequacy of representation.
A
As noted previously, the requirement in Practice Book § 9-7 (1) is met where "the class is so numerous **53that joinder of all members is impracticable ...." The defendant appears to contend that the trial court should have excluded from the certified class those customers who have arbitration or jury waiver clauses in their contracts. It contends that these customers either will be barred from participating in the action by these clauses or will be subjected to a stay of proceedings while the defendant's motions to compel arbitration are litigated.
The defendant's contention fails for two reasons. First, we agree with the trial court that it was "premature for the court to decide on a motion for class certification whether such contractual provisions are enforceable." See In re Titanium Dioxide Antitrust Litigation ,
Second, the trial court concluded that, even if the defendant was correct as to this ground, there would still be sufficient remaining members to which these provisions would not apply to satisfy the numerosity requirement. The defendant's failure to contest this conclusion is fatal to any challenge to numerosity.
B
As best we can discern from the defendant's brief, there is no specific argument directed at Practice Book § 9-7 (2), which requires that "there are questions of law or fact common to the class ...." Perhaps this omission can be explained by the settled principle that commonality "is easily satisfied because there need only be one question common to the class ... the resolution of which will advance the litigation." (Internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc. , supra,
C
Typicality, the third prerequisite under Practice Book § 9-7, is met where "the claims or defenses of the representative parties are typical of the claims or defenses of the class ...." The defendant contends that one half of the potential class is subject to oral agreements, not written contracts and, therefore, are entitled to pursue only an unjust enrichment claim and not a breach of contract claim.
Moreover, as the trial court properly observed, it is permissible to allege alternative claims for breach of contract and unjust enrichment. See Naples v. Keystone Building & Development Corp. ,
D
Adequacy of representation, the fourth prerequisite under Practice Book § 9-7, requires that "the representative parties will fairly and adequately protect the interests of the class." The defendant claims that the interests of the plaintiffs as class representatives are not aligned with those of the other potential class members because the plaintiffs are former customers, and ostensibly **57former franchisees, whereas many other potential class members are current customers or franchisees.
We are aware that many federal district court decisions, particularly of an older vintage, take the view that a conflict of interest renders former customers/franchisees per se inadequate representatives of current customers/franchisees.
*162These cases generally reason that the former's lack of a stake in the continued success of the defendant's business gives rise to the possibility of over vigorous representation, involving the pursuit of relief that will impair the business or impeding settlement. See, e.g., Southern Snack Foods, Inc. v. J & J Snack Foods Corp. ,
Accordingly, none of the defendant's contentions persuades us that the trial court abused its discretion in concluding that the class certification requirements of Practice Book § 9-7 were met.
III
We turn next to the defendant's claim that the trial court abused its discretion in determining that the predominance and superiority requirements of Practice Book § 9-8 (3) had been met. We address each in turn.
**60A
The defendant contends that the trial court's predominance analysis most clearly demonstrates the court's failure to apply a rigorous analysis. The defendant asserts that the court performed only a cursory review of the claims and evidence in relation to the elements of the causes of action and disregarded its special defenses and uncontroverted evidence. The defendant claims that the trial court incorrectly "concluded and repeatedly emphasized that once the class members make a threshold showing ... that they met the class definition, then proof of membership in the class will be substantially determinative of the elements of their claims ...." We conclude that the trial court's analysis was sufficiently rigorous and that its conclusion that the predominance requirement was met was not an abuse of discretion.
"[C]lass-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof....
"In order to determine whether common questions predominate, [a court must] ... examine the [causes] of action asserted in the complaint on behalf of the putative class.... Whether an issue predominates can only be determined after considering what value the resolution of the class-wide issue will have in each class member's underlying cause of action.... Common issues of fact and law predominate if they ha[ve] a direct impact on every class member's effort to establish liability and on every class member's entitlement *164to ... relief.... [When], after adjudication of the [class-wide] issues, [the] plaintiffs must still introduce a great deal of individualized proof or argue a number **61of individualized legal points to establish most or all of the elements of their individual[ized] claims, such claims are not suitable for class certification ....
"[When] cases [involve] individualized damages ... [and those] damages can be computed according to some formula, statistical analysis, or other easy or essentially mechanical methods, the fact that damages must be calculated on an individual basis is no impediment to class certification.... It is primarily when there are significant individualized questions going to liability that the need for individualized assessments of damages is enough to preclude [class] certification....
"These standards inform us that a court should engage in a three part inquiry to determine whether common questions of law or fact predominate in any given case. First, the court should review the elements of the causes of action that the plaintiffs seek to assert on behalf of the putative class.... Second, the court should determine whether generalized evidence could be offered to prove those elements on a class-wide basis or whether individualized proof will be needed to establish each class member's entitlement to monetary or injunctive relief.... Third, the court should weigh the common issues that are subject to generalized proof against the issues requiring individualized proof in order to determine which predominate.... Only when common questions of law or fact will be the object of most of the efforts of the litigants and the court will the predominance test be satisfied." (Emphasis omitted; internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co. ,
**62Petroleo Brasileiro S.A.-Petrobras v. UniversitiesSuperannuation Scheme Ltd. ,
In the present case, the trial court's memorandum of decision set forth legal principles consistent with the preceding discussion. The court acknowledged the three part inquiry required for predominance. In separate sections, the court set forth the elements of each of the six causes of action alleged by the plaintiffs: (1) breach of contract; (2) unjust enrichment; (3) violation of the Connecticut Petroleum Franchise Act; (4) violation of CUTPA; (5) violation of the Uniform Commercial Code; and (6) misrepresentation. With respect to each action, it addressed whether generalized or individualized evidence would be required to prove the claim. Finally, it stated its ultimate conclusion that common issues predominate as to each cause of action.
The defendant's claims focus on the court's approach to the second part of the predominance inquiry. Insofar as the defendant essentially argues that the court's analysis under Practice Book § 9-8 failed to require the plaintiffs to do more than establish their satisfaction with Practice Book § 9-7 ("threshold inquiry"), we are compelled to point out that the trial court's findings under § 9-7 well exceeded those required. It is altogether proper, therefore, that those findings would inform the court's analysis under § 9-8. See In re Target Corp. Customer Data Security Breach Litigation ,
In its analysis of the requirements of Practice Book § 9-8, the second prong of the court's predominance analysis can be summarized as follows. With regard to each cause of action, the trial court essentially found that the threshold showing for class membership-the purchase of gasoline from the defendant during the relevant period-left common questions largely determinative of each of the causes of action, namely, whether the defendant (1) charged class members for federal gasoline tax at an incorrect rate because it did not give them the benefit of the federal tax credit, and (2) properly charged the state gross receipts tax on gasoline as delivered. Thus, for example, in considering **64the bad faith element of a violation of the relevant provision of the Uniform Commercial Code, the court concluded that this element depended on those same common questions.
The court acknowledged that certain causes of action required additional elements that would not be subject to common proof. For example, the court found that the counts alleging a violation of the Connecticut Petroleum Franchise Act and a violation of CUTPA required an initial determination-that the potential class member is a franchisee of the defendant or suffered an ascertainable loss, respectively-but that the aforementioned threshold showing and common questions would then be applicable to prove the remaining elements of each such cause. With respect to the CUTPA violation, the court indicated that the individualized loss could be determined by a common mathematical equation. Ultimately, the trial court determined that common issues of fact and law predominated with respect to proof of the elements of each of the claims.
Our review of the trial court's analysis confirms the defendant's contention that the court did not expressly address whether every element of every cause of action would require individualized proof. However, we are not persuaded that these omissions render its decision less than the rigorous analysis called for or otherwise an abuse of discretion. The trial *166court is required to articulate a conclusion as to each requirement of the class certification rule, in this case, that common issues predominate. See 59 Am. Jur. 2d, supra, § 89, p. 543 (rigorous analysis "does not require the court to assign weight to any of the criteria listed, or to make written findings as to each factor, but merely requires the court to weigh and consider the factors and come to a reasoned conclusion as to whether a class action should be permitted for a fair adjudication of the controversy"); see also **65In re Hydrogen Peroxide Antitrust Litigation , supra,
We can glean a reasoned basis for the trial court's conclusion. The certified class consists "of all entities or persons who: (i) purchased gasoline from [the defendant] during the period September 27, 2004, to date; (ii) were charged federal gasoline tax at a rate of 18.4 cents per gallon on such gasoline purchases; (iii) did not receive the federal volumetric ethanol excise tax credit, while it was in effect, on such gasoline purchases; and (iv) were charged state gross receipts tax **67on such gasoline purchases based on the price of gasoline, as delivered." Under that class definition, proof of class membership establishes that the defendant and the class member had some form of agreement for the sale and purchase of gasoline. Qualifying under the class definition requires significant proof, but, notably, proof arising from common sources. Specifically, we agree with the trial court that whether an entity or person qualifies under this definition appears to be provable by way of invoices and contractual information gleaned from the defendant's records, which is class-wide, undisputed evidence. See Artie's Auto Body, Inc. v. Hartford Fire Ins. Co. , supra,
Having concluded that the trial court's decision, on its face, appears to have reached a reasoned conclusion, we turn to specific concerns raised by the defendant with regard to that decision. With respect to the count alleging breach of contract, the defendant contends that the elements of performance and breach require individualized proof.
With respect to the count alleging a violation of the Connecticut Petroleum Franchise Act, the defendant asserts that the trial court incorrectly determined that common proof could "establish a franchise relationship and a right to recovery under the franchise provisions."
**69
With regard to the count alleging misrepresentation, the defendant contends that this claim must be proved by individualized oral conversations between the defendant and each customer. The plaintiffs' claim, as we understand it, however, is not that the defendant made **70oral misrepresentations regarding the federal and state tax charges at issue, but, rather, that the invoices reflecting those charges misrepresented the actual taxes imposed by law, causing the injury alleged. Even if we assume direct conversations occurred between the defendant and individual customers, nothing in the evidence presented thus far indicates that those customers were provided with different information on the taxes assessed in their invoices. *169Instead, the uniformity in the charges recorded by the invoices presented to the trial court provides no basis to infer that discussions on these taxes would not have been substantially uniform as well. Thus, the trial court's conclusion as to this count was not an abuse of discretion.
In a more broadly applicable attack, the defendant also argues that damages calculations will require individualized proof, particularly for lost profit damages. The defendant disregards the fact, however, that the plaintiffs eliminated their request for lost profit damages when they amended their pleadings. Although the absence of a request for such relief may result in some class members exercising their right to opt out of the class and, in turn, impact the class' ability to satisfy numerosity, that issue is one that the trial court may revisit if, and when, it arises. See Collins v. Anthem Health Plans, Inc. , supra,
**71Finally, the defendant claims that it has or will assert special defenses that require individualized proof, which the trial court failed to address and which will predominate over the common issues. We are not persuaded that this omission was fatal under the circumstances.
Although "the existence of a defense potentially implicating different class members differently does not necessarily defeat class certification ... it is ... well established that courts must consider potential defenses in assessing the predominance requirement ...." (Citations omitted; emphasis in original.) Myers v. Hertz Corp. , supra,
With regard to the effect of defenses on the propriety of class certification, there does not appear to be a uniform view as to whether the defendant should bear the burden of production while the plaintiff retains the ultimate burden of persuasion as to class requirements, or whether the plaintiff should bear the burden of both.
**72*170We need not resolve this issue in the present case. At the very least, the defendant would have to provide the plaintiffs with a sufficient basis to be able to address how a defense might bear on class certification requirements. The defendant did not do so. Each of the special defenses states a summary legal conclusion, lacking any supporting facts or indication as to which counts they are directed. As such, they would not even meet our fact pleading requirements for special defenses as set forth in Practice Book § 10-50. See Fidelity Bank v. Krenisky ,
The defendant's memorandum of law in opposition to class certification does not illuminate these matters. The lone reference to special defenses in the predominance section of that memorandum makes the following broad, tentative statement in its discussion of the breach of contract claim: "Moreover, because [forty-three of the] putative class members had no written contracts, [the defendant's] special defenses may apply to them differently, depending on the facts and circumstances of each agreement to purchase motor fuel, each class member's understanding of the prices charged by [the defendant], and whether and when each class member came to believe that [the defendant's] pricing breached the parties' agreement." An appended footnote cites eight doctrines alleged as special defenses: "waiver; unclean hands; failure to mitigate damage[s]; breach of the covenant of good faith and fair dealing; estoppel; mutual mistake; unilateral mistake; and laches ...."
*171The defendant's position effectively would impose the burden on the plaintiffs to prove whether each conclusory defense includes common issues and/or are subject to common proof as to whichever counts they conceivably might be relevant. We are aware of no **74authority that supports such a proposition, and we squarely reject it.
In sum, the trial court's ultimate determination that predominance was met was not an abuse of discretion.
B
Superiority, the second prerequisite under Practice Book § 9-8 (3), is "intertwined" with the predominance requirement. See Collins v. Anthem Health Plans, Inc. , supra,
Insofar as the defendant cites the absence of any other previously filed lawsuit regarding the alleged **75overcharges as significant, the defendant's point is unclear. It assumes that the potential damages are substantial enough to incentivize individual lawsuits but also argues that the absence of prior lawsuits suggests that an inconsequential number of lawsuits would be filed if class certification was not granted.
The defendant's additional argument, in effect, contends that the totality of the trial court's purportedly improper rulings regarding the other class action requirements evidences why a class action is not the superior mechanism to resolve this issue. In light of our prior determinations that the trial court's conclusions were not an abuse of discretion, no further response is required.
The orders granting class certification are affirmed.
In this opinion the other justices concurred.
The defendant appealed from the class certification orders to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Although an order granting class certification is usually not immediately appealable, because certain counts alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., General Statutes § 42-110h authorizes an immediate appeal on the class certification orders as to those counts. Because the remaining counts are "inextricably intertwined" with the CUTPA counts, the trial court's orders granting class certification as to those counts also may be reviewed. See Collins v. Anthem Health Plans, Inc. ,
The trial court certified identical classes in each of the actions by separate decisions. For convenience, we refer to both classes as the class.
Faugno is now known as Woodway Texaco, LLC.
Kennynick, LLC, and Faugno are the plaintiffs in the first action filed, the appeal of which is Docket No. SC 19875. Kennynick, LLC, and Faugno also are the counterclaim plaintiffs in the second action filed, the appeal of which is Docket No. SC 19874. See footnote 6 of this opinion. Faugno is the named defendant in the second action. Because the class certification issues arise from their designations as plaintiffs, we refer to Kennynick, LLC, and Faugno as the plaintiffs in this opinion.
The tax credit at issue was the volumetric ethanol excise tax credit (federal tax credit). The federal tax credit reduced the federal tax on gasoline that includes ten percent alcohol, which is the gasoline/alcohol mixture used in Connecticut. The federal tax credit reduced the tax rate from 18.4 cents per gallon to 13.3 cents per gallon from January 1, 2005 through December 31, 2008, and to 13.9 cents per gallon from January 1, 2009 through December 31, 2011, when the federal tax credit expired. The plaintiffs alleged that the defendant improperly charged its customers at the original tax rate of 18.4 cents per gallon throughout the time the federal tax credit was in effect, denying them its benefit.
The plaintiffs filed amended complaints and counterclaims, which eliminated certain counts and requests for relief. For convenience, we limit our discussion to the operative amended pleadings and simply refer to them as the complaint and counterclaim. We note that, although both operative pleadings alleged violations of the Uniform Commercial Code under General Statutes §§ 42a-1-203 and 42a-2-103, the trial court expressly declined to address those sections because the plaintiffs did not refer to them in their motions for class certification. We presume that the alleged violations based on these sections have been abandoned.
The defendant also named as plaintiffs Gene A. Faugno III and Michael A. Faugno, Sr. Those individuals are not parties to the class action.
Because the two actions and the relevant filings are, for all intents and purposes, identical, for convenience, we refer to the consolidated actions as the action.
This was a renewed motion. A few months earlier, the trial court had issued orders granting the defendant's motions for a determination of denial of class certification and denying the plaintiffs' motions for class certification on the ground that the plaintiffs had failed to produce sufficient evidence to demonstrate numerosity. The trial court issued the orders without prejudice, citing the defendant's failure to comply with the plaintiffs' discovery requests. The trial court concurrently issued orders directing the defendant to comply with those requests.
"To illustrate ... using the example of numerosity, review of the factual finding as to the size of the proposed class would be for clear error, review of the judge's articulation of the legal standard governing numerosity would be de novo, and review of the ultimate ruling that applied the correct legal standard to the facts as found would be for abuse of discretion. Thus a ruling on numerosity, based on a finding of fact that is not clearly erroneous and with application of a legal standard that is correct, could be affirmed as within allowable discretion, in some circumstances, whether the ruling determined that this [class action rule] requirement was met or not met." In re Initial Public Offerings Securities Litigation , supra,
Three pages of the defendant's appellate brief are dedicated to its analysis of these four requirements, undifferentiated by reference to the particular requirement(s) to which the assertion is directed.
See In re Titanium Dioxide Antitrust Litigation , Docket No. 10-0318 (RDB),
Insofar as the defendant contends that the circumstances in which the agreements were made vary, requiring individualized proof, we note that it advances the same contention regarding the predominance requirement. We address this concern relating to the special defenses in our discussion of the predominance requirement in part III A of this opinion.
We also note that the defendant asserts that it has a $43,743.53 prejudgment remedy against Faugno, which creates a unique interest. The trial court reasonably rejected this argument because typicality does not require that the factual background be entirely identical between class representatives and the class at large. The defendant's brief appears to assert this same argument in the context of Faugno's suitability to be a class representative, contending that Faugno will be "distracted by its own unique issues." As this court has recognized, "[t]he adequacy-of-representation requirement tend[s] to merge with the commonality and typicality criteria ...." (Internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc. , supra,
Although the defendant makes these arguments in the section of its brief attacking the trial court's predominance analysis, which precedes its analysis of typicality, because our analysis follows the reverse sequence of the defendant's, and these arguments also relate to typicality, we address those arguments in this part of the opinion.
The trial court acknowledged this argument, and noted its disagreement with it, but did not set forth its reasons for doing so. The defendant did not seek an articulation. Because the defendant's position appears to advocate a per se rule, we reject it as a matter of law.
See, e.g., Auto Ventures, Inc. v. Moran , Docket No. 92-426-CIV,
This treatise also discusses the situation in the present case, whereby the class representative occupies a terminated or former relationship with the defendant and seeks to represent a class including persons with a present relationship for both damages and prospective injunctive relief. 1 A. Conte & H. Newberg, supra, § 3:35, pp. 494-98. The treatise notes that courts have taken varied approaches, some deeming the representation proper as long as the particular conflict is outweighed by the efficiencies that would flow from class certification. We infer from the trial court's rejection of the defendant's general argument that it concluded that the balance weighed in favor of such efficiencies. We observe that the injunctive relief sought in the present case effectively would direct the defendant not to continue the same actions that gave rise to the claims for damages, not to undertake other actions.
Although it is not always necessary to articulate the nature of proof required for each element of each cause of action, we note that it would be the better practice to do so to ensure a proper outcome and a sufficient record for appellate review.
As the trial court correctly stated, plaintiffs seeking to prove breach of contract "must prove that: (1) the defendant and the class member formed an agreement; (2) the class member performed under the agreement; (3) the defendant breached the agreement; and (4) the class member incurred damages ... caused by the breach ...." Collins v. Anthem Health Plans, Inc. , supra,
As the trial court correctly stated, General Statutes § 42-133l (f) of the Petroleum Franchise Act provides in relevant part: "No franchisor, directly or indirectly, through any officer, agent or employee, shall do any of the following ... (6) fail to deal in good faith with a franchisee; (7) sell, rent or offer to sell to a franchisee any product or service for more than a fair and reasonable price ... (9) discriminate between franchisees in the charges offered or made for royalties, goods, services ...." The first step to any such claim is a determination that a franchise relationship exists. Ackley v. Gulf Oil Corp. ,
We note that, in connection with its arguments relating to this count, the defendant appears to suggest that the trial court, on a finding that only one half of the potential class members could pursue this count, should have created subclasses, not a single class. This suggestion is insufficient to constitute an adequately briefed claim. Therefore, we decline to address it. See, e.g., Estate of Rock v. University of Connecticut ,
Compare 59 Am. Jur. 2d, supra, § 86, p. 537 ("[o]nce the proponent of the class has made a prima facie showing that the prerequisites of the class action statute or rule are met, the burden of producing evidence shifts to the opponent although the proponent retains the burden of persuasion"), and In re Kosmos Energy Ltd. Securities Litigation ,
Even on appeal, the defendant largely fails to adequately brief its claims regarding the special defenses. Its sole, marginally adequately briefed claim relates to its contention that the uniform charges invoiced to its customers were known and either negotiated, ratified, or waived by those customers and that, accordingly, proof as to what individual customers knew at what time would be required. However, although this defense may require some individualized evidence, some of the evidence necessary to evaluate this defense will come from common proof, namely, the defendant's invoices and records. For instance, the defendant's invoices, which apparently reflect identical charges for the federal and state taxes at issue, will presumably serve to demonstrate in part that the purported waiver or ratification occurred as they would reflect when information was known to customers at various points in time. Similarly relevant would be the written contracts for approximately one half of the proposed class, which apparently contain nearly identical provisions relating to taxes. Accordingly, there is no basis to conclude that the issues necessary to resolve such defenses would predominate over the overarching common issues in the action. See Brown v. Kelly ,
Reference
- Full Case Name
- STANDARD PETROLEUM COMPANY v. FAUGNO ACQUISITION, LLC Kennynick, LLC v. Standard Petroleum Company
- Cited By
- 8 cases
- Status
- Published