According to this February 8, 2011 article from Lee Ann Schultz of the Twin Cities Daily Planet, the Minnesota legislature is considering a bill that, according to its sponsors, would curtail consumer class action litigation in the state. The bill, HF211, has three key provisions of interest, which would:
- limit private actions under three consumer protection statutes to actions filed by ”natural persons who purchase or lease goods, services, or real estate for personal, family, or household purposes”;
- require proof of personal loss of money in order to support a cause of action for damages under the consumer protection statutes; and
- make class certification orders immediately appealable and imposes an automatic stay of proceedings at the trial court while the appeal is pending.
All three measures are similar to class action reform measures passed or at least considered by various states over the past decade or so. However, there are at least three aspects of the proposed reforms that would make consumer protection actions in Minnesota more restrictive than in other states.
First, this bill appears to limit consumer protection actions to actual consumers. Some state statutes broadly construe who is a “consumer” for the purposes of enforcing the consumer protection law, so that small businesses and other non-natural “persons” can sometimes qualify.
Second, while most states have some sort of requirement that there be proof of causation of injury in a consumer protection case, HF211 would require a specific kind of injury:
No award of damages in an action covered by this subdivision may be made without proof that the person or persons seeking damages suffered an actual out-of-pocket loss. The term “out-of-pocket loss” means an amount of money equal to the difference between the amount paid by the consumer for the good or service and the actual market value of the good or service that the consumer actually received.
This language appears to restrict consumer protection claims to only those situations in which the named plaintiff and other would-be class members suffered a loss of value to the product or service purchased. So, a claim that deceptive marketing or advertising practice caused consumers to suffer financial losses other than loss of value to the product itself would apparently be foreclosed. The specific language may be intended to avoid the kinds of uncertainty that has plagued litigants in California following the passage of Proposition 64 in 2005, a voter-approved reform that requires proof that the named plaintiff “lost money or other property” in order to pursue a class action under the state’s Unfair Competition Law (UCL).
Curiously, the bill makes reference to a requirement that this injury be proved on an “individual” basis, even in a class action:
Each such person seeking to recover damages for violations of these sections, either in an individual action, a class action, or any other type of action, is required to plead and prove on an individual basis that the deceptive act or practice caused the person to enter into the transaction that resulted in the damages.
It is unclear whether this language, if adopted, would a) effectively prevent any consumer protection claim from being pursued on a class basis because all consumer protection claims would require individual proof of injury, b) be interpreted only as a threshold matter to insure that the class representative (but not absent class members) has standing before the case is allowed to proceed, or c) somehow introduce a new requirement of “individual” proof for all class actions, even while still allowing class actions to be pursued in some form.
Third, this bill would allow appeals of class certification decisions as of right and would create an automatic stay. By contrast, federal rule 23(f), and the similar rules of many states allow interlocutory appeal of class certification orders only in the discretion of the appellate courts and do not mandate an automatic stay of proceedings at the trial court level while the appeal is pending.
The Bill was introduced in the state House on January 24. It is not clear what the Bill’s chances of passage are. Only one of the Bill’s 12 authors is a Democrat (or, for my Minnesota friends who want to be picky, DFL).