The Florida Supreme Court issued in intriguing opinion in Soper v. Tire Kingdom, Inc., No. SC11-1462, which provokes questions about the trajectory of Florida class action law. In Tire Kingdom, the court reversed and remanded the Third District’s decision in Tire Kingdom, Inc. v. Dishkin, 81 So. 3d 437 (Fla. 3d DCA 2011), apparently without allowing briefing by the parties on the merits.
The three sentence per curiam order (joined by Justices Pariente, Lewis, Quince, Labarga, and Perry) merely stated that the Third District’s decision in Dishkin was in “express and direct conflict” with its decision last year in Sosa v. Safeway Premium Finance Co., 73 So. 3d 91 (Fla. 2011). It unfortunately does not articulate how that conflict arises.
The vigorous dissent by Justice Canady (joined by Chief Justice Polston) provides a clue. Justice Canady argues that Sosa represented a “sea change in Florida’s law governing class actions” and suggested that it should be repudiated. How did it represent a “sea change”? The only thing we know at this point is that the court in Sosa ignored the U.S. Supreme Court’s analysis in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) related to the (a)(2) commonality element of the class action rule. The court in Sosa held that, at least on commonality, “the possibility of mere factual differences in the individual circumstances surrounding each of the putative class members’ claims and the variances in defenses to them” was improper. Given that the language of Rule 23(a)(2) is similar to Rule 1.220(a)(2) and Florida courts have heretofore deferred to federal case law interpreting Rule 23 in construing the Florida class action rule, Justice Canady argued that this was error.
If Sosa’s “sea change” and Tire Kingdom’s emphasis on it is cabined to commonality, it is not really much of a sea change from federal class action law pre-Wal-Mart. Most litigants long have considered commonality a throw-away element easy for a plaintiff to satisfy, with defendants preferring to save up their ammunition for a predominance and superiority challenge. In the federal system, Wal-Mart breathed life back into the argument that there is a defense to the commonality element, but in this sense, Wal-Mart was a sea-change. What else might Sosa mean? The court seemed to quote the legal standard for determining class certification from virtually every district court of appeal decision construing Rule 1.220 in the last ten years, so there is something there perhaps for everyone. Its predominance analysis was fairly unremarkable and fact-driven. Thus, maybe the “sea-chance” relates only to commonality. We don’t know. What is certain is that Sosa and now Tire Kingdom give lawyers on both sides of the “v.” plenty of things to say in arguing for and against class certification going forward. What also is certain is that defendants facing class actions in Florida courts need to take a hard look at removal to federal court, where they can be sure they have additional commonality arguments that appear foreclosed for the time being in Florida courts.