Judge Dean D. Pregerson certified the class under Rule 23(b)(3) in a suit alleging an undisclosed defect in certain Nissan vehicles. The court certified California consumer protection and implied warranty claims, a Washington consumer protection claim, and a claim for common law fraud. The case is Falco v. Nissan N. Am. Inc., 2016 WL 1327474 (C.D. Cal. Apr. 5, 2016).
The Court finds this case raises similar common questions of fact and law to the common questions alleged in another consumer automobile defect class certification case, Chamberlan v. Ford Motor Co., 402 F.3d 952, 962 (9th Cir. 2005). … In these consumer defect cases, commonality can be found in the very legal and factual question of the defect. See, e.g., id.; see also Wolin v. Jaguar Land Rover N. Am. LLC, 617 F.3d 1168, 1172 (9th Cir. 2010); Doyle v. Chrysler Grp. LLC, No. SACV 13-00620, 2014 WL 7690155, at *6-7 (C.D. Cal. Oct. 9, 2014); Parkinson v. Hyundai Motor Am., 258 F.R.D. 580, 595-96 (C.D. Cal. 2008).
the class would be getting the benefit of their bargain because they would be put in the same position they would have been had the car not been sold with the defective timing chain system — it is the cost necessary to make the vehicles conform to the value Plaintiffs thought they were getting in the price tendered.
Does Tyson Foods Case Redefine Predominance?
The majority begins by redefining the predominance standard. According to the majority, if some “‘central issues’” present common questions, “ ‘the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.’ ” Ante, at 9 (quoting, 7AA C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure §1778, pp. 123–124 (3d ed. 2005; footnotes omitted)). We recently—and correctly—held the opposite. In Comcast, we deemed the lack of a common methodology for proving damages fatal to predominance because “[q]uestions of individual damage calculations will inevitably overwhelm questions common to the class.” 569 U. S., at ___ (slip op., at 7).
Yesterday, we wrote about the ruling in Moore v. Ulta Salon, Cosmetics & Fragrance, in which Central District of California Judge Fernando M. Olguin concluded (correctly) that “the [Comcast] Court did not hold that damages must be shown through classwide evidence for common liability issues to predominate.” (emphasis added). Judge Olguin’s conclusion jives with several post-Comcast rulings by the Ninth Circuit.
Today, we note that another court in the same district reached the opposite conclusion, stating that “to certify a class under Federal Rule of Civil Procedure 23(b)(3)” plaintiffs must show that “damages are capable of measurement on a classwide basis.” In re NJOY, Inc. Consumer Class Action Litig., 2016 WL 787415 (C.D. Cal. Feb. 2, 2016). The continuing divergent results on this issue will likely require the Ninth Circuit to take up the issue yet again.
In previous posts, we’ve noted that some district courts have continued to grapple with Comcast v. Behrend, even though the Ninth Circuit has repeatedly clarified that Rule 23(b)(3) does not require classwide proof of damage. Given the inconsistent district court holdings, it is not surprising that defendants sometimes avoid mentioning the Ninth Circuit’s holdings. But in a recent opinion, Judge Fernando M. Olguin dealt with the failure harshly, writing that defense counsel had “misstate[d] the standard set forth in Comcast.” See Moore v. Ulta Salon, Cosmetics & Fragrance, 311 F.R.D. 590 (C.D. Cal. 2015).
defendant misstates the standard set forth in Comcast. … The [Comcast] Court did not hold that damages must be shown through classwide evidence for common liability issues to predominate.… Here, if the class prevails on its liability claims … only then will the court determine how many hours of pay each plaintiff is entitled to, how many meal and/or rest breaks each plaintiff was denied, and the resulting penalties that defendant must pay.
Three years after Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), lower courts continue to certify classes for liability purposes only, thereby reserving consideration of damages for individual determination during subsequent phases of litigation. These courts reason that Comcast’s predominance and superiority concerns are “largely irrelevant” to this approach, which is permitted by Rule 23(c)(4). E.g., In re Deepwater Horizon, 739 F.3d 790, 817 (5th Cir. 2014); Butler v. Sears, Roebuck and Co., 727 F.3d 796, 800 (7th Cir. 2013).
A recent order granting class certification in Peterson v. Costco Wholesale Co., Inc., 2016 WL 304299 (C.D. Cal. Jan. 26, 2016), exemplifies the trend. Following a Hepatitis A outbreak in the western United States “linked to the consumption of Townsend berry mix sold to consumers at various Costco locations in early 2013,” id. at *1, individuals from nine different states filed a class action in California state court, seeking damages in part on strict liability theories. The case was then removed to federal district court, where it was assigned to Judge David O. Carter.


§ 197-12 Establishment of development permit.
§ 197-13 Designation of local administrator.
§ 197-14 Duties and responsibilities of administrator.
Review all development permits to determine that if the proposed development is located in the floodway, then assure that the encroachment provisions of § 197-18A are met.
Use of other base flood and floodway data. When base flood elevation and floodway data has not been provided in accordance with § 197-7, Basis for establishing areas of special flood hazard, the Construction Official shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal, state or other source, in order to administer § 197-17, Subsection A, Specific standards, residential construction, and Subsection B, Specific standards, nonresidential construction.
Maintain the floodproofing certifications required in § 197-12C.
Interpretation of DFIRM boundaries. Make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazard (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in § 197-15.
The Planning Board as established by the Borough of Highland Park shall hear and decide appeals and requests for variances from the requirements of this chapter.
Those aggrieved by the decision of the Planning Board, or any taxpayer, may appeal such decision to the Superior Court, as provided in Court Rule 4:69.
Upon consideration of the factors in Subsection A(4) and the purposes of this chapter, the Planning Board may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter.
Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided Subsection A(4)(a) through (k) have been fully considered. As the lot size increases beyond the 1/2 acre, the technical justification required for issuing the variance increases.


The Supreme Court appears poised to entertain an impending challenging to the well‑developed Circuit law defining the scope of Freedom of Information Act (“FOIA”) Exemption 4 — the National Parks/Critical Mass test. This post is the second in a series. The first described the development of the National Parks/Critical Mass doctrine and recounted the somewhat tortured history of Argus Leader Media v. Department of Agriculture, 889 F.3d 914 (8th 2018). The Food Marketing Institute (“FMI”), the prospective petitioner, will urge the Court to refocus Exemption 4 doctrine on the plain meaning of a critical statutory term — “confidential.” This post argues that even if the Court does so, the data FMI seeks to protect should fall outside of Exemption 4.
The short answer to Judge Randolph’s challenge, at least in the context of the Argue Leader litigation, is that the aggregate redemption data the Argus Leader seeks is not the retailer’s commercial information (i.e., it is not “obtained from” the retailer). Moreover, because the data is merely transactional data documenting the sale of goods to citizens on the government’s behalf, it cannot be considered “confidential.” The Argus Leader will undoubtedly assert the latter point in contesting FMI’s plea for making customary business practice regarding disclosure dispositive. Response to Application to Recall and Stay Mandate, etc., 5, 19-21 & nn. 30, 32 (Aug. 16, 2018).
FOIA is designed to ensure that the citizenry, to which the Government is accountable, can obtain agency records revealing “what their [G]overnment is up to.” U.S. Department of Justice v. Reporter’s Committee for Freedom of the Press, 489 U.S. 749, 772-73 (1989). Under SNAP, the Government enlists private entities in a program that reimburses them for selling foodstuffs to program beneficiaries on the Government’s account. The expenditure of public monies is one of the most critical aspects of “what [the] [G]overnment is up to;” how much particular entities make in providing services under Government programs is an important element of fiscal transparency.
One of the U.S. Constitution’s few affirmative disclosure provisions, Article I, Section 9, Clause 7, specifies that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Joseph Story explained the importance of the provision as follows: “Congress is made the guardian of th[e] [public] treasure; and to make their responsibility complete and perfect, a regular account of the receipts and expenditures is required to be published, that the people may know, what money is expended, for what purposes, and by what authority.” 3 Joseph Story, Commentaries on the Constitution of the United States §1342 (1833). Similarly, in U.S. v. Richardson, 418 U.S. 166 (1974), Justice Douglas wrote: “The sovereign in this Nation is the people, not the bureaucracy. The statement of accounts of public expenditures goes to the heart of the problem of sovereignty. If taxpayers may not ask that rudimentary question, their sovereignty becomes an empty symbol and a secret bureaucracy is allowed to run our affairs.” Id. at 201 (Douglas, J., dissenting); accord, 3 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND OF THE COMMONWEALTH OF VIRGINIA (The University of Chicago Press 2000)(excerpted). The Clause’s unenforceability, due to its conferral of a generalized entitlement to the public as a whole, which no individual has standing to enforce, U.S. v. Richardson, 418 U.S. at 176-80, does not blunt the normative power of its imperative. See, 150 CONG. REC. S10205 (Oct. 1, 2004)(daily ed.)(statement of Senator Byrd).
Without a rigorous and transparent accountability system in place to provide visibility into who is receiving Federal funds through contracts and grants, and for what purpose, there is a greater potential for fraud and abuse. . . . [In addition,] [g]reater transparency allows taxpayers to judge whether government funds are being used for purposes they consider valuable, or whether spending in certain areas is excessive or wasteful. It also allows the public to better understand, assess, and appreciate the scope and value of federal investments in their communities and to more fully participate in shaping priorities for Federal spending.
SEN. REP. 109-329, 109TH CONG., 2D SESS. 3 (Sept. 8, 2006). The Act directed establishment of a website” through which the public could access information on federal monetary awards. Id. at 1-2. See generally, Thomas H. McTavish, Accountability and Transparency: Finding the Correct Balance, in COUNCIL OF STATE GOVERNMENTS, THE BOOK OF THE STATES 2009 (discussing fiscal transparency on the state level); see, e.g., Department of State, Foreign Operations, and Related Programs Appropriations Act, 2017, Pub. L. 115-31, 131 Stat. 639, §7031(b) (directing the Secretary of State to continue strengthening the ‘‘requirements of fiscal transparency’’ that each foreign government receiving U.S. assistance should satisfy).
The term “confidential” must contain a normative component. To qualify as “confidential” the government records withheld must contain information that a business entity is entitled to keep secret. A business entity is not entitled to keep information “secret” from an entity that has agreed to compensate it for services rendered. Here the entity providing reimbursement is the United States Government, over which “the people” are sovereign. Thus, whether or not businesses wish to keep their transactions with the government secret, FOIA’s raison d’être, enabling the citizenry access to information regarding the government’s activities, including government’s reimbursement of private entities for their role in government programs, must prevail. See, Racal-Milgo Governmentt Systems v. SBA, 559 F. Supp. 4, 6 (D.D.C. 1981) (“[d]isclosure of prices charged the Government is a cost of doing business with the Government.”); but cf., Center for Digital Democracy v. FTC, 189 F. Supp. 3d 151, 162-64 (D.D.C. June 1, 2016)(“nonpublic interpretations and analyses of the FTC’s COPPA Rule” by private regulatory organizations exempt as “confidential,” regardless of whether they constitute “secret law,” which FOIA’s affirmative disclosure provisions forbid).
In its petition for recall of the mandate, FMI relied on Department of Interior v. Klamath Water Users Protective Assn, 532 U.S. 1, 12 (2001), and Milner v. Department of the Navy, 562 U.S. 562, 569-76 (2011), in support of its textualist approach. Food Marketing Institute v. Argus Leader Media, Application To Recall And Stay Mandate, etc. 13, 16-17 (Aug 7, 2017). But, FMI’s proposed texutalist construction of Exemption 4 limits public access to information in the government’s possession by broadly construing the exemption. By contrast, in Klamath, Milner, and FCC v. AT&T, 562 U.S. 397 (2011), FOIA requesters successfully invoked textualism to expand the public availability of information. FMI’s broad construction of Exemption 4 would limit the reach of FOIA’s fundamental imperative, making agency records publicly available. In doing so, FMI’s favored construction conflicts with the Supreme Court’s standard admonition that FOIA’s overall policy is disclosure and the Act’s exemptions are to be construed narrowly. Milner, 562 U.S. at 571; Klamath, 532 U.S. at 7-8; Department of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976).
But FMI’s argument has even more troubling implications. Agencies ordinarily possess virtually unreviewable discretion to refrain from invoking many of FOIA’s exemptions, Chrylser Corp. v. Brown, 441 U.S. 281, 293-94 (1979)(FOIA’s exemptions permit, but do not require, agencies to withhold documents); EPA v. Mink, 410 U.S. 73, 80 (1973)(same). Moreover, Congress has now placed agencies under a statutory obligation to exercise that discretion in favor of disclosure, FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538, §2 (adding 5 U.S.C. §552(a)(8)(A)(i)). But “reverse” FOIA actions, enable business entities to invoke the Administrative Procedure Act’s judicial review provision to stop an agency’s release of information, Chrylser Corp. v. Brown, 441 U.S. 281, 317-19 (1979); see, e.g., American Farm Bureau Federation v. EPA, 836 F.3d 963 (8th Cir 2016); Chiquita Brands Intern. v. S.E.C., 805 F.3d 289 (D.C. Cir. 2015). Business entities’ power to challenge an agency’s failure to invoke Exemption 4 makes a capacious interpretation of the provision all the more damaging. And indeed, Executive Order 12600, 52 FED. REG. 23781 (1987), requires agencies to establish procedures to notify business entities upon receiving a FOIA requests that seeks “confidential commercial information” and provide an internal appeals process before deciding on the agency’s response.
Analogizing to at least to two doctrines under Exemptions 6 and 7(c) may aid in interpreting Exemption 4. Exemption 6 permits the Government to withhold “personal and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Exemption 7(c) similarly allows the Government to withhold law enforcement records to protect personal privacy. There are obvious differences between the Exemptions 6 and 7(c) on the one hand, and Exemption 4 on the other. Most notably, Exemptions 6 and 7(c) clearly contemplate balancing individuals’ privacy interests against the public interest while Exemption 4 appears to call for no such balancing regarding business’ interest in their commercial and financial information. Even so, the caselaw interpreting Exemption 6 and 7(c) is instructive in at least two respects.
First, Exemption 6 doctrine helps illuminate the distinction between information regarding the government and information regarding a private entity. In Reporter’s Committee for Freedom of the Press, the Court noted that the Government collects and maintains much information on private individuals, 489 U.S. at 773, 774. But, the Court explained, the point of FOIA is not to allow the public to learn about individuals, but to learn about the Government — “FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.” Id. at 774. Thus, the only cognizable public interest in obtaining information in files relating to private citizens is furthering knowledge of the Government’s activities. Id.
Similar reasoning can distinguish data over which a business entity can legitimately claim dominion from data over which a business entity and the Government must share control. (This is not entirely unlike the issues regarding whether records prepared for or received from congressional committees are “agency records” covered by FOIA or congressional records exempt from FOIA, see, e.g., ACLU v. CIA, 823 F.3d 655, 662-68 (D.C. Cir. 2016); United We Stand America v. IRS, 359 F.3d 595, 598-603 (D.C. Cir. 2004); Goland v. CIA, 607 F.2d 339, 345-48 (D.C. Cir. 1978).) The specific examples of material protected by Exemption 4, survey, business sales statistics, inventories, customer lists, scientific or manufacturing processes, and negotiating position during labor-management mediations, SEN. REP. 89-813, at 44, H.R. REP. 89-1497, at 31, reveal little or nothing about what the Government is up to. But the amounts of government monies claimed by private individuals does. In a statute that broadly mandates disclosure, exemptions are to be viewed as limited. But FMI’s application of Exemption 4 would strike at the statute’s heart.
A second aspect of Exemption 6 doctrine merits consideration. Under Exemption 6, promises of confidentiality, while relevant, are not dispositive. Robles v. EPA, 484 F.2d 843, 846 (4th Cir, 1973); Washington Post v. HHS; 690 F.2d 252, 263-64 (D.C. Cir. 1982); Ackerly v. Ley, 420 F.2d 1336, 1339-40 n.3 (D.C. Cir. 1969); Kurzon v. HHS, 649 F.2d 65, 69-70 (1st Cir. 1981). As the Court explained in Washington Post v. HHS, while “release of information provided under a pledge of confidentiality involves a greater invasion of privacy than release of information provided without such a pledge. . ., to allow the government to make documents exempt by the simple means of promising confidentiality would subvert FOIA’s disclosure mandate.” 690 F.2d at 263.
Courts could easily construe the term “commercial” to mean “commercially valuable,” particularly in light of the admonition that exceptions to FOIA’s basic rule of disclosure are to be construed narrowly. Such an interpretation would easily encompass the “competitive effects” prong of the National Parks/Critical Mass test. Courts must construe statutory terms in tandem so that the statute works harmoniously as a whole. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000); Orton Motor, Inc. v. HHS, 884 F.3d 1205, 1212 (D.C. Cir. 2018).
In short, closing hewing to the dictionary definition of “confidential,” as FMI suggests, ignores Learned Hand’s admonition that “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff’d, 326 U.S. 404 (1945). The term must be interpreted in the context of a statute that primarily seeks to ensure governmental transparency. At the Court observed in King v. Burwell, — U.S. —, 135 S.Ct. 2480 (2015), “when deciding whether the language is plain, we must read the words ‘in their context and with a view to their place in the overall statutory scheme’[;][o]ur duty, after all, is ‘to construe statutes, not isolated provisions.’” Id. at 2489 (quoting Brown & Williamson, 529 U.S. at 133, and Graham County Soil and Water Conservation District v. United States, 559 U.S. 280, 290 (2010)).
An approach that seeks to distinguish documents regarding a business’ activities from documents illuminating “what [the] [G]overnment is up to” seems more tethered to the text and offers a clear answer in the case of aggregate SNAP redemption records. But unless an extreme pro-disclosure or anti-disclosure position is adopted, in many cases such a test will be no less difficult to apply than the National Parks/Critical Mass test.
The committee reports accompanying FOIA focus on circumstances in which the distinction between business information and the government’s activities is quite clear. The paradigm case for application of the exemption was business entities’ responses to government questionnaires and surveys, such as Bureau of Labor Statistics surveys. SEN. REP. 89-813, at 44, H.R. REP. 89-1497, at 31, 100 CONG. REC. 17667 (July 31, 1964)(colloquy between Senators Humphrey and Long). Such survey responses reveal little about the government’s regulation of, aid to, or cooperation with private entities. However, in the Senate hearings held in 1963, Assistant Attorney General Norbert A. Schlei, expressed concern about the confidentiality of information “exacted, by statute, in the course of necessary regulatory or other governmental functions.” HEARINGS ON S. 1666 BEFORE THE SUBCOMM. ON ADMINISTRATIVE PRACTICE AND PROCEDURE OF THE SENATE COMM. ON THE JUDICIARY, 88TH CONG., 1ST SESS. 199 (Oc.t 28, 29, 30 and 31, 1963) [accessible through this webpage](quoted in National Parks & Conservation Assn v. Morton, 498 F.2d at 765, 768-69 (D.C. Cir. 1974)). He suggested that the bulk of commercial and financial information was exacted in such diverse contexts. Hearings on S. 1666, at 199. Even so, the committee reports ultimately adverted to only two such circumstance, where a business provides information to a governmental lending agency in connection with a loan and where information was provided as part of labor-management mediation. SEN. REP. 89-813, at 44, H.R. REP. 89-1497, at 31.
Aside from loan applications, labor-management mediation, survey responses submitted for statistical compilation, and records of transactions with the government, how are we to distinguish a business’ information from that divulge “what [the] [G]overnment is up to?” Information submitted to regulators by a regulated entity is, in a sense, the regulated entity’s information, it is generated by the entity about its own actions and financial status, yet critical to assessing the diligence of government regulators.
Or take the audit materials at issue in National Parks itself. National Parks & Conservation Assn. v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976). The materials surely reported the business entity’s activities and financial position. But the relevant statutory scheme created a symbiotic relationship between the Park Service and its concessionaires. See, id. at 676-77. The Park Service could confer a monopoly or other preferred status upon concessionaires, id. at 676, but the concessionaires were subject to intrusive review and control of their activities by the Park Service, much as in the private sector franchisees might be subject to review or control by a franchisor. See, id at 676-77; see, 16 C.F.R. §436.1(h)(defining franchise in private commercial context. The Park Service was required to assess whether a concessionaire has lived up to its contractual obligations and review the reasonableness of the consessionaire’s prices, inter alia. Id. at 676. And, of course, the concessionaires were operating on Park Service properties to provide goods and services to Park Service guests. The risk of “sweetheart” deals, favoritism, and Park Service-concessionaire collusion to impose unnecessary restraints on competition are obvious.
The Government’s review of concessionaire’s financial records, determination of whether to renew concession contracts, and decision to confer a monopoly or “preferred” status on a concessionaire are clearly matters related to the Government’s financial transparency. Citizens probably cannot assess the Park Service’s decision-making in such matters without access to the information upon which the Parks Service relies in making such determinations. There are other such complex commercial relationships between the Government and other entities. See, Forest County Potawatomi Community v. Zinke, 278 F.Supp.3d 181 (D.D.C. 2017) (information relating to a competitor tribe’s unsuccessful application to open a gaming establishment).
I cannot explore these issues in this post. The point is that barring embrace of one extreme position or another, an interpretation tied more closely Exemption 4’s text of will not be easy to apply and may well require case-by-case adjudication over a period of years to fully flesh out the Exemption’s scope.
The next post will discuss whether the National Parks/Critical Mass test should be overturned at all. It will argue that the normative value of leaving long-standing court of appeals precedence in place outweighs the value of fealty to the statutory text, particularly in the context of FOIA.