rejecting the plaintiff’s assertion that a generic rule provided prior notice because permitting a generic rule to suffice “would allow any previous determination of a deceptive act or practice to qualify as prior notice for any subsequent alleged deceptive act or practice”
How later courts described this case
- rejecting the plaintiff’s assertion that a generic rule provided prior notice because permitting a generic rule to suffice “would allow any previous determination of a deceptive act or practice to qualify as prior notice for any subsequent alleged deceptive act or practice”
- class certification denied; class action only maintainable under state Consumer Sales Practices Act if defendant’s alleged violation is “substantially similar to an act that was previously declared to be deceptive”
- "Cases that involve industries and conduct very different from the defendant's do not provide meaningful notice of specific acts or practices that violate the CSPA."
- "[W]e hold that a consumer may qualify for class-action certification ... only if the defendant's alleged violation of the Act is substantially similar to an act or practice previously declared to be deceptive."
Written by the judges who cited it.
The opinion
Pfeifer, J.,
dissenting.
{¶ 51} How much notice does a company need to know that it is not allowed to “ma[k]e a misleading statement of opinion on which the consumer [is] likely to rely to his detriment”? R.C. 1345.03(6). According to the majority opinion, R.C. 1345.09(B) requires that a company receive notice from a published court opinion or a rule of the Attorney General that a similar industry-specific practice is deceptive or unconscionable before a class-action lawsuit can be pursued. The majority opinion’s unconscionably narrow reading of R.C. 1345.09 severely limits the ability of consumers to bring a class-action lawsuit under Ohio’s Consumer Sales Practices Act (“CSPA”).
{¶ 52} The CSPA does not require industry-specific notice, and neither should this court. This court should interpret the CSPA to “[p]rotect consumers from *18 suppliers who * * * commit deceptive acts or practices, or commit unconscionable acts or practices.” Ohio Adm.Code 109:4-3-01(A)(2)(b). Instead, it has in effect immunized companies from class-action lawsuits by the people they deceive. Because many violations of the CSPA involve only limited or de minimus damages, an unfortunate consequence of this court’s decision is that many deceived parties will have no recourse against the company that deceived them.
{¶ 53} In this case, it is alleged that Philip Morris USA, Inc. (“PMI”) sold cigarettes that it characterized as “low tar” and “light,” even though it knew that the cigarettes delivered as much tar and nicotine as regular cigarettes. In State ex rel. Celebrezze v. Hi-Lo Oil Co., Inc. (July 31, 1985), Franklin C.P. No. 85-CV-01-518, a court determined, unsurprisingly, that selling gasoline from one underground tank as two distinct gasoline products with different costs per gallon and octane ratings is a deceptive practice. Does anyone seriously doubt whether this published opinion put PMI on notice that it could not characterize cigarettes as “light” and sell them as such when it knew that the cigarettes were not light? If PMI acted as alleged, it knew that it was being deceptive and it knew that another company, albeit in a different business, had been found liable for a similar deceptive or unconscionable practice.
{¶ 54} As I construe the majority opinion, a company that sells gasoline is on notice that it may not characterize gasoline as “low tar” or “light” and sell it as such if it is not low tar or light. A company selling gasoline would be on notice that such a practice is sufficiently similar to the deceptive practice in Hi-Lo Oil Co. But companies in other businesses are apparently not on notice that making false characterizations is deceptive. And they won’t be until a court in this state rules that a company in their industry committed a deceptive practice.
{¶ 55} One last thing: it is unclear just how similar the act that has previously been determined to be deceptive has to be to the act in question in order to qualify as notice. Perhaps deception about pricing is insufficiently similar to deception about quality to put a company on notice for class-action purposes. Perhaps a woman’s deceiving a customer is insufficiently similar to a man’s deceiving a customer. Perhaps deceiving a customer about a Honda is insufficiently similar to deceiving a customer about a Ford. We’ll just have to wait and see.
{¶ 56} In my opinion, selling a product as one thing when it is in fact another is sufficiently similar to selling a product as one thing when it is in fact another. I would certify the class and allow the plaintiffs to proceed to trial. To do otherwise is to encourage everyone doing business in this state to engage in deceptive practices. I dissent.
Chester, Wilcox & Saxbe and Charles R. Saxbe; Amer Cunningham Co., L.P.A., and Jack Morrison Jr.; Smoger & Associates and Gerson H. Smoger; Russell Smith and Bryan Nace; and Murdock, Goldenberg, Schneider & Groh and John C. Murdock, for appellees.
Tucker, Ellis & West, L.L.P., and Irene C. Keyse-Walker; and Dechert, L.L.P., Robert C. Heim, Judy L. Leone, Ezra D. Rosenberg, and Ronni E. Fuchs, for appellant.
Squire, Sanders & Dempsey, L.L.P., and William M. Todd; and Bricker & Eckler, L.L.P., Kurtis A. Tunnell, Anne Marie Sferra, and Vladimir P. Belo, urging reversal for amici curiae Ohio Chamber of Commerce, the Ohio Manufacturers Association, and the National Federation of Independent Business/Ohio.
Stacy Canan and Michael Schuster; and Cooper & Walinski, L.P.A., and Richard S. Walinski, urging affirmance for amici curiae AARP and American Cancer Society.