Class action certification in Ohio courts continues to be a sea of uncertainty for litigants trying to maneuver those waters, especially when the claims involve consumer protection claims. However, the Eight District Court of Appeals (Cuyahoga County) recently used the Ohio Supreme Court’s “actual injury” requirement set forth in
Felix v. Ganley Chevrolet, Inc., 145 Ohio St. 3d 329 (2015) to establish some moorings when it torpedoed a class action approved by a trial court. In
Konarzewski v. Ganley, Inc., 2017-Ohio 4297 (Cuy. Cty.), plaintiffs obtained class certification for claimed violations of the Ohio Consumer Sales Practices Act and Ohio Retail Installment Sales Act based on Ganley’s use of certain form documents. In reversing, the appellate court concluded that “the plaintiffs herein failed to demonstrate that they can prove, through common evidence, that all class members were in fact injured by defendants’ use of” the problematic forms. As such, “because resolution of the issue of actual damages would require a case-by-case analysis of each transaction, we cannot say that common questions of law and fact predominate over individualized inquiries.” Further demonstrating the necessarily individualized nature of such inquiries, the court noted that the form documents were not uniformly applied to every potential class member since each transaction involved different monetary and other terms. Hopefully, the “actual injury” requirement will continue to be an anchor that provides some stability in the class action ocean.
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