Powerpoint For Class Cert Hearing(Final)

Baker vs. Go Hearing on Motion for Class Certification Adams County District Court 17 th Judicial District Division C Civil Action 07 CV 543 The Honorable John E. Popovich

CRCP 23(a) Standards Numerosity Commonality Typicality Adequacy Must consider the essential elements of the parties claims and defenses in order to determine whether class should be certified

The Bakers’ Claims Dealer Handling Charge is illegal Dealer Handling Charge constitutes the “unauthorized practice of law” and therefore violates the Colorado Consumer Protection Act Dealer Handling Charge is unconscionable under the Uniform Consumer Credit Code Money Had and Received

The Bakers’ Claims All of the Bakers’ claims are based on the same premise: The Dealer Handling Charge constitutes the unauthorized practice of law.

The Go Dealerships Do Not Charge For the Preparation of Documents There is no evidence that the Go Dealerships charge for the preparation of documents The Bakers do not dispute this fact The Unauthorized Practice of Law claims are therefore a red herring

The Go Dealerships Do Not Charge For the Preparation of Documents (continued) The disclosure language used (and required by the Assurance of Discontinuance) states that it is a charge for a cost “such as”… Demonstrative language No requirement to charge for items listed The Go Dealerships do not allocate any portion of the Fee for preparing documents

Go Dealerships Defenses Do not charge for preparing documents Practice is permitted by “Assurance of Discontinuance” issued by Colorado Attorney General Completion of documents is not unauthorized practice of law No “money had and received” claim when express contract Voluntary Payment by proposed class

Bakers’ Theory Activity is unconscionable because of Unauthorized Practice of Law (UPL) An essential element of Bakers’ UPL claim is that Go Dealership Defendants charged for the preparation of documents This theory fails because the undisputed evidence is that Go Dealership Defendants did not charge for the preparation of documents Therefore the Bakers can only proceed on their alternative theory

Bakers’ Alternative Theory The activity is deceptive under the CCPA because the Go Dealership Defendants state that they charge for something that they do not The Disclosures state that the fee is “…costs and additional profit to the seller for items such as …” Such As means “of a kind or character about to be indicated, suggested, or exemplified” (i.e. an example) Inquiry will have to be made as to each individual’s understanding of the Disclosures Factual issue predominate over common issues, if any, with respect to Plaintiffs’ Alternative Theory

Elements of a CCPA Claim (1) that the defendant engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the course of defendant's business (3) that it significantly impacts the public as consumers of the defendant's goods or services, (4) that the plaintiff suffered damages; and (5) that the challenged practice caused the plaintiff's damages. Crowe v. Tull , 126 P.3d 196, 201 (Colo. 2006) Plaintiff must show:

GO Dealerships Defenses to Class Certification Arbitration and Class Waiver Go Dealerships did not act on behalf of consumers Individual issues predominate on all claims UCCC claim requires consumer credit and excludes cash deals and business vehicles Damages 23(b) issues: No injunctive relief and individual claims are superior

History of Dealer Handling Charges In Colorado The Colorado Attorney General began an investigation in the late 1970s Lead to the creation of an “Assurance of Discontinuance” under CRS § 6-1-110. Requires disclosure to consumers Followed by Go Dealerships

First Requirement Under 1979 AOD

Second Requirement Under 1979 AOD

Attorney General Suthers’ 12/10/2007 Policy Guidance

Bakers’ Purchase Agreement and AOD Language (emphasis added)

Colorado Law on the Unauthorized Practice of Law No Colorado Case recognizes a private cause of action for damages for the unauthorized practice of law All reported decisions involve claims for injunctive and/or declaratory relief only

Newman vs. Bozarth : Judge Kane’s View of UPL Did the Defendant give any explanation or advice about the documents? Are the documents “necessary and essential” to Defendant’s business? Did the Defendant charge a fee? Would the public interest be served by stopping the practice? Was the Defendant a party to the documents it was preparing?

Representation Essential question for any UPL claim Bakers testified that they knew that the Go representatives were not acting on their behalf Same questions would have to asked of every class member Did the Defendant undertake any representation of the Plaintiff?

State-Mandated Disclosure Form

Bakers’ Purchase Agreement “ Purchaser is encouraged to review this Purchase Agreement (including the Additional Terms and Conditions set forth on the reverse side hereof) carefully and seek independent professional advice if Purchaser has any questions concerning this transaction.”

Arbitration and Class Waivers Virtually the entire proposed class signed the Arbitration Agreement that includes a Class Action Waiver Colorado law favors arbitration and permits class waivers No standing to challenge the unconscionability of the agreement

Lygas’ Arbitration Agreement “ By entering into this agreement, you give up your right to participate as a class representative or class member on any claim you may have against Dealership including any right to class arbitration or consolidation of individual arbitrations.”

Bakers’ Arbitration Agreement (“Customer refused to sign”)

Elements of Class Certification C.R.C.P. 23(a) Numerosity Commonality Typicality Adequacy Of Representative Class Counsel C.R.C.P. 23(b)(2) Injunctive Relief C.R.C.P. 23(b)(3) Predominance Superiority

Class Definition Colorado Residents When? At the time of transaction? At the time of filing of the lawsuit or at the time class is certified? No matter which time is used factual investigation is necessary. “ Consumers” CCPA and UCCC conflict CCPA is available to “person” but UCCC is only available to “consumers”.

Class Definition-Subclass UCCC Definition of “Consumer” “ Consumer means a person other than an organization who is the buyer, lessee, or debtor to whom credit is granted in a consumer credit transaction.” “ Consumer Credit Sale” credit sale to a person other than an organization for goods “purchased primarily for personal family, or household purpose….” C.R.S. § 5-1-301(10)and (11)(emphasis added)

Numerosity The use of sales volume alone cannot support a numerosity finding Bakers’ class definition does not exclude any potential class members Who signed the arbitration agreements Who bought vehicles through wholesale broker transactions, fleet transactions, and employee-manufactured purchase program Who are commercial buyers Who paid cash and therefore are not covered by the UCCC Who are no longer Colorado residents

Commonality Did the Defendants undertake to represent each member of the class? Did each member of the class rely on any alleged representation made by the Defendants? The unauthorized practice of law analysis requires an individualized analysis

Commonality (continued) Did each member of the class sign an arbitration agreement? The proposed class makes no distinction for those that did Is each member of the class a “consumer” under the UCCC? The proposed class makes no mention of businesses that bought cars or individuals who bought cars for business purposes and therefore are not subject to the UCCC.

Typicality did not sign the arbitration agreement did not rely on any alleged representations made by the defendants were not represented by the Defendants have no actual damages are subject to the voluntary payment defense dismissed their UCCC/TILA claim The Bakers are atypical of their proposed class because they:

Damages The CCPA prohibits statutory damages in class actions. C.R.S. § 6-1-113(2) Cost of preparing the Bakers’ vehicle for resale exceeded the Dealer Handling Fee Paid-No actual damages Go Dealerships do not charge any amount for preparation of documents Bakers’ damages are not typical No typical damage calculation

Adequacy The Bakers cannot devote the time necessary to vigorously prosecute this case Stacy Baker failed to appear at her deposition The Bakers do not effectively communicate with their Class Counsel Judge Shaffer’s finding on the Bakers’ adequacy The Bakers’ Counsel have never reviewed the Defendants’ deal files No pursuit of Lygas’ claims in arbitration No pursuit of discovery on summary judgment Lygas’ claim withdrawn without consideration of unconscionability The Plaintiffs Are Inadequate Class Representatives because:

The Bakers’ Response to the Summary Judgment Motion The Bakers’ response to the summary judgment motion stated that they have the right to discovery about whether any oral representations inconsistent with the Assurance of Discontinuance were made This inquiry would have to be made on an individual basis – what representations were made and did each individual rely on those representations

Rule 23(b) Analysis Primary thrust of case is damages Only claim for injunctive or declaratory relief is in WHEREFORE clause of First Amended Complaint CCPA does not permit a private litigant to pursue injunctive relief Individual issues predominate over common issues Individual CCPA actions far superior

Conclusion The Go Dealerships do not charge a fee for preparing documents. The Dealer Handling Fee is charged pursuant to an Assurance of Discontinuance. UPL requires more than preparation of documents and a fee – it requires representation.

Conclusion (continued) Go Hyundai Mazda did not represent the Bakers. Arbitration Agreement with Class Prohibition precludes class certification. Bakers have no actual damages. CCPA prohibits statutory damages in class actions.

Conclusion (continued) Class definition is fundamentally flawed Colorado residents – When? CCPA ‘”person” vs. UCCC “consumer” UCCC business vs. personal use Individual issues of arbitration, consumer definition, and representation destroy commonality

Conclusion (continued) Issues of arbitration, damages, voluntary payment and dismissal of TILA claim demonstrate that Bakers’ claims are atypical Primary thrust of the Bakers claim is money damages, not injunctive or declaratory relief Individual issues predominate over common issues and individual claims are far superior.

Powerpoint For Class Cert Hearing(Final)

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Powerpoint For Class Cert Hearing(Final)