Feinstein v. Firestone Tire and Rubber Co.

• Decision Date: 30 March 1982
• Docket Number: 78 Civ. 4301-CSH and 80 Civ. 2339-CSH.,No. 78 Civ. 4342-CSH,78 Civ. 4342-CSH
• Parties: Richard L. FEINSTEIN, et al., Plaintiffs, v. The FIRESTONE TIRE AND RUBBER CO., Defendant. Irving KANTER, etc., Plaintiff, v. FIRESTONE TIRE AND RUBBER CO., Defendant. Mary JACKS and Eileen Miller, etc., Plaintiffs, v. FIRESTONE TIRE AND RUBBER CO., INC., Defendant.
• Court: U.S. District Court — Southern District of New York

535 F. Supp. 595

Richard L. FEINSTEIN, et al., Plaintiffs, v. The FIRESTONE TIRE AND RUBBER CO., Defendant.

Irving KANTER, etc., Plaintiff, v. FIRESTONE TIRE AND RUBBER CO., Defendant.

Mary JACKS and Eileen Miller, etc., Plaintiffs, v. FIRESTONE TIRE AND RUBBER CO., INC., Defendant.

Nos. 78 Civ. 4342-CSH, 78 Civ. 4301-CSH and 80 Civ. 2339-CSH.

United States District Court, S. D. New York.

March 30, 1982.

COPYRIGHT MATERIAL OMITTED

Kass, Goodkind, Wechsler & Gerstein, New York City, for Feinstein plaintiffs; Stuart D. Wechsler, Robert S. Schachter, Samuel K. Rosen, Jonathan M. Plasse, New York City, of counsel.

David Jaroslawicz and Greenfield & Schoen, P. C., New York City, for Kanter plaintiffs.

Gene Mesh Co., L. P. A., Cincinnati, Ohio, Guren, Merritt, Sogg & Cohen, Cleveland, Ohio, for Jacks plaintiffs; Gene Mesh, Cincinnati, Ohio, David Schaefer, Cleveland, Ohio, of counsel.

Townley & Updike, New York City, Jones Day, Reavis & Pogue, Cleveland, Ohio, for defendant The Firestone Tire & Rubber Co.; James K. Leader, New York City, Patrick F. McCartan, John L. Strauch, Robert R. Weller, John W. Edwards, II, Cleveland, Ohio, of counsel.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Plaintiffs in the three captioned actions move for class certification under Rule 23, F.R.Civ.P. The defendant in each case is The Firestone Tire & Rubber Company ("Firestone"). The cases arise out of a series of failures of Firestone-manufactured steel belted radial tires, which in 1978 prompted reports by the National Highway Traffic Safety Administration ("NHTSA") and the Committee on Interstate and Foreign Commerce of the United States House of Representatives. In response to the NHTSA report, Firestone entered into a voluntary recall program of the tires in question. Alleged defects in Firestone tires have also spawned numerous specific actions for death, injury or damage; and, as in the three cases at bar, more far-reaching, putative class actions, based upon various theories of recovery.

Firestone contends that none of the captioned cases is appropriate for class certification under Rule 23, the pertinent provisions of which appear in the margin.¹

I.

The three actions now pending in this Court may be summarized as follows:

1. The Feinstein Action. The Feinstein action was commenced in this Court in 1978. The named plaintiffs' amended complaint seeks to certify a class of persons and entities who:

"... (a) owned Firestone 500 steel belted radial tires (`Firestone 500's') manufactured by defendant, The Firestone Tire & Rubber Company (`Firestone') commencing with the date of the applicable statute of limitations and terminating with entry of judgment herein (the `Class Period'); and (b) owned Firestone TPC steel belted radial tires (`TPC's') commencing with the date of the applicable statute of limitations and terminating with entry of judgment herein."

Jurisdiction is asserted under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.,² and under principles of state statutory and common law. Firestone asserts, and plaintiffs do not dispute, that such a class would cover approximately 43,000,000 tires and approximately 12,000,000 or more putative class members. During the course of preliminary hearings in the case, counsel for the Feinstein plaintiffs have narrowed the claims asserted on behalf of the class to claims for breach of an implied warranty of merchantability under the Uniform Commercial Code, §§ 2-314 and 2-714.³ That is to say, the putative Feinstein class members assert no claims for death, injury or accident-related property damage resulting from their use of Firestone tires. The claims of this class are limited to claims for "economic damages" arising out of the cited sections of the UCC, and for punitive damages.

2. The Kanter Action. The Kanter action was originally filed in the Supreme Court of the State of New York, New York County. Firestone removed the action here. Kanter's complaint originally sought class certification under Article 9 of the NYCPLR; having been removed to this Court, he now invokes Rule 23. Kanter seeks certification as representative of a class consisting of individuals and entities "who are residents of the State of New York and purchased Radial 500's between December 1, 1975 and January 1, 1978," the class to include "persons who purchased such tires as original equipment on their automobiles or as replacement tires." Firestone asserts, and the plaintiff Kanter does not deny, that this class would include 574,000 tires and 160,000 putative class members. The theories of liability asserted in Kanter include, in addition to breach of the implied warranty of merchantability, strict liability in tort, negligence, reckless disregard, fraud and deceit. The complaint in Kanter prays for "the amount of actual damages sustained by plaintiff and each member of the class"; "a recall of all Radial 500 tires sold to residents of New York which are still in use"; and "the replacement on a fairly adjusted basis of all Radial 500 tires which are recalled with steel-belted radial tires which are safe and free of defects or the equivalent in dollars."

3. The Jacks Action. The Jacks action was originally commenced in the United States District Court for the Northern District of Ohio, Eastern Division. That court (William K. Thomas, District Judge) granted Firestone's motion under 28 U.S.C. § 1404(a) to transfer the case to this Court for consolidation with Feinstein. The named plaintiffs in Jacks, also invoking the Magnuson-Moss Warranty Act and Ohio law, seek to certify a class which:

"... consists of all purchasers of Firestone Steel belted radial automobile tires (hereinafter `Radial'), or their equivalent sold under another name, including persons who purchased said tires as original equipment on new cars or from third party vendors under private label."

Firestone alleges, and the Jacks plaintiffs do not dispute, that such a class would include approximately 47,000,000 tires and approximately 13,700,000 or more persons. The amended complaint asks that the conduct of Firestone be found violative of the Magnuson-Moss Warranty Act, and that its actions also be condemned as constituting "common law fraud," as well as in violation of Ohio law "and similar laws of other states." Plaintiffs in Jacks demand alternative compensation to all members of the class as follows:

"(i) To require a return of said tires and recover the original purchase price.

"(ii) To require a return of said tires and acceptance of a new non-defective tires.

"(iii) To require the payment of money damages for actual and consequential damages incurred.

"(iv) To require the payment of punitive damages in the amount of $10,000.00 for each purchaser of said tires."

The Jacks plaintiffs also request preliminary and permanent injunctive relief in respect of further sales of defective tires and disclosure of existing defects.

The appropriateness of these actions for class certification under Rule 23 are considered seriatim, and in the order summarized above.

II. Class Certification of the Feinstein Action

Before a class action may be maintained under Rule 23, the action must meet the prerequisites of Rule 23(a), and one set of the alternative requirements of Rule 23(b).⁴

Of the four specified Rule 23(a) prerequisites, usually identified by the shorthand names "numerosity," "commonality," "typicality" and "adequacy," Firestone concedes only numerosity, and contests the others. In addition to these specific Rule 23(a) requirements, the courts have implied two others: (1) there must be an identifiable class, and (2) the class representatives must be members of that class. 7 Wright and Miller, Federal Practice and Procedure (1972), §§ 1760, 1761 at 579-592. Firestone challenges the presence of both factors. Finally, if the class is certifiable only under Rule 23(b)(3), it must appear (1) that questions of law or fact common to class members predominate over questions affecting only individual members, and (2) that a class action "is superior to other available methods for the fair and efficient adjudication of the controversy." Firestone contends that the Feinstein class is arguably certifiable only under Rule 23(b)(3), and that neither of these two additional requirements is shown. The burden of persuasion on all disputed issues falls on plaintiffs, as the proponents of class certification. Greeley v. KLM Royal Dutch Airlines, 85 F.R.D. 697 (S.D.N.Y.1980).

I hold that this case may be certified, if at all, only under Rule 23(b)(3).⁵ That being so, one of the decisive issues is whether common questions of law or fact "predominate" over individual questions. Firestone vigorously attacks certification on that ground.

It is necessary to analyze the nature of the putative class's claims, and the proof that would be adduced in support of them. While recitation in the complaint of common questions of fact or law may satisfy bare pleading requirements, when a motion for certification is made the Court must look beyond the labels employed, and, on the basis of the record developed since filing, determine whether it is in fact confronted with a legitimate class action.⁶

As noted supra, the Feinstein plaintiffs now limit their claims and that of the putative class to claims of economic damage arising out of breach of implied warranties under U.C.C. §§ 2-314 and 2-714. Section 2-314 establishes the basis of liability. Under its terms, "a warranty that the goods shall be merchantable is implied in a contract for their sale"; to be merchantable, the goods "must be at least such as ... (c) are fit for the ordinary purposes for which such goods are used." If the buyer proves a breach of implied warranty of merchantability, § 2-714 comes into play, and provides inter alia that "the measure of damages is the difference at the time and place of acceptance between the value of the goods accepted and the value they would...