ORIGINAL IN THE FLORIDA SUPREME COURT ON DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL PETITIONER'S BRIEF ON JURISDICTION

Transcription

1 ORGNAL N THE FLORDA SUPREME COURT GEORGE ACUNA et al., Petitioners, v. CASE NUMBER SC d DCA Case No: 3D CELEBRTY CRUSES NC., Respondent. ON DSCRETONARY REVEW FROM THE THRD DSTRCT COURT OF APPEAL PETTONER'S BREF ON JURSDCTON Scott A. Wagner, Esq. Florida Bar Number Michael T. Moore, Esq. Florida Bar Number MOORE & COMPANY, P.A. Attorneys for Petitioners 355 Alhambra Circle #1100 Coral Gables, Florida (786) Telephone (786) Facsimile

2 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF AUTHORTES...ii STATEMENT OF CASE AND FACTS...1 SUMMARY OF ARGUMENT...2 ARGUMENT THS COURT SHOULD EXERCSE TS DSCRETONARY JURSDCTON N THS CASE, AS THE THRD DSTRCT'S OPNON CONFLCTS WTH SEVERAL DECSONS OF OTHER DSTRCT COURTS AND THE DECSON OF THE THRD DSTRCT S N EXPRESS AND DRECT CONFLCT WTH A DECSON FROM THS COURT...4 CONCLUSON...9 CERTFCATE OF SERVCE...10 CERTFCATE OF COMPLANCE...10

3 TABLE OF AUTHORTES Engle v. Liggett Group, nc., 954 So.2d 1246 (Fla. 2006)...2-3, 5-7, 9 Forehand v. Florida State Hosp., 89 F.3d 1562, 1566 (11th Cir. 1996)...5 Joseph v. Liberty Nat'l Bank, 873 So. 2d 384, 388 (Fla. 5th DCA 2004)...5 Kornberg v. Carnival Cruise Lines, 741 F.2d 1332 (11th Cir. 1984)...5 Lance v. Wade, 457 So. 2d 1008 (Fla. 1984)...2-4, 6, 9 Latman v. Costa Cruise Lines, N.V., 758 So. 2d 699 (Fla. 3d DCA 2000)...2, 5 Liggett Group nc. v. Engle, 853 So. 2d 434, 442 (Fla. 3d DCA 2003)...5 Mullen v. Treasure Chest Casino, 186 F.3d 620 (5th Cir. 1999)...5 Premier Cruise Lines, LTD., v. Picaut, 746 So. 2d 1132 (Fla. 5th DCA 1999)...5 Renaissance Cruises, nc. v. Glassman, 738 So. 2d 436 (Fla. 4th DCA 1999)...2, 5 Waters v. nternational Precious Metals, 172 F.R.D. 479; 1996 U.S. Dist. LEXS (S.D. Fla. 1996)...5, 7 11

4 STATEMENT OF CASE AND FACTS On November 14, 2012 the Third District Court issued an Opinion that denied the Petitioners the ability to aggregate certain elements of their claims against the Respondent in a class action lawsuit. The thrust of the putative class action, brought by ticketed passengers who sailed the same cruise aboard the Respondent's cruise liner SUMMT, was to certify only certain elements of their causes of action arising out of a material omission by the cruise line to its customers, to wit: that the cruise line failed to disclose material mechanical issues with its pod-propulsion system. The passengers sought to aggregate three discreet and essential issues in Phase of the litigation - (1) whether Celebrity failed to disclose a defect with its pod propulsion system, (2) whether it knew or should have known about it and (3) whether the fact omitted was material under the reliance standard for the FDUPTA and Misleading Advertising Claims (which employ an objective reliance standard of the reasonable consumer, not a subjective one). After these aggregate elements were tried for the universal class, Petitioners asked for Phase to be decertified for fact findings on subjective reliance (for the misrepresentation claim) and for damages which were individualized. As such, Phase would contain a majority of the universal and non-diverse elements to the Petitioners' claims for class wide determination and Phase would leave a limited amount of the elements for 1

5 individual fact finding, harmoniously serving the legal purpose of both Engle v. Liggett Group, nc., 954 So.2d 1246 (Fla. 2006) for Phase of the litigation and Lance v. Fade, 457 So. 2d 1008 (Fla. 1984) for Phase to the litigation. The Third District Court's Opinion denying certification on these limited issues directly conflicts with this Court's ruling in Engle v. Liggett Group, nc., 954 So.2d 1246 (Fla. 2006) and essentially eradicates its purpose and also contradicts other District Court holdings in Latman v. Costa Cruise Lines, N. V., 758 So. 2d 699 (Fla. 3d DCA 2000) and Renaissance Cruises, nc. v. Glassman, 738 So. 2d 436 (Fla. 4th DCA 1999). Petitioners timely filed the notice to invoke the discretionary jurisdiction of this Court. SUMMARY OF THE ARGUMENT Petitioners, a group of ticketed cruise line passengers from the same cruise, filed a claim against the cruise line Respondent that drew its genesis from the Respondent's omission of a material fact that duped the passengers into a cruise that was subsequently ruined as a result of the material omission. The action contained four causes of action - Violation of Florida's Deceptive and Unfair Trade Practices Act, Misleading Advertising, Negligent Misrepresentation and Fraudulent Misrepresentation. All four of the causes of action contain (1) misrepresentation of fact and (2) scienter as 2

6 common elements to the claims. The FDUTPA and Misleading Advertising Claims also contain objective elements of materiality and require no actual reliance. Only damages and subjective reliance (for just two of the claims) would be deferred to Phase of the litigation because of subjective and/or individualized reasons set forth in Lance, supra. Narrow class certification of this kind is permitted on the issues of whether the Respondent omitted the fact, whether the fact was objectively material (elements of Petitioners' FDUTPA and False Advertising Claims), and whether the Respondent knew or should have known of its omission of this material fact. See Engle v. Liggett Group, nc., 945 So. 2d 1246 (Fla. 2006) ("[w]hen appropriate... a claim or defense may be brought or maintained on behalf of a class concerning particular issues."); also see Fla. R. Civ. P (d)(4)(A). The lower court failed to adhere to the legal principles set forth in Engle and promulgated under Florida Rule of Civil Procedure 1.220(d)(4)(A) by failing to embrace the legal principle permitting limited class wide certification on a majority of the universal and non-diverse issues and by improperly disregarding Engle and focusing its sole attention to the principles of law set forth in the opinion of Lance v. Wade, 457 So. 2d 1008 (Fla. 1984). This Court should exercise its discretionary jurisdiction and accept the opportunity to (a) correct the lower court's decision and (b) to 3

7 clarify the harmonious product of the combination between Engle and Lance. ARGUMENT Petitioners seek to certify (a) whether Respondent omitted a material fact regarding its pod propulsion system (b) whether Respondent knew it omitted the fact, and (c) whether the fact was objectively material to the reasonable consumer. These elements amount to the majority of the elements of the Petitioners' claims and would be determined class wide during Phase of the litigation. A minority of the elements of the Petitioners' claims like subjective reliance for the concealment claim and damages on all claims would be deferred for Phase of the litigation, where the case would be decertified and proceed on those limited issues individually. Petitioners do not ask the Court for aggregation on a class wide basis of all elements of all their claims. Petitioners do not seek class-wide determination for subjective reliance on a class-wide basis, which would be legally impermissible. See Lance v. Wade, 457 So. 2d 1008 (Fla. 1984). Petitioners do not ask the Court to determine individual damages. d. Petitioners do not seek to aggregate a small minority of the issues and leave a larger majority for decertification. 4

8 Rather, Petitioners seek to certify a majority of the elements of its claims that are ripe for class wide determination under the principles set forth in Engle as well as Florida Rule of Civil Procedure Parsed certification on these limited issues is legally permissible and the correct vehicle for the action because it furthers the goals and policy of class action litigation which should be the primary function of the trial court. Latman v. Costa Cruise Lines, N. V., 758 So. 2d 699, (Fla. 3d DCA 2000); Renaissance Cruises, nc. v. Glassman, 738 So. 2d 436, (Fla. 4th DCA 1999); Mullen v. Treasure Chest Casino, 186 F.3d 620 (5th Cir. 1999); Kornberg v. Carnival Cruise Lines, 741 F.2d 1332 (11th Cir. 1984); Waters v. nternational Precious Metals, 172 F.R.D. 479; 1996 U.S. Dist. 384, 388 (Fla. 5th DCA 2004); Premier Cruise Lines, LTD., v. Picaut, 746 LEXS (S.D. Fla. 1996); Joseph v. Liberty Nat'l Bank, 873 So. 2d So. 2d 1132, 1999 Fla. App. LEXS 13969, *5-6, 24 Fla. Law W. at D 2423 (Fla. 5th DCA 1999). f Petitioners were to succeed on the class-wide issues, the class could then be decertified with regard to the remaining minority of elements of subjective reliance and damages. Forehand v. Florida State Hosp., 89 F.3d 1562, 1566 (11th Cir. 1996); Liggett Group nc. v. Engle, 853 So. 2d 434, 442 (Fla. 3d DCA 2003). f Plaintiffs failed on the class-wide issues, because they contain material elements of all claims, the case would be dismissed. 5

9 But to require each Petitioner to individually try a majority of the elements of the same universal and non-diverse elements to each of their claims perverts the purpose of class action litigation, creates duplicative litigation wearing on judicial economy, could result in inconsistent judgments, and chills access to the Court because the decision to move forward on one's own does not make fiscal sense. This is exactly why Engle carved out an exemption to Lance. Segregating phases of the litigation is the best and most logical avenue for the lawsuit to proceed. t is also the exact path Engle and Lance endorse. The lower court's failure to give credence to Lance in light of Engle conflict with Engle because a majority of issues - the ones sought for aggregation in Phase -- are universal and non-diverse; only a minority are individualized. When the lower court focused only on a small minority of individualized issues and did not lend any weight to the great majority of universal elements - the only ones sought for aggregation - it incorrectly narrowed the thrust of Engle in direct contravention to this Court's holding. Phase of the litigation would focus only on the individualized actions of the Respondent and whether the reasonable objective consumer would find Respondent's actions important. Phase would have no individualized focus on the passengers at all. The fact finding process would circle around Celebrity -- its acts of omitting a material fact, whether it knew 6

10 about that fact, and whether an objective consumer would find the fact material and important. Phase would never focus on each Petitioner's individual acts of reliance and damages. These phase elements - which make up a great majority of the Petitioner's claims, are best served on a class-wide basis. Waters v. nternational Precious Metals, 172 F.R.D. 479; 1996 U.S. Dist. LEXS (S.D. Fla. 1996). The absolute critical part of this analysis is that a limited class-wide proceeding on issues of omission, scienter, and objective materiality is perfectly situated and capable of producing common answers suitable to drive the resolution of litigation -- i.e. did Celebrity omit a material fact that it knew about and would an objective consumer find it important? Because the Petitioners were all passengers aboard the same cruise, the class members have suffered the same mjury. The lower court flatly erred and abused its discretion because it focused all of its attention only on the limited subjective elements of the Petitioners' claims, which amount to only a small minority of the elements, thereby improperly limiting the scope of Engle. The lower court should have focused on the majority of elements which were ripe for universal class determination. For instance, the lower court considered as material how many people (a) saw Celebrity advertisements, (b) relied upon the advertisements in 7

11 deciding to purchase a ticket for the Cruise, (c) did not have prior actual constructive k nowledge of the problems with the propulsion system, (d) would not have purchased the ticket had they known about the problems, and (e) thought the Cruise was worthless. Every single one of those questions deals with either (a) subjective reliance or (b) damages. These minority of the issues were not requested for aggregation and would be held at bay for Phase of the litigation. n the meantime a majority of issues would be ripe for aggregation in Phase. Petitioners never put those issues before the Court for certification; rather, Petitioners asked the Court to certify only the questions of omission, scienter, and/or objective materiality. Subjective reliance, where necessary, and damages were for Phase. Seeing, relying, having prior knowledge, whether the purchase would have been made, and whether the cruise was completely worthless are individualized issues of subjective reliance and damages that would remain for Phase of the litigation, not Phase. Phase is focused on the liability issues surrounding what Celebrity did (omission, scienter and objective materiality), not what the Plaintiffs did. Another example occurred when the lower court ruled on the issue of commonality because the lower court erroneously held that class certification will involve analysis of the precise language of each advertisement seen by each class member, each class member's knowledge 8

12 of prior pod problems, each class member's discussions with travel agents, and the value derived by each class member from the Cruise. But this is clear error and abuse of discretion because those issues go to subjective reliance and individualized damages - issues the Plaintiffs do not ask for the court to aggregate - and for which make up just a small minority of the overall elements of the Petitioners' claims. These examples of where the lower court incorrectly focused on a minority of elements that were not requested for certification and were not material to the Phase certification analysis calls on this Court to exercise its discretionary jurisdiction, reverse the ruling and correctly set forth the meaning and pen an explanation of how Engle and Lance work harmoniously with each other. CONCLUSON This Court has discretionary jurisdiction to review the district court's decision. Petitioners respectfully request this court exercise its jurisdiction to consider the merits of Petitioners' argument and resolve the conflict by quashing the instant decision of the lower court. 9

13 CERTFCATE OF SERVCE HEREBY CERTFY that a true and accurate copy of the foregoing Petition has been furnished via U.S. Mail and to Sanford Bohrer and Scott Ponce at Holland & Knight, 701 Brickell Avenue, #3000, Miami, FL and via Federal Express and to the Florida Supreme Court, Attn.: Clerk's Office, 500 South Duval Street, Tallahassee, Florida on this 31st day of January, ttorneys for Peti i ner Scott A. Wagner, sq. Florida Bar Number Michael T. Moore, Esq. Florida Bar Number MOORE & COMPANY, P.A. Attorneys for Petitioners 355 Alhambra Circle #1100 Coral Gables, Florida (786) Telephone (786) Facsimile CERTFCATE OF COMPLANCE HEREBY CERTFY that this brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2), i.e. Times New Roman 14 pt. By: 1