Metropolitan News-Enterprise


Friday, October 9, 2020


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Ninth Circuit Restores Class Allegations in Suit Claiming Labels on Bats Mislead


By a MetNews Staff Writer


A District Court judge erred in striking class allegations in an action against a Thousand Oaks-based manufacturer of sporting equipment that, according to the complaint, misstates the weight of its baseball bats, the  Ninth U.S. Circuit Court of Appeals held yesterday, saying it was too early to declare that there are no common questions or that individual issues predominate because there had not yet been discovery.

The memorandum opinion, by a three-judge panel that acted on an interlocutory appeal, vacated an order by Judge Dale S. Fischer of the Central District of California.

Judges Daniel Aaron Bress and Andrew D. Hurwitz, along with Senior Judge Andrew J. Kleinfeld comprised the panel.



Abuse of Discretion

“Although a district court has discretion to limit pre-certification discovery, it abuses this discretion if it unreasonably deprives the plaintiff of an opportunity to develop his claims through discovery,” the panel said.

By striking class allegations in advance of discovery, they wrote, Fischer abused her discretion.

Plaintiff Ricky Wisdom—who bought a bat that weighed more than the label indicated—alleged unjust enrichment. The opinion says:

“Wisdom alleged that all of the mislabeled bat models were mislabeled in similar ways, causing similar injury to every member of the class. Depending on how discovery unfolds, it may become  clear that the consequences of using a mislabeled bat, the value to a consumer of  buying a correctly labeled bat, and the degree to which Easton was unjustly enriched  through mislabeling are issues susceptible to class treatment….At this  early stage, it was premature for the lower court to conclude that individual questions  predominate.”

Consumer Statutes

Wisdom also sued under California’s Wisdom’s class allegations for violations of California’s False Advertising Law (“FAL”) and the Unfair Competition Law (“UCL”). The panel declared:

“Whether a business practice is deceptive or misleading under the FAL and UCL is governed by the reasonable consumer test, which requires a probability that a significant portion of the general consuming public or of targeted customers, acting reasonably, could be misled….Individualized proof of reliance and injury is not required….The district court’s ruling that individual questions predominate was therefore premature.”

It was an abuse of discretion, the panel said, for Fischer to dismiss without leave to amend.

The case is Wisdom v. Easton Diamond Sports, LLC, 19-55742.


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