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October 22, 2015 by Katrina CarrollDownload PDF


"I've been ripped off! Can I represent consumers in other states?"Katrina  Carroll

Can a resident of Illinois who purchased a falsely-advertised product represent a class of people who bought that product in California? And if yes, which state’s law applies? Illinois, California, neither or both? These questions arise often in class litigation and the answers are complex and depend heavily on the nature of the case and the specific state laws involved.

In the area of consumer fraud, most states have consumer protection laws aimed at broadly prohibiting deceptive trade practices, including false advertising. In general, to succeed on a consumer fraud claim, a plaintiff must show that a defendant committed some kind of deceptive or unfair act or practice and plaintiff was injured as a result.  But that is not all. Many states also varied showings of “reliance” and this is where potential problems arise.  

Some state laws require that plaintiff prove that defendant committed the deception intending for plaintiff to rely on it.  Other states require each plaintiff to show that they specifically relied on defendant’s deception. On their face, the competing reliance requirements seem like pretty minor differences in semantics. But, defendants usually argue that they are not.

 Defendants often argue that statutes requiring showings of a plaintiff’s reliance (as opposed to focusing on proof of defendant’s intent that plaintiff rely) require such unique individual proof that they make class actions virtually impossible. For example, in a false advertising case, a defendant may argue that every single plaintiff would have to prove which of many potentially different ads they saw, where they saw them (internet, t.v., etc.) and when they saw them.

But, have no fear, consumers! Though we sometimes try to avoid bringing consumer fraud claims under the most onerous state laws requiring individual proof of reliance, we are still able to pursue class actions under many state laws.  More and more, courts are becoming more receptive to multi-state groupings where state laws are substantially similar.  One example is the Seventh Circuit’s recent decision affirming certification of a multi-state consumer fraud class under the laws of California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington in Mullins v. Direct Digital, LLC, No. 13 CV 1829, 2014 WL 5461903, at *4 (N.D. Ill. Sept. 30, 2014), aff’d, 795 F.3d 654, 674 (7th Cir. 2015). While these ten state statutes are not verbatim identical, they share many common characteristics, and none of them require any showing of reliance.

Also, since these laws are largely similar, there is no conflict in the various laws that requires the court’s analysis in deciding to apply one state’s laws over another’s.  Courts are especially receptive to finding multi-state class actions proper where the case involves uniform misrepresentations made in written ads, alleged to affect a large number of consumers.

So can an Illinois consumer plaintiff represent a California resident? The answer just may be yes!