Armstrong v. Costco Wholesale Corporation et al

MEMORANDUM & ORDER re Belfiore v. Procter & Gamble Co., 14-CV-4090. Plaintiff's motion to certify the class and defendant's motion to deny class certification are stayed. Discovery is stayed. The issue of an appropriate definition of "flushable" and related issues are respectfully referred to the Federal Trade Commission. The Clerk of the Court is directed to serve three copies of this memorandum and order on the Secretary of the Federal Trade Commission. Ordered

37 Cited authorities

Gasperini v. Center for Humanities, Inc.
518 U.S. 415 (1996) Cited 2,386 times
Holding that district courts have the "primary responsibility" for applying the state-law excessiveness standard because they have "the unique opportunity to consider the evidence in the living courtroom context, while appellate judges see only the cold paper record." (cleaned up)
Shady Grove Orthopedic v. Allstate Ins. Co.
559 U.S. 393 (2010) Cited 1,204 times 45 Legal Analyses
Holding that rules of civil procedure allowing multiple claims to be litigated together "neither change plaintiffs' separate entitlements to relief nor abridge defendants' rights; they alter only how the claims are processed"
Erie R. Co. v. Tompkins
304 U.S. 64 (1938) Cited 20,726 times 18 Legal Analyses
Holding that state law governs substantive issues and federal law governs procedural issues
Walker v. Armco Steel Corp.
446 U.S. 740 (1980) Cited 884 times 2 Legal Analyses
Holding that Oklahoma rules concerning service of process must be applied by federal courts adjudicating a dispute based on Oklahoma law
Pension Fund v. Marine Bank
85 N.Y.2d 20 (N.Y. 1995) Cited 1,537 times 1 Legal Analyses
Holding that the definition of deceptive acts and practices under GBL § 349 includes "representations or omissions"
Burlington Northern R. Co. v. Woods
480 U.S. 1 (1987) Cited 358 times 1 Legal Analyses
Holding a conflict exists where, "when fairly construed, the scope of [a Rule] is ‘sufficiently broad’ to cause a ‘direct collision’ with the state law or, implicitly, to ‘control the issue’ before the court, thereby leaving no room for the operation of that law"
Small v. Lorillard Tobacco Co.
94 N.Y.2d 43 (N.Y. 1999) Cited 706 times 7 Legal Analyses
Holding that where the underlying tort theory fails, "there is no independent tort to provide a basis for liability under . . . concert of action, conspiracy, and aiding and abetting theories"
McLaughlin v. Tobacco Co.
522 F.3d 215 (2d Cir. 2008) Cited 306 times 17 Legal Analyses
Holding that an aggregate determination that “bears little or no relationship to the amount of economic harm actually caused” violates the Rules Enabling Act
Spagnola v. Chubb Corp.
574 F.3d 64 (2d Cir. 2009) Cited 267 times 1 Legal Analyses
Finding no injury where plaintiff “does not claim that he did not receive adequate insurance coverage or that he did not contract for the coverage he received”
Maurizio v. Goldsmith
230 F.3d 518 (2d Cir. 2000) Cited 328 times
Holding that plaintiff cannot recover under GBL § 349 absent allegations that "the plaintiff has been injured"
Rule 23 - Class Actions
Fed. R. Civ. P. 23 Cited 35,882 times 1250 Legal Analyses
Holding that, to certify a class, the court must find that "questions of law or fact common to class members predominate over any questions affecting only individual members"
Section 349 - Deceptive acts and practices unlawful
N.Y. Gen. Bus. Law § 349 Cited 4,954 times 110 Legal Analyses
Granting "any person who has been injured by reason of any violation of this section" the right to "bring an action in his own name"
Section 45 - Unfair methods of competition unlawful; prevention by Commission
15 U.S.C. § 45 Cited 3,915 times 586 Legal Analyses
Providing court-ordered monetary penalties against anyone who engages in conduct previously identified as prohibited in a final cease and desist order, but only if the violator acted with "actual knowledge that such act or practice is unfair or deceptive"
Section 2301 - Definitions
15 U.S.C. § 2301 Cited 2,566 times 36 Legal Analyses
Including as consumers those entitled to enforce a warranty "under applicable State law"
Section 2072 - Rules of procedure and evidence; power to prescribe
28 U.S.C. § 2072 Cited 1,836 times 37 Legal Analyses
Granting the Supreme Court, not the parties, authority to "prescribe general rules of practice and procedure" for federal district court cases
Section 5106 - Fair claims settlement
N.Y. Ins. Law § 5106 Cited 1,316 times 1 Legal Analyses
(a) Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained. If proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied. All overdue payments shall bear interest at the rate of two percent per month. If a valid claim
Section 350 - False advertising unlawful
N.Y. Gen. Bus. Law § 350 Cited 1,038 times 25 Legal Analyses
Prohibiting false advertising
Section 901 - Prerequisites to a class action
N.Y. CPLR 901 Cited 997 times 8 Legal Analyses
Providing that "an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action" unless the "statute creating or imposing penalty, or minimum measure of recovery specifically authorizes the recovery thereof in a class action"
Section 646.605 - Definitions for ORS 336.184 and 646.605 to 646.652
ORS § 646.605 Cited 107 times
Defining willfulness

Armstrong v. Costco Wholesale Corporation et al

37 Cited authorities

Holding that district courts have the "primary responsibility" for applying the state-law excessiveness standard because they have "the unique opportunity to consider the evidence in the living courtroom context, while appellate judges see only the cold paper record." (cleaned up)

Holding that rules of civil procedure allowing multiple claims to be litigated together "neither change plaintiffs' separate entitlements to relief nor abridge defendants' rights; they alter only how the claims are processed"

Holding that state law governs substantive issues and federal law governs procedural issues

Holding that Oklahoma rules concerning service of process must be applied by federal courts adjudicating a dispute based on Oklahoma law

Holding that the definition of deceptive acts and practices under GBL § 349 includes "representations or omissions"

Holding a conflict exists where, "when fairly construed, the scope of [a Rule] is ‘sufficiently broad’ to cause a ‘direct collision’ with the state law or, implicitly, to ‘control the issue’ before the court, thereby leaving no room for the operation of that law"

Holding that where the underlying tort theory fails, "there is no independent tort to provide a basis for liability under . . . concert of action, conspiracy, and aiding and abetting theories"

Holding that an aggregate determination that “bears little or no relationship to the amount of economic harm actually caused” violates the Rules Enabling Act

Finding no injury where plaintiff “does not claim that he did not receive adequate insurance coverage or that he did not contract for the coverage he received”

Holding that plaintiff cannot recover under GBL § 349 absent allegations that "the plaintiff has been injured"

Holding that, to certify a class, the court must find that "questions of law or fact common to class members predominate over any questions affecting only individual members"

Granting "any person who has been injured by reason of any violation of this section" the right to "bring an action in his own name"

Providing court-ordered monetary penalties against anyone who engages in conduct previously identified as prohibited in a final cease and desist order, but only if the violator acted with "actual knowledge that such act or practice is unfair or deceptive"

Including as consumers those entitled to enforce a warranty "under applicable State law"

Granting the Supreme Court, not the parties, authority to "prescribe general rules of practice and procedure" for federal district court cases

Prohibiting false advertising

Providing that "an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action" unless the "statute creating or imposing penalty, or minimum measure of recovery specifically authorizes the recovery thereof in a class action"

Defining willfulness