Ohio Supreme Court Relies on Schwartz, Silverman in Rejecting No-Injury Class Actions

The Ohio Supreme Court has relied upon a law review article authored by Shook Partners Victor E. Schwartz and Cary Silverman in determining that courts cannot certify class actions that include uninjured members. It also adopted arguments they made in an amicus brief filed on behalf of several national and state business and civil justice groups.

The decision reverses a trial court’s certification of a class action that included all consumers who purchased vehicles from a dealership by signing a contract that included an unenforceable arbitration provision. Despite a lack of evidence that any class member aside from the representative had a dispute with the dealership or had experienced any injury, the trial court found it had discretion to award each consumer $200—a result contrary to Ohio’s consumer protection law, which authorizes statutory damages only for individual claims. An intermediate appellate court affirmed.

In a 6-1 decision authored by Chief Justice O’Connor, the Ohio Supreme Court held that unless all members of a plaintiff class have suffered injuries as a result of the conduct challenged in the suit, the class fails to meet the predominance standard required for class certification. Quoting Schwartz and Silverman’s article, Common Sense Construction of Consumer Protection Acts, the court recognized that “[p]erhaps the most basic requirement to bring a lawsuit is that the plaintiff must suffer some injury. Apart from a showing of wrongful conduct and causation, proof of actual harm to the plaintiff has been an indispensable part of civil actions.” For that reason, the court held that “all members of a class in class action litigation alleging violations of the [state’s consumer protection law] must have suffered injury as a result of the conduct challenged in the suit.”