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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FT. LAUDERDALE DIVISION CASE NO. 07-61234-CIV-DIMITROULEAS ARNOLD ROSEN, Class Representative; ARTHUR GARTER; JEROME MYER; SUSAN SADETSKY, MILLIE SCHWARTZ; MARLENE SHUPACK; JULIE TREGERMAN; SHIRLEY TROUT; CAROLA ZANELLI, Plaintiffs, vs. J.M. AUTO INC. d/b/a J.M. LEXUS; SOUTHEAST TOYOTA DISTRIBUTORS L.L.C.; J.M. FAMILY ENTERPRISES INC., LEXUS U.S.A., and TOYOTA MOTOR SALES U.S.A., INC., Defendants. _________________________________________/ DEFENDANTS MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS MOTION FOR CLASS CERTIFICATION The Defendants, TOYOTA MOTOR SALES U.S.A., INC., LEXUS U.S.A., JM AUTO, INC. d/b/a JM LEXUS, SOUTHEAST TOYOTA DISTRIBUTORS L.L.C., and JM FAMILY ENTERPRISES, INC. (collectively Defendants), hereby file their Memorandum of Law in Opposition to Plaintiffs September 24, 2008 Motion for Class Certification and state as follows: STATEMENT OF PROCEEDINGS This is an action arising out of an alleged design defect in the occupant classification system (OCS) in the 2007 Lexus ES 350. Specifically, in their Complaint, which is principally based on Defendants alleged violation of Floridas Deceptive and Unfair Trade Practices Act (FDUPTA), but also includes claims for breach of warranty and equitable relief, Plaintiffs allege that, in some circumstances, the OCS utilized to determine whether persons in the right front passenger seat of certain 2007 Lexus ES 350 vehicles are properly positioned and of sufficient stature to benefit from,

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rather than be injured by, the deployment of an airbag, does not properly classify those occupants and, therefore, may suppress deployment of the right front passenger seat airbag in an accident.1 But see Affidavit of James Benedict, PhD., dated October 10, 2008 (Benedict Affidavit), attached hereto as Exhibit B (wherein Dr. Benedict describes the myriad of circumstances under which the deployment of an airbag can actually cause, rather than prevent, serious injuries and/or death to an occupant of the right front seat passenger). Plaintiffs now have filed a Motion for Class Certification (Plaintiffs Motion), which is pending before the Court. INTRODUCTION: THE EVOLUTION OF FMVSS 208 In order to properly evaluate Plaintiffs Motion, this Court needs to first have an understanding of the evolution and purpose of the federal regulatory scheme relating to the design, manufacture and performance of airbags. The National Highway Transportation Safety

Administration (NHTSA), an agency of the Department of Transportation (DOT), is the arm of the federal government vested with the authority to promulgate, administer and enforce rules and regulations relating to motor vehicle safety in the United States. Those rules and regulations include Federal Motor Vehicle Safety Standard (FMVSS) 208, which today mandates, among other things, that motor vehicle manufacturers incorporate various primary (seat belt) and supplemental (airbag) restraint systems in all of the passenger vehicles that they market and sell in the United States. FMVSS 208 also establishes certain mandatory performance criteria that those systems must satisfy
Like their Complaint, Plaintiffs Motion is replete with broad, unsubstantiated allegations regarding the purported existence and consequences of the alleged defect in the OCS. See, e.g., Plaintiffs Motion at pp. 2 and 3 (wherein Plaintiffs boldly state, without any evidence, that the alleged defect has created an unreasonably dangerous situation for a right front seat passenger and substantially reduce[s] the defective vehicles crashworthiness). The fact is, however, that it has never been established that there has been a single accident, where an occupant of the right front passenger seat in a 2007 Lexus ES 350 has been injured or killed as a result of the alleged defect in the OCS that forms the basis for Plaintiffs Complaint. See Defendants April 24, 2008 Responses to Plaintiffs Second Request for Production. See also Affidavit of Jeffery Pearson, dated October 10, 2008 (Pearson Affidavit) attached hereto as Exhibit A at pp. 6 and 7, 18, 20 and 21 (wherein Mr. Pearson states that the OCS in the 2007 Lexus ES 350 is state of the art, fully complie[s] with the rigorous static and dynamic (i.e., crash test) criteria mandated by FMVSS 208, and is not defective or unreasonably dangerous). 2
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prior to a vehicles release and sale in the United States. See Pearson Affidavit at p. 3, 8. See also Benedict Affidavit at p. 7, 20. The mandatory requirements of FMVSS 208 have evolved over time to reflect (or necessitate) improvements and advancements in the technologies developed by and/or available to automobile manufacturers and their suppliers. See Benedict Affidavit. Similarly, the overriding safety and public policy interests that FMVSS 208 seeks to promote also have evolved from the initial version of that standard, which merely required that automobiles sold in the United States be equipped with lap belts, to the most recent version of the standard, which is at the core of Plaintiffs Complaint. Simply stated, the current version of FMVSS 208 is intended and designed to provide improved frontal crash protection for vehicle occupants of different sizes, belted and unbelted, while, at the same time, creating less risk of serious air bag-induced injuries . . . particularly for [out of position occupants], small women and young children. See FMVSS 208; Occupant Crash Protection; Fed. Reg., Vol. 65, No. 93 (May 12, 2000)(emphasis added). Suffice it to say, safety restraint technologies have come a long way since the introduction of lap belts. In fact, by the 1970s, automobile manufacturers already had begun experimenting with ways to supplement the safety afforded by those traditional restraint systems in higher speed frontal collisions, including the use of airbags. However, it was not until September, 1993, that NHTSA, through FMVSS 208, mandated that manufacturers incorporate front airbags into all passenger vehicles sold in the United States, after September 1, 1997. Id. at Appendix B, p. 30741. In doing so, NHTSA also established certain mandatory testing and performance criteria for those airbag systems, which required vehicles offered for sale in the United States to meet or exceed the standards in FMVSS 208 (e.g., that, in frontal impacts with a rigid barrier at speeds up to 30 mph, the vehicles airbags protected belted and unbelted dummies, representing a biofidelic mean of the adult
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male population, from head, neck and femur loads that exceeded the specified injury criteria). See Pearson Affidavit at p. 3, 8. Almost immediately after the promulgation of the 1993 version of FMVSS 208, however, NHTSA began to realize that, while then existing airbag technologies helped to significantly reduce the risk of serious injury or death to most belted and unbelted front seat passengers, particularly adult males and females of average to large stature in moderate to severe frontal impact collisions, the power of a deploying airbag created a separate risk of injury and death to certain at risk occupants in some crashes. See Benedict Affidavit at pp. 4 and 5, 11-13. Further analysis revealed that those occupants generally fell into one of three categories: (1) small children riding in the front seat, including those in front or rear facing car seats; (2) belted or unbelted short or smallstatured women; and (3) belted or unbelted occupants who were out of position (i.e., too close to the airbag deployment module) at the moment of deployment, either because they were too close to begin with or were thrown forward during the accident sequence, such that they were more likely to be injured by, than benefit from, the deployment of an airbag. See Benedict Affidavit. In fact, in a June, 2001 report to Congress, the General Accounting Office noted that, while an estimated 6,856 lives [had] been saved by airbags [in the five (5) year period since NHTSA mandated their inclusion in all passenger vehicles] 175 fatalities primarily children and small women [had] been attributed to the deployment of an airbag in relatively low speed crashes as of April, 2001. GAO Report entitled VEHICLE SAFETY: Technologies, Challenges and Research and Development Expenditures for Advanced Airbags (June, 2001), attached hereto as Exhibit C, at p. 1 (emphasis added). These injuries and deaths were attributable, in part, to the fact that the so-called first generation airbags typically deployed with a great deal of non-variable force and did so in all accidents where the air bag sensor system predicted that the impact speed would
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exceed a pre-determined threshold. Stated otherwise, conventional or single stage air bags deployed/fired at the same speed and with the same degree of force, irrespective of who was seated in the front seat, where they were seated, and the level of supplemental protection actually required (i.e., the relative degrees of crash severity above the pre-programmed threshold). Based on this mounting injury data, Congress passed the Transportation Equity Act for the 21st Century, in June, 1998, which, among other things, directed the DOT, through NHTSA, to promulgate rules and regulations that would require automobile manufacturers to devise airbag systems whose deployment and rate of deployment were more closely tailored to the severity of the crash and the size and/or position of the driver and right front seat passenger. Two years later (i.e., on May 12, 2000), NHTSA amended FMVSS 208. The amendments mandated that

manufacturers begin installing these advanced airbag technologies on their vehicles no later than September 1, 2003 and that they install them on all passenger vehicles sold in the United States, after September 1, 2007. See Benedict Affidavit at p. 4, 10. As part of those amendments, NHTSA also established new testing criteria that vehicles were required to satisfy in order to comply with FMVSS 208 (as amended). For example, while the pre-2000 version of FMVSS 208 specified the use of belted and unbelted crash dummies that represented average-sized (i.e., 50th percentile) adult males in the driver and right front passenger seats in frontal impact collisions, the amended version requires that manufacturers also test using dummies that simulate infants, 3 and 6 year old children, and the 5th percentile female (i.e., a dummy simulating a 4 11 tall female weighing 109 pounds); and that they replicate a variety of different impact scenarios. See Pearson Affidavit at p. 3, 8. See also Benedict Affidavit at p. 7, 20. FMVSS 208 also requires the airbag systems in vehicles offered for sale in the United States to comply with the performance criteria associated with a wide array of static tests. Id. See also
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Pearson Affidavit at p. 3, 8. These tests, which utilize dummy equivalents of infants, 12 month old, 3 yr. old and 6 yr. old children and 5th percentile females in various positions, are designed to ensure that the airbag system activates and/or deploys at a rate that minimizes the risk of deployment-related injuries or death, while, at the same time, maximizing the supplemental injury reduction benefits of the airbag or, alternatively, that it suppresses air bag deployment in those instances where, either as a result of the stature or position of the right front seat passenger, deployment would likely cause more harm than it would prevent.2 Id. See also Benedict Affidavit at p. 8, 24. Manufacturers and their suppliers ultimately developed three principal types of occupant classification systems to satisfy FMVSS 208s mandatory performance criteria: (1) a pressure sensitive bladder; (2) a weight based sensor; and (3) a pattern based sensor. The pressure sensitive bladder system, as its name suggests, relies on a fluid or air-filled pad/mat placed directly under the seat cushion, which, through the use of calibrated software, interprets applied pressures and seat belt loads to determine occupant weight and position for the purpose of determining whether to activate or suppress the airbag. The weight based system utilizes electro-mechanical load cells mounted to the bottom of the seat and/or attached to the seat track and frame, which are designed to weigh the seat occupant, determine the occupants position, and activate or suppress the airbag accordingly. The final method (i.e., the pattern based senor) utilizes electrical signals generated by force applied to a grid placed under the seat cover and sophisticated software to classify the occupant of the right front passenger seat by weight and position and then deploy or suppress the airbag, as required.

Plaintiffs grossly oversimplify and understate the purpose and requirements of FMVSS 208 on page 2 of their Motion by suggesting that it focuses exclusively on the weight of the passenger in the right front seat. Plaintiffs Motion at p. 2 (FMVSS 208 mandates that the front passenger-seat airbag must be activated and operational when an individual who exceeds a specific weight is present in the seat). Indeed, if weight activation, independent of occupant position, were the only requirement of FMVSS 208, which plainly it is not, manufacturers would not be required to develop and incorporate the highly sophisticated occupant classification systems at issue in this case. See Benedict Affidavit at pp. 7 and 8, 20-24. 6

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THE OCS IN THE 2007 LEXUS ES 350 The 2007 Lexus ES 350 utilizes one of the three occupant classification systems recognized by NHTSA, namely the pressure sensitive bladder. See Supplemental Affidavit of Lance Lewis, dated October 10, 2008 (Lewis Affidavit) at p. 2, 6, attached hereto as Exhibit D (wherein Mr. Lewis confirms that every model year 2007 Lexus ES 350 comes equipped with [a] front passenger [OCS], which includes the occupant classification ECU [Electronic Control Unit], [an] occupant classification sensor (bladder mat and pressure sensor), seat belt tension sensor, seat belt buckle switch, AIRBAG ON/OFF indicator light, and airbag sensor assembly).3 See also Fed. Reg. Vol. 65, No. 93 (May 12, 2000) at p. 30743. It also is undisputed that extensive testing of that system was conducted to ensure compliance with FMVSS 208. Pearson Affidavit at p. 7, 20. That testing demonstrated that the 2007 Lexus ES 350 satisfied the static and dynamic test and performance criteria in FMVSS 208, including the tests relating to the OCS (i.e., that occupants in the vehicles right front passenger seat, who are properly positioned and of a sufficient stature to benefit from an airbag will receive one, while those who are not of sufficient stature and/or were out of position, such that they likely would be injured by the deployment of an airbag, will not). Id. ARGUMENT Rule 23 of the Federal Rules of Civil Procedure, which governs the pleading and prosecution of class action complaints in federal court, makes it clear that a party seeking class certification bears the initial burden of establishing that: (1) the putative class is so numerous that joinder of all

On p. 6 of their Motion, Plaintiffs, perhaps inadvertently, suggest that every 2007 Lexus ES 350 is equipped with the identical OCS that is found in Plaintiffs vehicles. That is not the case. The 2007 Lexus ES 350 was launched in 2006. See Lewis Affidavit at p. 2, 6. However, on April 18, 2007, TMC made a running change, which modified the OSC in the 2007 Lexus ES 350, beginning with VIN# JTHBJ46G372124651. Id. at 7. Moreover, on July 2, 2007, TMC released TSIB EL011-07, which was intended to and did address the few consumer comments regarding the OSC that it had received from owners of vehicles manufactured prior to the date of the running change. Id. at 8. Significantly, however, the vast majority of 2007 Lexus ES 350 owners did not request or require that the work contemplated by TSIB EL011-07 be performed on their vehicle either before or after the issuance of that TSIB. 7

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members is impracticable (numerosity); (2) there are questions of law or fact that are common to the class (commonality); (3) the class representatives claims are typical of the claims of the class (typicality); and (4) the movant will fairly and adequately protect the interests of the class (adequacy). Fed. R. Civ. P. 23(a). See also Sandlin v. Shapiro & Fishman, 168 F.R.D. 662 (M.D. Fla. 1996)(movant for class certification bears a strict burden of persuasion with respect to each of the elements of Rule 23). In addition, the movant must demonstrate that the purported class falls within one of the categories set forth in Rule 23(b). As a general rule, a movants failure to satisfy his burden with respect to any of Rule 23s elements is fatal to a motion for class certification. See, e.g., Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 721, n. 2 (11th Cir. 1987), cert. denied, 485 U.S. 959 (1988); Klay v. Humana, 382 F.3d 1241 (11th Cir. 2004); Jones v. Jeld-Wen, Inc., 250 F.R.D. 685 (S.D. Fla. 2008). See also Amchem Products, Inc. v. Windsor, 521 U.S. 591(1997)(class certification requires a searching inquiry into, and strict compliance with, each element of Rule 23); Brooks v. Southern Bell, 133 F.R.D. 54, 56 (S.D. Fla. 1990). Moreover, it is equally well-established that, in deciding the propriety of class certification, a district court is permitted to look beyond the pleadings. See, e.g., Jones, 250 F.R.D. at 692 (citing Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir. 1992) for the proposition that it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question). Application of the foregoing principles to the record evidence in the instant case affirmatively and conclusively demonstrates that Plaintiffs have not met their heavy burden under Rule 23, in that, among other things, Plaintiffs have not adequately defined the putative class, nor have they demonstrated the numerosity, commonality, and typicality that Rule 23(a) requires to certify a class. Moreover, Plaintiffs have failed to discharge their burden of establishing that what
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they contend to be common issues of law and fact, if any, predominate over the individualized claims and defenses that are unique to their claims or that a class action is the superior means of seeking redress for the alleged defect at issue in this action, as required by Rule 23(b)(3).4 Accordingly, this Court should deny Plaintiffs Motion, as a matter of law. Plaintiffs Class Definition Is Fatally Deficient Federal courts, including courts in the Southern District of Florida, consistently have held that, prior to analyzing whether a movant for class certification has discharged its obligations under Rule 23(a) and (b), a district court must determine whether the class definition is adequate. See, e.g., Jones, 250 F.R.D. at 691, 692; Perez v. Metabolife Intl, Inc., 218 F.R.D. 262, 269 (S.D. Fla. 2003); Mauldin v. Walmart Stores, Inc., 2002 WL 2022334 at *5 n. 2 (N.D. Ga. 2002)(noting that, although adequacy of the class definition may be considered part of the numerosity requirement, most courts treat it as a separate question). See also ONeill v. The Home Depot U.S.A., Inc., Case No. 05-61931CIV-ALTONOGA (S.D. Fla. Dec. 27, 2006)(Order Denying Motion for Class Certification, attached hereto as Exhibit E). In doing so, these courts recognize that [a] vague class definition portends significant manageability problems for the court. Rink v. Cheminova, 203 F.R.D. 648, 660 (M.D. Fla. 2001). See also Jones, 250 F.R.D. at 692. In their Complaint and Motion, Plaintiffs define the class of persons they seek to represent as: Every owner and lessee of a 2007 Lexus ES 350 who purchased or leased the vehicle in Florida.

On page 27 of their Motion, Plaintiffs boldly assert that a class action is superior to allowing individual consumers to decide whether and, if so, in what forum to pursue any legal remedies they may have relating to their 2007 Lexus ES 350, because there ostensibly is a relatively small amount in controversy relative to the extreme cost that purportedly would accompany proceed[ing] against a large corporation. In doing so, however, Plaintiffs completely ignore the administrative remedies available under Floridas Lemon Law, i.e., Section 681.10, et seq., Florida Statutes, which provides a highly efficient and effective means for resolving consumer complaints involving alleged non-conformities in vehicles at no cost to the consumer. Moreover, as a further incentive to accessing that administrative remedy, the Lemon Law expressly provides for an award of attorneys fees and other monetary and equitable relief to a prevailing consumer. Section 681.11(1), Florida Statutes. 9

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Plaintiffs Motion at p. 1(emphasis added). See also Complaint at p. 8, 29. That definition falls woefully short of the mark, with respect to Plaintiffs obligation to precisely and adequately define the class, in one or all of the following material respects: 1. It encompasses Florida consumers who purchased 2007 Lexus ES 350 vehicles that were manufactured from April, 2007 to September, 2007 and, therefore, do not contain the part, which, upon information and belief, forms the basis for Plaintiffs Complaint (i.e., Part No. 89952-0W010); 2. It includes persons and/or entities who purchased a 2007 Lexus ES 350 in the resale market and, therefore, by definition, benefitted from, rather than were damaged by, any purported diminution-in-value attributable to the allegedly defective OCS (i.e., the cornerstone of Plaintiffs damage claim); 3. It includes purchasers of the subject vehicles, who, for reasons wholly unrelated to any alleged defect in the OCS, traded their 2007 Lexus ES 350 in for another vehicle and, therefore, by definition, did not suffer the purported diminution-in-value that is the focal point of Plaintiffs damage claim; 4. It includes lessees, who, like Mr. Rosen, are contractually precluded from participating in a class action and, instead, are obligated to arbitrate any and all tort, contract, statutory and equitable claims they may have relating to complaints about their vehicle, by virtue of the plain and unambiguous terms and conditions of their Lease Agreements;5 5. It includes lessees, who, by definition, do not have the same rights or interests as the owners of the subject vehicle (e.g., various, as yet unidentified and unnamed commercial lending institutions and/or leasing companies), in that, among other things, the lessees have a fixed lease price, which is all they will ever have to pay, whereas, if the Plaintiffs theories of liability (and damages) are correct, which Defendants deny, the lessor, not the lessee, stands to be damaged at least to the extent of any alleged diminution-in-value;

Although Mr. Rosen has had possession of his Lease Agreements from the outset of this litigation, the undersigned first received a copy of them on October 7, 2008. In executing those Leases, Mr. Rosen voluntarily agreed to, among other things, an arbitration provision, which, by its express terms, applies to all "claims in contract, tort, pursuant to statute, regulation, ordinance or in equity . . . against [JM Lexus] . . . or against any third party providing any product or service in connection with the Lease that [Rosen] name[s] as a co-defendant in any action against any of the foregoing." See Leases between JM Lexus and Arnold Rosen, dated June 12, 2006 and June 15, 2006 (collectively Lease Agreements), attached hereto as Composite Exhibit F, at 21 and 47. The arbitration provision further "prohibit[s] [Mr. Rosen] from participating in a class action or private attorney general action in court . . . with respect to any claims we, the Covered Parties or [Mr. Rosen] have asserted against one another or other beneficiaries of this Provision. Id. at 47. Instead, Mr. Rosen committed to submitting any dispute he had involving the subject vehicle to binding arbitration. Id. Such provisions (i.e., the binding arbitration and the class action waiver) are enforceable under Florida and federal law. See, e.g., Fonte v. AT&T Wireless Services, Inc., 903 So. 2d 1019 (Fla. 4th DCA 2005). See also Sanders v. Comcast, 2008 WL 150479 (M.D. Fla. 2008). 10

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6. By including all owners and lessees, the Plaintiffs have defined a class, which, in the case of a leased vehicle, will have at least two class members (there could be others in the event that the leased vehicle subsequently has been re-leased or sold) per vehicle (i.e., the owner and the lessee), whose interests, as more specifically described in Paragraph Nos. 4 and 5 (above), are divergent, at best, if not in direct conflict with each other; 7. It includes consumers who purchased and/or leased 2007 Lexus ES 350s outside the State of Florida and later moved to the state, whose contractual and/or statutory remedies, if any, for alleged deficiencies in their vehicles would be governed by the laws of a state other than Florida and, therefore, fall outside the ambit of the putative class; 8. It includes consumers, who, contrary to the plain and unambiguous language of the Lexus New Vehicle Limited Warranty and applicable Florida warranty law, did not provide the Defendants with notice of the alleged defects in the subject 2007 Lexus ES 350 vehicles and provide a reasonable opportunity to cure and, therefore, are not entitled to prosecute such warranty claims, as a matter of law (Section 672.714(1), Fla. Stat.);6 and 9. It includes persons, who, in purchasing and/or leasing their 2007 Lexus ES 350 vehicles, dealt with persons and/or entities other than authorized Lexus dealers (e.g., independent brokers and/or retailers, etc.) and, therefore, likely were exposed to brochures, advertisements, websites, marketing literature and/or sales presentations that did not originate from and were not authorized by Defendants. On that basis alone (i.e., Plaintiffs failure to adequately and precisely define the class), this Court should deny Plaintiffs Motion, as a matter of law. See, e.g., ONeill, supra., at pp. 15 and 16 (wherein Judge Altonoga denied a motion for class certification, in part, on the grounds that the class definition included individuals, who, like the resale purchasers in the instant case, may have benefitted from the very conduct that formed the basis for the plaintiffs claims and/or who may very well have been aware of the scope and/or optional nature of the allegedly actionable damage waiver at issue and chose to purchase it anyway).
Although Plaintiffs go to great lengths to try and equate the remedies available under FDUPTA and Section 672.714, Florida Statutes (Plaintiffs Motion at pp. 20 and 24), there is a fundamental distinction between those statutes, which is fatal to Plaintiffs Motion, namely that, under Section 672.714, a buyer of accepted goods is only entitled to the remedy provided therein (i.e., the difference at the time and place of acceptance between the value of the goods accepted and [their] value [had ] they been as warranted) if he or she has first complied with the notice requirements of Section 672.607(3), Florida Statutes. See Section 672.607(3)(a)(emphasis added)(which expressly provides that [t]he buyer must within a reasonable time after he or she discovers or should have discovered any breach notify the seller of breach or be barred from any remedy). The record evidence, in the instant case, demonstrates that, although all of the named Plaintiffs brought their vehicles in for service at various times prior to the filing of the instant suit, only one, Arnold Rosen, reported any concerns with their OCS. See Service Records attached hereto as Composite Exhibit G. 11
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Plaintiffs Have Not Met Their Burden Of Establishing Numerosity Fed. R. Civ. P. 23(a)(1) provides that a class action is appropriate only if the class is so numerous that joinder of all members is impracticable. However, the mere size of a putative class, standing alone, is not sufficient to satisfy the impracticability requirement of Rule 23(a)(1). See, e.g., Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981); Minersville Coal Co. v. Anthracite Export Assn, 55 F.R.D. 426 (M.D. Pa. 1971)(refusing to certify a class of more than 300 independent anthracite producers, in part, because the class [was] not so numerous that joinder of all members was impracticable). See also Spectrum Fin. Co. v. Marconsult, Inc., 608 F.2d 377 (9th Cir. 1979)(holding that joinder of 92 putative class members, who could be identified and reached for litigation communication, was not impracticable). Instead, in determining whether joinder is impracticable, a district court should consider: the size of the putative class, the geographic dispersion of the putative class members, the nature of the action, the ease of identifying prospective class members, the size of their claims, whether class certification would further the interests of judicial economy, the inconvenience of trying individual lawsuits, and the ability of class members to institute individual lawsuits. See, e.g., Walco Inv., Inc. v. Thenen, 168 F.R.D. 315 (S.D. Fla. 1996); Powers v. Government Employees Ins. Co., 192 F.R.D. 313 (S.D. Fla. 1998). Here, Plaintiffs attempt to satisfy their burden under Rule 23(a)(1) by alleging that thousands of ES 350s have been sold with defective airbag occupant classification sensor systems. Plaintiffs Complaint at p. 9, 31. However, the record evidence conclusively demonstrates that

Plaintiffs assertion is factually incorrect and/or badly misleading in several material respects. First, it is true that, as of July 11, 2007, a total of 11,777 Model Year 2007 Lexus ES 350 vehicles were sold or leased for retail delivery in the State of Florida. See Supplemental Affidavit of Frank Fontanella, dated October 10, 2008 (Fontanella Affidavit) at p. 2, 8, attached hereto as Exhibit H.
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However, only a portion of those vehicles (i.e., those manufactured from March, 2006 to April 18, 2007) contain the part number that is the subject of Plaintiffs Complaint (i.e., Part No. 899520W010). See Lewis Affidavit at p. 2, 7. The remaining 2007 Lexus ES 350s (i.e., those

manufactured from April 18, 2007 to September, 2007 and delivered in Florida) contain Part No. 89952-0W011, which, upon information and belief, is not the subject of Plaintiffs Complaint. Id. Moreover, Plaintiffs would have this Court believe and, indeed, have affirmatively alleged, that all of the vehicles manufactured with Part No. 89952-0W010 improperly or inaccurately classify, by position and/or stature, occupants of the right front passenger seat, so as to create a risk that the occupant may not receive an airbag in an appropriate collision event. Plaintiffs Complaint at p. 2, 5. However, the record evidence belies Plaintiffs contention. In fact, although, to date, the 14 Lexus dealerships located in the State of Florida (i.e., 11 primary dealerships and 3 customer convenience outlet dealerships) have sold or leased a total of 13,337 2007 Lexus ES 350 automobiles to date (See Fontanella Affidavit at p. 2, 9), a search of Lexus Customer Contact Detail database reveals that the Lexus call center only received a total of fourteen (14) telephone calls and/or letters from customers in the State of Florida expressing confusion or concern about the performance of the OCS in their vehicle. See Lewis Affidavit at p. 3, 9. Stated otherwise, during the period from May, 2006 to October 2, 2008, only 0.1% of the total 2007 Lexus ES 350 customer base in the State of Florida have contacted Lexus call center, by telephone or in writing, about the performance of the OCS for the right front passenger seat in their vehicle.7 Id. In addition, Plaintiffs have not demonstrated that it would be impracticable to identify, name, and communicate with those few additional individuals who also claim to have experienced some confusion or issue with the OCS in their 2007 Lexus ES 350, let alone explained why or how class
The number of comments received, as a percentage of units sold, are even more de minimis on a national level (i.e., 35 comments received, as compared with 120,406 vehicles sold or leased, or approximately .03%). See Fontanella Affidavit at p. 2, 9. See also Lewis Affidavit at p. 3, 10. 13
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certification would further the interests of judicial or litigant economy. Moreover, Plaintiffs have not demonstrated that those consumers lack the means and the ability to institute and prosecute their own individual claims if they truly believe that the OCS in their 2007 Lexus ES 350 is not performing to their satisfaction. The fact is, of course, there are a number of contractual and statutory remedies available to such consumers, some of which, like Floridas Lemon Law, provide for an award of attorneys fees to the prevailing party. The absence of such a proffer, together with actual size of the prospective class, is wholly insufficient to satisfy Plaintiffs burden with respect to the numerosity and impracticability requirements of Rule 23(a)(1) and mandates the denial of their Motion. The Nature of the Substantive Claims and Defenses of the Putative Class and the Variations in the Facts Underlying Those Claims Preclude a Finding of Commonality In order to satisfy their burden with respect to the second mandatory pre-condition to class certification, Plaintiffs must establish that there are questions of law or fact common to the class. Rule 23(a)(2). Typically, Rule 23(a)(2) does not require that there be commonality as to all questions of law and fact among the claims of the prospective class members. See, e.g., Haitian Refugee Ctr., Inc. v. Nelson, 694 F. Supp. 864, 877 (S.D. Fla. 1988), affd, 872 F.2d 1555 (11th Cir. 1989). However, in order to satisfy Rule 23(a)(2), a class action must involve issues that are susceptible to class wide proof. Jones, 250 F.R.D. at 693 (citing Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004)). Thus, a number of federal courts have denied class certification, based on a movants failure to satisfy the requirements of Rule 23(a)(2), where the nature of the substantive claims and defenses and variations in the facts underlying those claims preclude a finding of commonality. See, e.g., Brooks v. Southern Bell Tel. & Tel. Co., 133 F.R.D. 54 (S.D. Fla. 1990). See also Graham v. Security Sav. & Loan, 125 F.R.D. 687 (N.D. Ind. 1989); Polich v. Burlington N., Inc., 116 F.R.D. 258 (D. Mont. 1987).

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Illustrative of these cases is Brooks, wherein the court cited lack of commonality as a basis for its refusal to certify a class of more than 5,000 Southern Bell employees, who claimed that, by virtue of their tenure with AT&T, they had a contractual right to free local and long distance telephone service, emphasizing that, among other things: (1) each of the prospective class members allegedly had a contract with the defendants, whose terms and conditions [would] require specific, individualized proof; and (2) if a contract were established, the court would have to determine, again on a contract by contract basis, the applicability of any legal defense which would bar plaintiffs claims, including certain individualized defenses; such that the only true common issues were the claims for relief themselves. See also Polich, 116 F.R.D. at 261 (refusing to certify a class of former railroad employees, based on their former employers alleged breach of its allegedly fraudulent promise never to close the shops in which the plaintiffs had worked, because each employee brought a unique set of facts to the case with respect to whether they were even aware of the defendants misrepresentations, the extent to which they relied on those representations, if at all, and the nature and extent of the damages, if any, caused by the defendants conduct, all of which made it impossible for the plaintiffs to demonstrate commonality under Rule 23(a)(2)). There is no principled basis for distinguishing this case from Polich and Brooks on the issue of commonality. Like Brooks, each of the members of the putative class entered into separate contracts for the purchase and/or lease of their vehicles from a variety of different Lexus dealers throughout the State of Florida.8 Those contracts of sale and/or lease, in turn, were the product of unique negotiations and pre-contractual representations by a wide variety of salespersons and, in some instances, likely were preceded by: test drives, which may or may not have included
8

Curiously, Plaintiffs have only named one of the 14 Florida Lexus dealerships (i.e., JM Lexus) as a Defendant in this action, despite record evidence that: (1) the allegations in their Complaint relating to pre-contractual representations and omissions would have occurred, if at all, at all Lexus dealerships in the State of Florida; and (2) only 5 of the 9 Plaintiffs actually purchased or leased their vehicle from that dealer. See Composite Exhibit G. 15

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explanations and/or demonstrations relating to the operation of the airbag and OCS; independent research by putative class members; and/or their having observed television and/or print advertisements or brochures relating to the subject vehicles. For these reasons, the nature of and defenses to each putative class members claim(s), at least as they relate to: (1) the substance of precontractual representations and/or material omissions, if any; (2) their purported reliance, if any, on those representations and/or omissions; (3) the extent of their knowledge relating to the air bag system, including the OCS, in the subject vehicle; and/or (4) the damages, if any, arising from the Defendants alleged acts or omissions, prior to and at the time of executing the subject sales contracts; will be case specific and, thus, will require a case by case inquiry. The same is true with respect to the putative class members use and maintenance of their respective vehicles, as well as the circumstances, if any, under which they and/or related or unrelated occupants of the right front passenger seat allegedly experienced the defect that forms the basis for the Plaintiffs Complaint (i.e., the intermittent flashing of the airbag activation or de-activation light on the vehicle dashboard). The latter experiential differences are particularly critical in the instant case, since there is indisputable evidence that there are numerous circumstances under which the subject OCS operates as designed (i.e., in compliance with FMVSS 208) and still suppresses the right front passenger seat airbag, either due to conduct of the passenger or because the stature and/or position of the right front occupant is such that the presentation of an airbag in a collision event could itself subject the occupant to a risk of serious personal injury or death. See Pearson Affidavit at pp. 4-6, 12-16. See also Benedict Affidavit at pp. 8 and 9, 22-25. Indeed, aside from the fact that each member of the prospective class purchased or leased a 2007 Lexus ES 350, there is almost no legal or factual commonality between their claims.

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The lack of commonality is even more pronounced with respect to the putative class members FDUPTA claim, since, almost by definition, those claims are predicated on allegations of fraud, which are unique to each of the putative class members. Specifically, in order to prevail on their FDUPTA claims, each class member will be required to establish: (1) the nature and content of the Defendants oral and written representations, including advertising and marketing materials; (2) that, through those representations, advertisements, and marketing materials, the Defendants engaged in an unfair and deceptive trade practice; (3) reliance on those representations and/or marketing materials; and (4) actual damage as a direct and proximate result of the allegedly deceptive practice(s). Such claims simply cannot and do not satisfy the commonality requirement of Rule 23(a)(2). See, e.g., Casper v. Cunard Line, Ltd., 560 F. Supp. 240 (E.D. Pa. 1983)(refusing to certify a class comprised of passengers who allegedly were fraudulently induced to book passage on a ship, because the alleged oral and written representations varied from passenger to passenger, as did the passengers reliance and damages). See also Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998)(denying class certification where rights of putative class members arose out of fraudulent representations that likely would vary widely between class members and would be dependent on the individual class members reliance on those representations). Accordingly, this Court must deny Plaintiffs Motion. Plaintiffs Claims Also Are Not Typical Of The Experiences, If Any, Of Other Putative Class Members, As Required Rule 23(a)(3) Rule 23(a)(3) expressly provides that, in order to maintain a class action, a class representative must prove that his claims or defenses are typical of the claims or defenses of the class. Id. The purpose of this so-called typicality requirement, which, differs from commonality in that it focuses on the named class representatives individual characteristics in comparison to the proposed class, is to ensure that the advancement of the interests of the class representative(s) also
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will advance the class members interests. Jones, 250 F.R.D. at 693. Stated otherwise, to satisfy the typicality requirement of Rule 23(a)(3), a class representative must possess the same interest and suffer the same injury as the [putative] class members. Id. (cases cited therein). In the absence of such proof, federal courts, including courts in the Southern District of Florida, repeatedly have refused to certify classes in cases involving alleged defects in consumer products. See, e.g., In re: Canon Cameras Litigation, 237 F.R.D. 357, 359 (S.D.N.Y. 2006). See also Dennis v. Whirlpool Corp., Case No. 06-80784-CIV-RYSKAMP/VITUNAC (S.D. Fla. March 13, 2007)(Order Granting [Defendants] Motion to Dismiss [or, in the Alternative, to Strike Class Allegations).9 In Dennis, for example, two purchasers of a KitchenAid refrigerator filed a class action complaint against the manufacturer (Whirlpool), based on what they alleged to be a defect in the side wall of the interior lining of the refrigerator, which purportedly manifested itself in a series of hairline cracks and splits in the side wall. Id. at p. 2. Plaintiffs further alleged that the defect created a dangerous condition, which, among other things: (1) provid[ed] a place for mold and other foreign elements to grow; (2) reduced the effectiveness and performance of the refrigerator; and (3) caused at least one of the plaintiffs to incur repair costs. Id. at pp. 3 and 4. Whirlpool moved to dismiss or strike the plaintiffs complaint and class allegations and, in support thereof, submitted service data and affidavits demonstrating that the overwhelming majority of refrigerator owners had not reported or needed a service call relating to problems with the subject inner liner, let alone experienced problems similar to those alleged by the plaintiffs. To the contrary, the service data established that only about .31% of all [such] KitchenAid refrigerators sold in the United States . . . had needed a service call relating to cracking of the cavity liner and that, among that tiny percentage of owners, each had requested and/or received a variety of warranty remedies. Id. at
A copy of Judge Ryskamps March 13, 2007 Order Granting [Defendants] Motion to Dismiss [or, in the Alternative, to Strike Class Allegations] is attached hereto as Exhibit I. 18
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p. 5. Based, in part, on that record evidence, the district court held that the plaintiffs had not satisfied their burden of establishing typicality and granted the motion to dismiss or strike the class allegations. In doing so, the Court noted that [c]lass certification is entirely inappropriate given the rarity of the alleged problem. Id. at p. 6 (citing In re: Canon, 237 F.R.D. at 360). Significantly, the case on which the Dennis Court relied to support its dismissal of the class allegations (i.e., In re: Canon) involved a similar effort by plaintiffs to transform a de minimis number of consumer complaints into a class action. In that case, the plaintiffs sought to certify a class that included all purchasers of thirteen (13) makes and models of the defendant manufacturers digital cameras. In their complaint, plaintiffs alleged that the cameras had numerous technological and physical defects and that, despite having knowledge of those defects, [the defendant] failed to inform the public of their existence, in breach of various warranties and in violation of New Yorks deceptive trade practices act. The plaintiffs filed a motion for class certification and the district court denied the motion. In reaching its decision, the Court emphasized that, according to the record evidence, only a tiny fraction of the cameras in issue [i.e., two tenths of one percent] [had been reported to have] malfunctioned for any reason. Id. at 359. The court went on to hold that: where the portion of the proposed class that even suffered malfunctions appears to be tiny, plaintiffs proposal to certify the class of all camera owners, then determine which few suffered malfunctions, and then determine which few of those even arguably can attribute the malfunctions to the design defect here alleged, would render the class action device nothing more than a faade for conducting a small number of highly individualized cases. Id. at 360 (cases cited therein). See also Dennis at p. 6 (citing In re: Canon with approval). Likewise, while Plaintiffs would have this Court believe that their claims are typical of the class they seek to represent (i.e., all Floridians who have purchased or leased a 2007 Lexus ES 350), the record evidence refutes that contention. See Motion at pp. 10 and 11, supra. (where, in

highlighting the inadequacy of Plaintiffs class definition, Defendants detail the myriad of ways in
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which Plaintiffs claims are not typical of the class they seek to represent). In fact, in his Affidavit, Lance Lewis makes it clear that, while a total of 13,337 2007 Lexus ES 350s have been sold and/or leased in the State of Florida, to date, only fourteen (14) of those purchasers and/or lessees (or approximately 0.1% of the total) have called or written the Lexus call center to express concern about and/or seek assistance regarding their vehicles OCS. See Lewis Affidavit at p. 3, 9. Moreover, absent a vehicle by vehicle inspection and individualized discovery relating to each front seat occupant and whether each was properly positioned, Defendants have no way of knowing whether, among the very small number of consumers who have expressed concern, any concerns were related to the alleged defect that forms the basis for Plaintiffs Complaint. Accordingly, Plaintiffs cannot meet their burden of proving typicality under Rule 23(a)(3) and their Motion should be denied. Arnold Rosen Has Irreconcilable Conflicts Of Interest Which Prevent Him From Protecting The Interests Of Other Putative Class Members It is axiomatic that Fed. R. Civ. P. 23(a)(4) permits movants for class certification to serve as a class representative only if . . . [they] will fairly and adequately protect the interests of the class. Federal courts, in turn, have construed this requirement as disqualifying a plaintiff from serving as a class representative, where their interests directly conflict with the interests of those they seek to represent (i.e., the other members of the putative class). See, e.g., In Re Terazosin Hydrochloride Antitrust Litigation, 223 F.R.D. 666, 673 (S.D. Fla. 2004)(fundamental conflict exists where the named representatives cannot vigorously prosecute the interests of the class . . . because their interests are actually or potentially antagonistic to, or in conflict with, the interests and objectives of other class members). See also Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280 (11th Cir. 2000)(class action cannot be certified when its members have opposing interests or when it consists of members who benefit from the same acts alleged to be harmful to other members of the class); St.
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Louis Chiropractic v. Federal Ins. Co., 2008 WL 4056225 (D.N.J. 2008)(refusing to certify a class, in part, because plaintiff, who was obligated to submit its claim to binding arbitration, could not properly appear before the Court, let alone adequately represent an entire class of insureds and medical providers, within the meaning of Fed. R. Civ. P. 23(a)(4)). Not surprisingly, Plaintiffs treat Rule 23(a)(4)s mandatory requirements almost as an afterthought. The truth is, however, it is difficult to conceive of a conflict that is any more direct and dispositive than that which Mr. Rosen has with his fellow class mates, namely that, by virtue of the Lease Agreements he executed in acquiring his 2007 Lexus ES 350s, he is contractually obligated to pursue binding arbitration and has voluntarily abdicated any rights he otherwise may have had to participate as a party in a class action. See Composite Exhibit H. See also Note 5 at p. 10, supra. This fact, together with Mr. Rosens status as a lessee, which, for the reasons outlined on pages 10 and 11, supra., place him in direct conflict with the lessors and owners he purports to represent, render him an inadequate class representative, within the meaning of Rule 23(a)(4), as a matter of law. Plaintiffs Cannot Satisfy Rule 23(b)(3), Because Individualized Issues Predominate Over Common Issues And A Class Action Is Not A Superior Method For Adjudicating This Controversy Even if Plaintiffs could satisfy the requirements of Rule 23(a), which, for the reasons set forth above, they cannot, this Court would be required to deny their Motion, because Plaintiffs have not met their burden, under Rule 23(b)(3), to demonstrate that issues which are subject to generalized proof predominate over issues that require individualized proof. Powers v. Government Employees Ins. Co., 192 F.R.D. 313, 318 (S.D. Fla. 1998)(citing Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997)). See also Jones, 250 F.R.D. at 694 (Rule 23(b)(3)s predominance requirement is far more demanding than Rule 23(a)(2)s commonality requirement);

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Israel v. Avis Rent-A-Car Systems, Inc., 185 F.R.D. 372 (S.D. Fla. 1999), revd on other grounds, 211 F.3d 1228 (11th Cir. 2000)(same). Rule 23(b)(3) also requires a movant to demonstrate that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Id. The purpose of this requirement is to afford a means of vindication for groups of people who individually would be without effective strength to bring their opponents into court at all. See, e.g., Amchem Products, Inc., 521 U.S. at 617. Thus, in determining the issue of superiority, a district court should consider, among other things: (1) the putative class members interest in prosecuting and controlling their own actions; (2) the extent and nature of other litigation already filed by prospective class members; (3) the desirability of focusing the litigation in a particular forum; and (4) the difficulties likely to be encountered in managing the prospective class action. Fed. R. Civ. P. 23(b)(3).10 A number of federal courts, including courts in the Southern District of Florida, have relied on the foregoing principles to refuse to certify classes, particularly where, as here, issues central to the putative class members liability and damage claims would require highly individualized factfinding (i.e., mini-trials) that are the antithesis of the underlying rationale for class certification. See, e.g., In re: Canon Cameras Litigation, 237 F.R.D. at 359; Dennis, Case No. 06-80784-CIVRYSCAMP; Montgomery v. The New Piper Aircraft, 209 F.R.D. 221 (S.D. Fla. 2002). See also Partain v. First Natl Bank, 59 F.R.D. 56, 59 (M.D. Ala. 1973)(predominance requirement assists a
In an effort to bolster their claim of superiority, Plaintiffs actually contend that the alleged defect is latent and that, as a result, there may well be class members who do not yet know that [the OCS in their 2007 Lexus ES 350 is not properly classifying occupants in the right front passenger seat]. Plaintiffs Motion at p. 28. Such a contention borders on the spurious. Indeed, it is hard to imagine the alleged defect being any more obvious, given that: (a) there is an indicator light prominently displayed in the center of the vehicles dashboard alerting the driver and the right front passenger as to whether each of their air bags are ON or OFF; and (b) there are four (4) pages in the Owners Manual dedicated to explaining how the OCS works (i.e., what the indicator light means, who should expect to receive an air bag, and the factors that can affect the engagement of the air bag system). See Owners Manual at pp. 70 through 74. See also Full page ad taken out by Plaintiffs counsel in the June 26, 2007 Ft. Lauderdale Sun Sentinel attached hereto as Exhibit J. Thus, the Court can reasonably conclude that 2007 Lexus ES 350 owners are well aware of and would have reported any purported concerns with the OCS in their vehicles. 22
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district court in determining whether the individual questions in a case are so overwhelming as to destroy the utility of the class action). In Montgomery, for example, current and former owners of the Malibu Mirage, a single engine aircraft manufactured by Piper, filed a multi-count class action complaint against Piper and Textron/Lycoming, the manufacturer of the aircrafts TIO-540-AE2A engine (Subject Engine). In that complaint, which included claims for breach of warranty, violations of FDUPTA and claims for equitable relief, the plaintiffs alleged that they had suffered economic damages, including diminution in the value of their aircraft, by virtue of representations made by the defendants, in various documents, to the effect that the Subject Engine would operate [for] 2000 service hours before requiring an overhaul, when, in fact, a number of the plaintiffs engines allegedly required overhaul long before the expiration of that period, as a result of abnormal crankshaft [and connecting rod] bearing wear. Plaintiffs, in turn, moved to certify a nationwide class of [a]ll current and former owners of Malibu Mirage [Aircraft] equipped with [the Subject Engine] from 1987 to the present. The Magistrate recommended denial of that motion and the district court adopted that recommendation as its own. 209 F.R.D. at 221. In reaching its decision, the Court focused on several dispositive factors. First, the Court held that there were intra-class conflicts (see pp. 10 and 11, supra.) between current and former Mirage owners, which made it impossible for plaintiffs to satisfy the requirements of Rule 23(a)(4)(i.e., that the class representative be capable of fairly and adequately protecting the interests of the class). Id. at 226. Specifically, the Court noted that class members who had sold their aircraft during the class period would be looking to recover the diminution in value that they purportedly experienced as a result of the alleged defect, while putative class members who had purchased their aircraft in the secondary market during the class period would have to prove that they did not benefit
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from the diminution in value (i.e., that they paid full price notwithstanding the sellers alleged diminution in value claim), thereby making their claims inherently antagonistic. Id. Second, the Court emphasized that class certification was improper, as a matter of law, because individualized factual inquiries relating to causation and damages far outweighed the relatively few common issues raised by the class members claims, in direct contravention of Rule 23(b)(3). Id. at 229. Those inquiries included, but were not limited to: (1) the claimants exposure to and reliance on the alleged misrepresentations regarding the [Subject Aircrafts] ability to reach 2000 hours service time before overhaul, as well as the content of those representations; (2) whether those representations and/or the alleged defects in the Subject Engine and/or Subject Aircraft caused injury to the claimants, as required by FDUTPA; (3) the quantum of damages [if any] suffered by each of the putative class members; and (4) whether the alleged market value depletion was wholly attributable to the defendants allegedly deceptive trade practices or the myriad of other usage and maintenance considerations that typically factor into the valuation of an aircraft. Id. at 230 (wherein the Court flatly states that [t]he individualized inquiries regarding causation and damages would be overwhelming and would require numerous mini-trials on both issues). This Court reached a similar result in Jones v. Jeld-Wen, Inc., 250 F.R.D. 685 (S.D. Fla. 2008). In that case, Florida consumers of wood doors and windows, which incorporated hurricane resistant laminated-glass, filed a statewide class action complaint against the manufacturer and retailer of those products (and others), based on the defendants alleged breach of various express and implied warranties and their purported violations of FDUPTA. Specifically, the plaintiffs

alleged that the glass products, which were warranted to last for a period of at least ten (10) years, were delaminating and discoloring prematurely, due to alleged defects in the resin used to bond the glass together, which, in turn, decreased the efficiency and performance of the glass products. 250
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F.R.D. at 688. Plaintiffs further alleged that, at or sometime after the sale of the subject products, the defendants knew or should have known that the glass products were not suitable for use in their homes, but failed to disclose those defects to the plaintiffs and/or to take affirmative steps to fully compensate the plaintiffs for all damages arising from the defects. Id. at 691. Plaintiffs then filed a motion seeking to certify a class of all persons and entities in the State of Florida who purchased [the] impact resistant windows and/or glass doors and [who] had not been offered replacement [products]. Id. This Court denied plaintiffs motion. The Court began its analysis by noting that the class definition proffered by the homeowners was, arguably, deficient, in that, among other things, it was not expressly limited to persons whose doors and windows necessarily contained the allegedly defective resin and, therefore, in itself, potentially created a need to conduct individualized inquiries simply for the purpose of determining whether a claimant was an appropriate class member. Id. at 692. The Court then shifted its focus to the requirements of Rule 23(b)(3) and concluded that the plaintiffs had not met their burden of demonstrating that the common issues of law and fact predominate[d] over the individualized questions raised by their complaint, nor could they establish that class relief was a superior method for addressing the individual homeowners claims. Id. at pp. 695 and 696. Specifically, the Court held that, among other things, the jury would have to determine whether defective resin was a legal cause of the [homeowners] damages for each pane of glass, on a house by house basis. Id. at 695. The Court emphasized that the need to determine the causation on an individualized basis precluded the ability to maintain the . . . case as a class action. Id. Finally, the Court noted that plaintiffs could not demonstrate that class consideration was a superior method of resolving the homeowners claims, because: (1) the claims at issue [did] not involve a de minimis sum, [such] that an individual plaintiff would be discouraged from filing his
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own suit; and (2) there were likely to be great difficulties in managing the case as a class action, based on the predominance of individual issues. Id. at pp. 695 and 696. Moreover, at least two (2) Florida appellate courts have relied on the same principles (i.e., the state law equivalent of Rule 23(b)(3)) in denying motions for class certification brought by purchasers, who, like the Plaintiffs in the instant case, claimed that an alleged defect diminished the value of their automobiles. See, e.g., Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133 (Fla. 3d DCA 2008)(refusing to certify a class comprised of all Florida purchasers and lessees of 1999-2001 Kia Sephias, who claimed that a design defect in the vehicles braking system caused premature wear of the front brakes and created a risk of injury, based, in part, on its finding that proof of the causation and damage elements of their FDUPTA and breach of warranty claims would require a highly individualized inquiry).11 See also Volkswagen of Am., Inc. v. Sugarman, 909 So. 2d 923, 924 (Fla. 3d DCA 2005)(holding that Florida consumers of 1999-2002 Volkswagen Jettas were not entitled to prosecute, as a class action, claims arising out of an alleged design defect in the vehicles front bumper assembly, because the key element of causation would require individualized inquiry (i.e., mini-trials) into each accident that caused the defect to manifest itself and, in doing so, defeat the purpose of a class action). The record evidence, in the instant case, is even more compelling than the evidence which the courts in Jones, Montgomery, Kia Motors and Volkswagen deemed sufficient to mandate the denial of motions for class certification, based on a lack of predominance and superiority. Like the purchasers/lessees in those cases, Plaintiffs can only prevail on their breach of warranty and

Those factors included: (1) whether the purchaser had knowledge of the alleged brake defect and purchased the vehicle despite such knowledge; (2) whether a deficiency attributable to Kia manifested itself; (3) whether an individual vehicle suffered diminished value as a result of the alleged deficiency; and/or (4) whether the brake wear and other brake related problems experienced by the putative class member was attributable to a defect or environmental factors, including weather or road conditions, the presence of foreign objects in the braking system, the failure of parts other than the [brakes] . . . or individual driving habits). Id. at 1140. 26

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FDUPTA claims by pleading and proving, among other things, causation and damages. In deciding whether the Plaintiffs have met their burden of proof with respect to those issues, however, the finder-of-fact will have to conduct a plethora of highly individualized mini-trials to determine, among other things: (1) whether each putative class member has experienced the alleged defect in their vehicle (i.e., whether their OCS is properly classifying, by stature and position, occupants of the right front passenger seat to determine if they would benefit from or likely be injured by the deployment of an airbag in a collision event); (2) whether the alleged failure of the OCS to properly classify the stature and position of a right front seat occupant is attributable, not to any alleged defect in the system, but rather to some act or omission on the part of the vehicle owner and/or occupant; (3) whether what the putative class member perceives as a design defect is, in fact, a byproduct of the system acting properly (i.e., in conformance with FMVSS 208) by ensuring that an airbag is suppressed in the presence of a right front passenger seat occupant who is not of proper stature and/or is out of position, so as to avoid creating a risk or serious personal injury or death from deployment of the airbag itself; (4) whether there has been an actual, as opposed to a hypothetical, diminution-in-value to each putative class members vehicle(s), which is causally related to an alleged defect in the OCS;12 and (5) whether the diminution-in-value, if any, of each putative

12

As is too often the case in Plaintiffs Motion, the mere fact that Plaintiffs assert, without any supporting record evidence, that there has been a diminution in the value of their vehicles attributable to the OCS does not make it true, any more than there unsubstantiated allegations of defect render the 2007 Lexus ES 350 defective. Indeed, as in the case of their defect allegations, the factual record conclusively demonstrates quite the opposite (i.e., there is not a scintilla of evidence to support the contention that the 2007 Lexus ES 350 has experienced any diminution-invalue in the marketplace). To the contrary, as evidenced by the Affidavit of Roger McCarthy, dated October 13, 2008 (McCarthy Affidavit), attached hereto as Exhibit K, Plaintiffs and other purchasers of the 2007 Lexus ES 350 actually received more value for their investment than most, if not all, of those who purchased vehicles in the same class. In fact, an analysis of the actual market data reveals, among other things, that: (1) the rate of decline in value of the 2007 Lexus ES 350 was less than all other competitive vehicles in its class, including the two other Lexus products with which it competes (i.e., the Lexus IS 250 and IS 350); and (2) as of September 8, 2008, the retail value of the Lexus ES 350, as a percentage of the manufacturers suggested retail price, is third behind only its two Lexus brethren and first among all other competitors in its class . Id. at Figures 3 through 6. In fact, based on his examination of the most widely used data sources on vehicle value, Dr. McCarthy unequivocally states that [he] cannot find any empirical evidence that supports Plaintiffs claim that the 2007 ES 350 has 27

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class members vehicle is attributable to factors wholly unrelated to any alleged defect in the OCS (e.g., normal wear and tear, mechanical problems, prior damage to the subject vehicle, mileage, failure to properly maintain and/or repair the subject vehicle, the presence or absence of various accessories, etc.). Apparently cognizant of the numerous deficiencies in proof, which, standing alone or taken together, are fatal to their ability to satisfy the requirements of Rule 23(b)(3), Plaintiffs also seek refuge in Rule 23(b)(2). However, their reliance on that Rule as an alternative basis for relief is similarly misplaced for several reasons. First, Plaintiffs have not pled their intention to rely on Rule 23(b)(2) in their Complaint. Instead, the only portions of Rule 23 which they pled are subparts (1) and (3). See Complaint at p. 8, Par. 29. Accordingly, Plaintiffs should not be permitted to inject a new theory of or basis for relief into the case, for the first time, in their Motion for Class Certification. Second, despite their conclusory assertion to the contrary, Plaintiffs claims do not fall within the narrow subset of cases to which Rule 23(b)(2) applies. See Plaintiffs Motion at p. 19 (wherein Plaintiffs, citing Leszczynski v. Allianz Ins. Co., 176 F.R.D. 659 (S.D. Fla. 1997), admit, as they must, that Rule 23(b)(2) is only available to litigants, whose demands for money damages are ancillary to their claims for declaratory and injunctive relief). See also Plaintiffs Motion at p. 18 (wherein Plaintiffs boldly, but disingenuously, assert that although [they have] alleged causes of action for breach of warranty and violation of FDUPTA, the primary remedies [they] seek are declaratory and injunctive). In fact, of the seven (7) categories of remedies set forth on page 4 of their Complaint at least six (6) (and arguably all seven (7)) contemplate some form of monetary compensation to the Plaintiffs (e.g., a refund of the purchase price, reimbursement of the lease payments, repair of the vehicles at no cost to the Plaintiffs, awards for the alleged diminution in
suffered vehicle impairment as a result of an alleged defect. Quite the opposite. This vehicle has held its value in a superior manner. Id. at 23 (emphasis added). 28

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value, loss of value and/or loss of use of the vehicle, reimbursement of all costs incurred by the Plaintiffs in connection with the vehicles and, lest we forget, an award of attorneys fees and costs under FDUPTA). Moreover, as if the foregoing were not sufficient to dispel the notion that the predominate relief sought by the Plaintiffs is money damages, the Court need not look beyond the following additional indicia found in Plaintiffs Complaint: (1) in describing the Nature of the Case, Plaintiffs plainly state that [t]his is a claim under [FDUPTA] and for other causes of action; (2) Plaintiffs make it clear that, even to the extent that they purportedly are seeking equitable relief, in addition to money damages, all of those remedies are tied to and ostensibly aris[e] out of [D]efendants violation of [FDUPTA]; (3) of the 20 Counts in Plaintiffs Complaint only 5 purport to be for some form of equitable relief and none of those even begin to allege the elements necessary to prove such a claim; and (4) although Plaintiffs assert, in a conclusory fashion, a demand for mandatory injunctive relief in the ad damnum clause tacked on to the end of their Complaint (a unique and rarely implemented equitable remedy, the elements of which, again, are not pled in the body of the Complaint), much of the injunctive relief they seek is either a direct or indirect form of monetary damages (e.g., extending existing warranties, refunding the purchase price, reimbursing Plaintiffs for any repair costs they may have incurred relating to the OCS, refunding the lease payments (in the case of those who leased their vehicle), awarding restitution, awarding compensatory damages, and awarding attorneys fees and costs).13 Complaint at pp. 1, 4, 29 and 30.
Finally, as a purely legal matter, equitable relief in the form of either a mandatory injunction and/or a declaratory judgment are wholly unavailable to the Plaintiffs, because, among other things: (1) their alleged injuries, if any, are not irreparable (i.e., they can readily be undone through an award of damages); and (2) declaratory relief is inappropriate where, as in the instant case, the parties rights and obligations are the subject of bargained for agreements. Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983)(an injury is irreparable only if it cannot be undone through monetary remedies); Jacksonville Elec. v. Beemik Builders, 487 So. 2d 372 (Fla. 1st DCA 1986)(injunctive relief seldom is appropriate in a contract action, because money damages ordinarily are available). See also Rollins, Inc. v. Butland, 951 So. 2d 860, 882(Fla. 2d DCA 2006)(certification of a class, under state equivalent to Rule 23(b)(2)(i.e., Fla. R. Civ. P. 1.220(b)(2)), was improper, where, as in the instant case, the 29
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CONCLUSION Based on the foregoing arguments and authorities, the Defendants, TOYOTA MOTOR SALES U.S.A., INC., LEXUS U.S.A., JM AUTO, INC. d/b/a JM LEXUS, SOUTHEAST TOYOTA DISTRIBUTORS L.L.C., and JM FAMILY ENTERPRISES, INC., respectfully request that this Court deny Plaintiffs Motion for Class Certification and that it grant Defendants any and all such further relief to which they are entitled. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing Memorandum of Law in Opposition to Plaintiffs Motion for Class Certification was filed electronically and sent, via regular mail, to: Jonathan R. Gdansky, Esq. and Scott P. Schlesinger, Esq., SHELDON J. SCHLESINGER, P.A., Attorneys for Plaintiffs, 1212 South East Third Avenue, Fort Lauderdale, FL 33316 this 13th day of October, 2008. SEIPP & FLICK, LLP Attorneys for Defendants s/DONALD A. BLACKWELL John C. Seipp, Jr. (FB#289264) Donald A. Blackwell (FB#370967) Two Alhambra Plaza, Suite 800 Miami, Florida 33134-5214 (305) 995-5600 (telephone) (305) 995-6090 (facsimile)

only function served by the claim for declaratory and injunctive relief is to lay a legal foundation for the recovery of money damages [i.e., where] the injunctive relief requested would be little more than an overture to the damages opera). 30