LeBlanc v. Exxon Mobil Corporation et al

Filing 149

RULING denying 19 MOTION for Class Certification. Signed by Judge Shelly D. Dick on 3/17/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ROGER JEAN LEBLANC,
Individually and on Behalf
of all others similarly situated

CIVIL ACTION

VS.

14-201-SDD-RLB

EXXON MOBIL CORPORATION

RULING ON MOTION FOR CLASS CERTIFICATION
Before the Court is the Plaintiffs’ Motion for Class Certification1 which Exxon has
opposed.2 The parties have extensively briefed the relevant issues. The Court took
evidence and heard oral argument at the class certification hearing held on February 17
and 18, 2015. For reasons assigned in open Court on February 18, 2015 and for the
following written reasons, the Plaintiffs’ Motion for Class Certification shall be denied.
I.

FACTUAL BACKGROUND
The Plaintiffs are individuals who purchased gasoline in March of 2014 that had

been distributed from Exxon’s Baton Rouge Terminal and produced at Exxon’s Baton
Rouge refinery. Exxon concedes that, in March of 2014, Exxon distributed fuel from its
Baton Rouge terminal that contained elevated unwashed gum (UWG) levels due to
what appears to have been an accidental introduction of Escorez™ resin into Exxon’s
gasoline production process. Plaintiffs contend that the Escorez™ resin is a washed
gum (WG) which, unlike UWGs, does not combust and, thus, remains in the engine
1
2

Rec. Doc. 19.
Rec. Doc. 9.

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allegedly causing engine damage and decreases in operating efficiency and
performance. Although Exxon does not deny that in March of 2014 it produced and
distributed gasoline with elevated resin levels, which Exxon refers to as “atypical”
gasoline, Exxon contends that this “atypical” gas contained elevated levels of UWG
which Exxon contends is fully combusted upon normal engine operations.
Exxon offered evidence that, upon receiving consumer complaints, Exxon shut
down its Baton Rouge Terminal on March 26, 2014 and established a claims handling
program to address consumer concerns and provide relief to those who sustained
damages as a result of purchasing the subject gasoline. According to the evidence,
Exxon has paid approximately $4.6 million in claims.
Plaintiffs move for class certification under Rule 23 of the Federal Rules of Civil
Procedure and propose the following as their class definition:
all purchasers of defective fuel created, sold, or distributed by Exxon for
the twelve months preceding April 3, 2014 and all owners of property
damaged by the use of defective fuel created, sold, or distributed by
Exxon in that twelve month period.
II.

LAW AND ANALYSIS
A. Elements and Standards for Class Certification
The party seeking class certification bears the burden of proving all four

requirements of Rule 23(a); namely, numerosity, commonality, typicality, and adequate
representation.3 In addition to meeting the requirements of Rule 23(a), a class must
also meet at least one element of Rule 23(b). Plaintiffs move for certification under Rule
23(b)(3).

3

Berger v. Compaq Computer Corp., 257 F.3d 475, 479-80 (5th Cir. 2001).

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“The class action is ‘an exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties only’.”4 Because class actions are the
exception and not the rule, “[a] district court must conduct a rigorous analysis of the
Rule 23 prerequisites before certifying a class.”5 “Rule 23 requires the Court ‘to find,’
not merely assume the facts favoring class certification.”
Exxon attacks Plaintiffs’ certification motion on each ground necessary for class
certification.6 The Court finds that the requirements of numerosity and adequacy of
representation are present. However, the Court finds that Plaintiffs’ claims fail the
predominance and superiority requirements of Rule 23(b)(3) and that the class is not
ascertainable. Because the Plaintiffs’ Motion to Certify fails on these grounds, the Court
need not address the additional 23(a) requirements of commonality and typicality.
B. Rule 23(b)(3) Predominance and Superiority
“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.”7 The class definition
proposed in this case draws its parameters around consumers and/or purchasers of the
subject gasoline, which Plaintiffs call “defective” and Exxon calls “atypical”. The clever
use of adjectives, however, does not drive the Court’s analysis. Rather, the Court must
“identify the substantive law issues which will control the outcome of the litigation”8 in
order to determine whether “questions of law or fact common to class members
predominate over any questions affecting only individual members”.9 While the common
4

Wal-mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011)(quoting Califano v. Yamasaki, 99 S.Ct.
2545, 2557 (1979)).
5
Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996).
6
Rec. Doc. 9.
7
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S. Ct. 2231, 2249, 138 L. Ed. 2d 689 (1997)
8
Alabama v. Blue Bird Body Co., 573 F.2d 309, 316 (5th Cir. 1978).
9
FRCP Rule 23(b)(3)

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experience of purchasing and/or using the subject gas may satisfy Rules 23(a)’s
requirement of commonality, the predominance inquiry is “far more demanding”.10 Thus,
“[t]he issue of ‘predominance’ has become the battlefield on which most class
certifications are fought, and the outcome depends heavily on [the] court’s assessment
of what evidence (i.e., whether class-wide or individualized) will be adduced at the
trial.”11
Before certifying a class under Rule 23(b)(3), the court must determine that “the
questions of law or fact common to class members predominate over any questions
affecting only individual members.”12 The predominance inquiry requires the Court to
consider “how a trial on the merits would be conducted if a class were certified.”13 This
“entails identifying the substantive issues that will control the outcome, assessing which
issues will predominate, and then determining whether the issues are common to the
class, a process that ultimately prevents the class from degenerating into a series of
individual trials.” 14
1. Redhibition
Initially it must be noted that, as a matter of law, only purchasers of the subject
gasoline are within the class of persons that can bring claims in redhibition. A cause of
action in redhibition “relates to error in the cause of completed sales, and, absent a

10

Amchem Products, 521 U.S. at 624, 117 S.Ct. at 2250.
Ancar v. Murphy Oil, U.S.A., Inc., No. Civ. No. 06-3246, 2008 WL 2951794, at p. 4 (E.D. La. July 25,
2008).
12
Frey v. First Nat. Bank Sw., No. 13-10375, 2015 WL 728066, at p.5 (5th Cir. Feb. 20, 2015) (internal
citations omitted).
13
Gene and Gene LLC v. BioPay LLC, 541 F.3d 318, 326 (5th Cir.2008) (quoting Bell Atl. Corp. v. AT&T
Corp., 339 F.3d 294, 302 (5th Cir. 2003)).
14
Id.
11

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sale, the redhibition articles do not apply.”15 The Plaintiffs’ proposed class definition
includes both purchasers of the subject gasoline and “owners of property damaged by”
the subject gas. Not all owners were necessarily purchasers. Accordingly, not every
claimant meeting the class definition has a claim in redhibition and this question of fact
is unique among proposed class members. Although the distinction between class
members who were non-purchase users as opposed to purchaser/users is subject to
rather simple evidentiary proof, it is nonetheless a question of fact which is not common
among proposed class members.
“Under La. C.C. art. 2520, the seller [and manufacturer] warrants the product he
sells to be free of redhibitory defects.”16 Louisiana Civil Code art. 2520 defines a defect
as redhibitory “when it renders the thing useless, or its use so inconvenient that it must
be presumed that a buyer would not have bought the thing had he known of the defect,”
or “when, without rendering the thing totally useless, it diminishes its usefulness or its
value so that it must be presumed that a buyer would still have bought it but for a lesser
price.”17
Even though gasoline distributed from Exxon’s Baton Rouge Terminal in March
of 2014 admittedly contained elevated resin levels, the gasoline is not redhibitory per
se. Rather, for the subject gasoline to be redhibitory or defective, under Louisiana law,
requires proof that the gasoline purchased was either “absolutely useless” or “its use is
so inconvenient” that it is presumed the buyer would not have purchased the gas for the
price paid. Thus, to determine whether a particular purchaser of the subject gasoline

15

Alvis v. CIT Grp./Equip. Fin., Inc., 918 So. 2d 1177, 1183 (La. App. 3rd Cir. 2005), citing, Stack v. Irwin,
246 La. 777, 167 So.2d 363 (1964).
16
Aucoin v. S. Quality Homes, LLC, 984 So. 2d 685, 693 (2008).
17
Id. at 690.

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has a redhibition claim requires inquiry into the nature and degree of uselessness or
inconvenience, if any, the purchaser or user experienced. This factual issue is the
seminal question of a redhibition claim and requires specific and individualized proof of
facts. It is not an inquiry which is amenable to uniform or formulaic class wide proof.
Plaintiffs argue that “[e]very purchaser of a defective drop of Exxon fuel is entitled
to a refund of [the] purchase price, as a matter of Louisiana redhibition law.”18 This is
not an accurate statement of law. Simply characterizing the subject gas as “defective”
does not trigger rescission. Rather, under Louisiana law only redhibitory defects are
actionable. Civil Code article 2520 unambiguously provides that the “seller warrants the
buyer against redhibitory defects, or vices, in the thing sold.” Not every imperfection or
arguable “defect” is redhibitory. Civil Code article 2520 defines defects that are
redhibitory in terms of the object’s usefulness for its intended purpose.
The matter of proving the identity of persons who purchased the subject gasoline
will be presumably simple and entail similar evidence across class members. However,
predominance ends there. As stated, proof of purchase of the subject gasoline alone is
not dispositive of liability in redhibition. Rather, it will be incumbent on the Court to hear
individualized evidence of uselessness or inconvenience in order to determine whether
what the Plaintiffs characterize as “defective” was redhibitory.
Individualized proof will also be required to determine the legally permissible
remedy, whether rescission or reduction in price. Relying on Civil Code article 254519,
18

Rec. 19-1, p. 13.
A manufacturer is conclusively presumed to have knowledge of defects in the object it manufactures.
Young v. Ford Motor Co., 595 So.2d 1123, 1126 (La.1992). Thus, because of this presumption of
knowledge, the manufacturer “is deemed to be in bad faith in selling a defective product” and is liable to
the buyer for restitution of the purchase price and all damages recoverable under Art. 2545. Cox v. Lanier
Business Prods., Inc., 423 So.2d 690, 693 (La.App. 1 Cir.1982), writ denied, 429 So.2d 129 (La.1983).
Cf. Civil Code Art. 2541.
19

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Plaintiffs argue that rescission will exclusively and uniformly apply to the entire putative
class. However, Civil Code article 2541 provides that:
In an action for rescission because of a redhibitory defect the court may limit the
remedy of the buyer to a reduction of the price.
A plain reading of Article 2541 suggests that, notwithstanding Exxon’s liability for
rescission because of its status as a manufacturer, a remedy in quanti minoris is not
excluded.20 To the extent that rescission does not constitute the exclusive remedy,
individualized evidence of the degree of inconvenience would be required in order to
assess an appropriate quantum reduction in price. Finally, as the manufacturer of the
subject gasoline, Exxon has liability in redhibition for “reimbursement of the reasonable
expenses occasioned by the sale and those incurred in the preservation of the thing,
and also for damages and reasonable attorney fees.”21 Again, individualized proof will
be required to determine the extent of damages, if any, recoverable by individual class
members.
Accordingly, the Court finds that individual issues predominate over issues
common to the class, thereby rendering class certification inappropriate.
2. Unjust Enrichment
Although the Plaintiffs have asserted claims against Exxon for unjust enrichment,
they have not addressed how they will satisfy their burden of showing they can satisfy
the requirements for a class certification on this claim.

Plaintiffs simply argue that

Exxon was unjustly enriched by its allegedly knowing decision to sell defective and
contaminated gasoline at full market value. Plaintiffs cite a state law case as authority

20

The Court is unaware of any state jurisprudence which interprets the express provisions of Civil Code
article 2541 to manufacturer sellers.
21
La. Civ. Code Art. 2545.

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for the proposition that “class action is appropriately used to ‘disgorge unjust
enrichment’”22. The Court is unpersuaded. The following elements must be satisfied for
a claim of unjust enrichment: “(1) an enrichment; (2) an impoverishment; (3) a
connection between the enrichment and the impoverishment; (4) an absence of
‘justification’ or ‘cause’ for the enrichment and impoverishment; and (5) no other remedy
at law [is] available to plaintiff.”23 “Unjust enrichment principles are only applicable to fill
a gap in the law where no express remedy is provided.”24 Therefore, the Court will have
to make a legal determination of which class members have no other viable claim under
the law. For those individuals able to assert a claim of unjust enrichment, individualized
proof of the nature, extent, and degree of impoverishment or damage is related to the
alleged enrichment. Accordingly, the Court finds that these individualized inquiries will
predominate over the class issues. Therefore, class certification is inappropriate.
C. Ability to Ascertain Class
“It is elementary that in order to maintain a class action, the class sought to be
represented must be adequately defined and clearly ascertainable.”25

Where the

determination of class membership “is entangled with the underlying merits of the claim”
class certification is inappropriate.26 As stated above, the fact that the subject gasoline
was off-spec does not make it ipso facto “defective” for purposes of redhibition. Only
gasoline which was demonstrably useless or its use “so inconvenient” that it is
presumed the buyer would not have purchased it, is actionably defective under
22

Rec. Doc. 111, p 129, citing, McCastle v Robbins, 456 So. 2d 612 (1984).
Williams v. Chesapeake Louisiana, Inc., 2013 WL 951251, at *6 (W.D.La. Mar. 11, 2013)(quoting
Dugas v. Thompson, 71 So.3d 1059, 1067-68 (La.Ct. App. 2011).
24
Mouton v. State, 525 So.2d 1136, 1142 (La.Ct.App. 1988).
25
DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.1970).
26
In re Vioxx Products Liab. Litig., 2012 WL 2061883, at p. 5 (E.D. La. 2012).
23

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Louisiana law. The task of ascertaining class members, ie. “all purchasers of defective
fuel”, is not simply a matter of identifying purchasers of Exxon gas during a determined
time period. Rather, only persons who experienced uselessness or a degree of
inconvenience that gives rise to a presumption that he/she would not have purchased
the gasoline, meet the definition of a “purchaser of defective fuel”. Thus, inquiry into the
merits of each potential class member’s claim would be necessary to determine whether
an individual falls within the defined class. “The need to conduct such individual
inquiries to determine who qualifies as a member of the class undermines the
administrative benefits of Rule 23.”27
III.

CONCLUSION
For the foregoing reasons, the Motion for Class Certification28 is DENIED.
Signed in Baton Rouge, Louisiana, on March 17, 2015.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

27
28

Id.
Rec. Doc. 19.

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