Certification Denied On Predominance Grounds For Claim Alleging Overcharges By Carrier

In a recent decision, the U. S. District Court for the Eastern District of New York applied Wal-Mart to a proposed Rule 23(b)(3) class and held that common issues did not predominate because the "key issue" was not common. Frey v. Bekins Van Lines, Inc., 2012 U.S. Dist. LEXIS 46412 (E.D.N.Y. Apr. 2, 2012).

In Frey, the plaintiffs sought to represent a putative class of people who claimed to have been overcharged by the defendant Bekins, claiming that the overcharges stemmed from a company policy. The plaintiffs claimed that the defendant – which charged by weight – would initially provide a low estimate, but when generating the final bill would either inflate the true weight or fabricate it, thereby increasing the price. Despite the allegation of a uniform policy, the court looked to the reasoning in Wal-Mart and held that common issues did not predominate. Citing Wal-Mart's focus on the factual dispute most central to liability (in Wal-Mart, "the reason for