Use the "Consumer" in Consumer Class Actions to Defeat Certification

Plaintiffs routinely bring consumer class actions under statutes that allow only consumers—not businesses—to bring claims, or that are limited to transactions solely for personal or household purposes. See, e.g., Electronic Funds Transfer Act, 15 U.S.C. § 1693a(2); Real Estate Settlement Procedures Act, 12 U.S.C. § 2606(a)(1); California's Consumer Legal Remedies Act, Cal. Civ. Code § 1780. But in some cases, the "consumer" requirement can be the Achilles' heel for class certification. If it is difficult to determine whether a particular customer is a "consumer" without individualized inquiries, a proposed class action may flunk the predominance, ascertainability, and manageability requirements for class certification.