On September 11, 2009, the United States District Court, Eastern District of California, issued a substantial class certification opinion in Cartwright, et al. v. Viking Industries, Inc. Cartwright is a consumer class action alleging that certain Viking windows are defective, allowing water and air intrusion into homes. The suit alleged claims for Strict Products Liability, Negligence, Breach of Express Warranty, Breach of Implied Warranty, Violation of the Consumer Legal Remedies Act (“CLRA”), Violation of California’s Unfair Competition Law (“UCL”), Fraudulent Concealment, and Restitution.

The District Court ultimately certified a class for the following claims: CLRA, UCL, fraudulent concealment and unjust enrichment. The District Court denied certification of strict liability and negligence claims. In a thorough opinion that emphasizes a number of pro-consumer certification decisions, the Court certified fraudulent concealment claims by allowing a presumption of reliance. The Court's analysis is as interesting for what it does not cite as for what it does cite. Tobacco II is not mentioned. But the Court does cite Mazza v. Am. Honda Motor Co., 254 F.R.D. 610 (C.D. Cal. 2008), which is currently on appeal to the Ninth Circuit following a 23(f) Petition for Permission to Appeal, and Chamberlan v. Ford Motor Corp., 223 F.R.D. 524, 526-27 (N.D. Cal. 2004).

The Opinion also cites to some principles of federal certification that may be surprising to practitioners that rarely venture outside of California's Superior Court. For instance, the Court notes that evidence inadmissible at trial, and, in particular, expert testimony, may be considered as part of a certification decision. "'On a motion for class certification, the court may consider evidence that may not be admissible at trial.'" Order, citing Mazza, 254 F.R.D. at 616 (citing, in turn, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)). "'[R]obust gatekeeping of expert evidence is not required; rather, the court should ask only if expert evidence is "useful in evaluating whether class certification requirements have been met."' Ellis v. Costco Wholesale Corp., 240 F.R.D. 627, 635 (N.D. Cal. 2007)."

Now let's see if the acrobat.com embed object will display here:

If you don't see the flash object above, you can directly download the Order. Thanks to Mark Moore for the tip.