Commercial Division Blog

Posted: May 4, 2015 / Categories Commercial, Class Actions

First Department Affirms Denial of Class Certification

On April 28, 2015, the First Department issued a decision in Egan v. Telomerase Activation Sciences, Inc., 2015 NY Slip Op. 03484, affirming a denial of class certification.

In Egan, the plaintiffs moved for class certification of their General Business Law § 349 claims. The trial court denied the motion and the First Department affirmed, explaining:

In order to state a claim under section 349, the transactions at issue must have occurred in New York. Because plaintiffs failed to show that any other putative class members made the relevant transactions in New York, they failed to meet the numerosity requirement for class certification. Plaintiffs also failed to show that common issues would predominate because they could not point to any specific advertisement or public pronouncement by defendants seen by all putative class members. Nor are the claims of the individual plaintiffs typical of those of the putative class. Plaintiff Egan never purchased the product, but ingested it at work while employed by defendants. Plaintiff Murray never saw any statement by defendant, but simply purchased a bottle of the product upon the recommendation of a friend. Moreover, the individual plaintiffs are not adequate representatives of the proposed class. Egan previously sued defendants for their alleged discrimination, and he is subject to a defamation counterclaim in this action. Murray appears to be involved in this action only because Egan is his friend. This raises questions as to whether they would pursue their own agenda, contrary to the interests of the class. There is no basis to conclude that a class action is a superior method of proceeding given that none of the other prerequisites under CPLR 901 have been satisfied.

(Internal quotations and citations omitted) (emphasis added).