2018 Ohio 685
Ohio Ct. App.2018Background
- Proposed class (homeowners facing foreclosure) sued Jones & Associates and Ken Jones under the Ohio Consumer Sales Practices Act (CSPA), alleging deceptive solicitation letters.
- Plaintiffs moved to certify a class; the trial court denied the amended class-certification motion under R.C. 1345.09(B) for failure to show required prior notice to the defendant that its conduct was deceptive.
- Plaintiffs relied on three prior decisions (consent judgment, default judgment, and an FDCPA-based summary-judgment decision) to satisfy the prior-notice requirement.
- Defendants argued those judgments do not constitute a court determination that would provide prior notice under R.C. 1345.09(B).
- The trial court agreed; plaintiffs appealed, arguing consent and default judgments may provide prior notice if they contain substantially similar conduct.
- The court of appeals affirmed, holding plaintiffs failed to show a publicly available, prior judicial determination or rule that was substantially similar to the alleged conduct and that consent/default judgments or non-CSPA decisions did not supply the necessary notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior notice under R.C. 1345.09(B) can be satisfied by consent or default judgments | Consent/default judgments (or prior decisions) can provide prior notice if they contain substantially similar conduct | Consent/default judgments are not court determinations on the merits and thus cannot supply prior notice | Consent and default judgments (and non-CSPA decisions cited) do not constitute sufficient prior notice under R.C. 1345.09(B) |
| Whether a decision on FDCPA grounds provides notice under the CSPA | FDCPA violations often overlap with CSPA and can provide notice | An FDCPA ruling does not automatically equate to a CSPA determination absent showing of express CSPA prohibition | The court declined to find Stiltner provided CSPA notice; FDCPA decisions do not necessarily satisfy CSPA prior-notice requirement |
| Whether plaintiffs identified a publicly available court decision or AG rule substantially similar to defendants’ conduct | Plaintiffs cited prior entries they claim were available and similar | Defendants contended plaintiffs failed to show substantial similarity or publicly available determinations | Plaintiffs failed to show a publicly available, substantially similar prior judicial determination or rule |
| Whether trial court erred in denying class certification for failure to meet R.C. 1345.09(B) | Class certification should be allowed because prior judgments put defendants on notice | Trial court correctly found statutory prior-notice requirement unmet | Affirmed: denial of class certification was correct |
Key Cases Cited
- Philip Morris USA, Inc. v. Marrone, 850 N.E.2d 31 (Ohio 2006) (R.C. 1345.09(B) requires prior notice in the form of a rule or a prior court determination and that the defendant’s conduct be substantially similar to previously declared deceptive acts)
- Taylor v. First Resolution Invest. Corp., 72 N.E.3d 573 (Ohio 2016) (discussing overlap between FDCPA and CSPA and cautioning against assuming coterminous application)
- Pattie v. Coach, Inc., 29 F.Supp.3d 1051 (N.D. Ohio 2014) (consent and default judgments do not constitute a judicial determination sufficient for prior notice under R.C. 1345.09(B))
- Gascho v. Global Fitness Holdings, L.L.C., 918 F.Supp.2d 708 (S.D. Ohio 2013) (interpreting R.C. 1345.05 and 1345.09 to require a court’s final determination with supporting reasoning for prior notice)
- Robins v. Global Fitness Holdings, L.L.C., 838 F.Supp.2d 631 (N.D. Ohio 2012) (rejecting reliance on consent judgments to satisfy prior-notice requirement under the CSPA)