United States District Court, D. Arizona
G. Campbell, United States District Judge.
ask the Court to reconsider its order denying their motion
for class certification. Doc. 134. Defendants oppose the
motion. Doc. 140. For the reasons that follow, the Court will
deny the motion for reconsideration.
in this district have identified four circumstances where a
motion for reconsideration will be granted: (1) the moving
party has discovered material differences in fact or law from
those presented to the Court at the time of its initial
decision, and the party could not previously have known of
the factual or legal differences through the exercise of
reasonable diligence; (2) material factual events have
occurred since the Court's initial decision; (3) there
has been a material change in the law since the Court's
initial decision; or (4) the moving party makes a convincing
showing that the Court failed to consider material facts that
were presented to the Court at the time of its initial
decision. See, e.g., Motorola, Inc. v.
J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581,
586 (D. Ariz. 2003). Motions for reconsideration are
disfavored, and are not the place for parties to make new
arguments not raised in their original briefs. See
Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841
F.2d 918, 925-26 (9th Cir. 1988).
Court denied Plaintiffs' motion to certify a proposed
class and a California subclass under Rule 23(b)(2) and (3)
of the Federal Rules of Civil Procedure. The primary focus of
the parties' briefing and argument was Rule 23(b)(3). The
Court found that individual issues would predominate over
common issues in the class and subclass, making certification
inappropriate under Rule 23(b)(3). Doc. 130 at 2-21. The
Court denied certification under Rule 23(b)(2) because the
class was not suitable for injunctive relief. Id. at
Plaintiffs' First Objection.
first argument focuses on the following sentence from section
III.B of the Court's order: “Given this target
market, it is likely that the class includes sophisticated
computer users, and an individualized inquiry would be
required to determine whether class members had the
sophistication to understand that VM meant virtualized
machine even if they did not visit the /servers
webpage.” Doc. 130 at 7. Plaintiffs argue that this
language “sets forth the wrong standard for determining
if an advertisement was likely to deceive” under the
Arizona Consumer Fraud Act (“ACFA”). Doc. 134 at
4. Plaintiffs argue that Arizona law requires a much lower
standard, one looking to “whether the ‘least
sophisticated consumer' would be misled [by the
advertising in question] - not the most sophisticated or
target consumer.” Id. at 5 (citing Madsen
v. W. Am. Mort. Co., 694 P.2d 1228, 1232 (Ariz.Ct.App.
Court first notes that Plaintiffs did not make this argument
in their motion for class certification or their reply
memorandum. Docs. 109, 123. They never cited the
Madsen case and never argued that the “least
sophisticated consumer” standard applied to their ACFA
claim. Id. As noted above, a motion for
reconsideration is not the place for parties to make
arguments not raised in their original briefs. This is a
sufficient basis for denying Plaintiffs' first ground for
Court also concludes that it would have denied this ground
for relief even if it was timely raised. It is true that some
Arizona cases have said that the ACFA employs a “least
sophisticated consumer” test for determining whether a
communication has a tendency to deceive. Madsen, the
primary case relied on by Plaintiffs, cited a Second Circuit
case as support for this standard. 694 P.2d at 1232 (citing
Exposition Press, Inc. v. FTC, 295 F.2d 869 (2d Cir.
1961)). Exposition Press, in turn, was an
enforcement action brought by the FTC alleging deceptive
advertising. In such an action, the FTC must show that an
advertisement has a “tendency to deceive” the
public. 295 F.2d at 872. And in making such a showing, the
FTC “should look not to the most sophisticated readers
but rather to the least.” Id.
ACFA has the same public protection purpose. The statute
expressly authorizes the Arizona Attorney General to bring
enforcement actions against deceptive advertisers. A.R.S.
§ 44-1524. The ACFA has been used in this manner.
See, e.g., State ex rel. Horne v. Autozone, Inc.,
258 P.3d 289 (Ariz.Ct.App. 2011), opinion vacated in
part, 275 P.3d 1278 (Ariz. 2012).
agency such as the FTC or the Arizona Attorney General brings
an enforcement action alleging deceptive advertising, it
makes no sense to require that the agency prove it was misled
by the advertising. The action is brought on behalf of
consumers generally, not the agency itself. As a result, the
agency must show only that the advertising had a
“tendency” to mislead the public. Exposition
Press, 295 F.2d at 872 (FTC must show that the
advertising had “the tendency and capacity to deceive a
substantial portion of the purchasing public”). Indeed,
enforcement agencies need not present evidence from
consumers. Id. (“Actual consumer testimony is
in fact not needed to support an inference of deceptiveness
by the [FTC].”).
language relied on by Plaintiffs' motion for
reconsideration concerns the tendency of an advertisement to
mislead. This is the key language from Madsen:
The term “deceptive” has been interpreted to
include representations that have a “tendency and
capacity” to convey misleading impressions to consumers
even though interpretations that would not be misleading also
are possible. Chrysler Corp. v. FTC, 561 F.2d 357,
363 (D.C. Cir. 1977); Goodman v. FTC, 244 F.2d 584
(9th Cir.1957), reaffirmed in Simeon Management Corp. v.
FTC, 579 F.2d 1137 (9th Cir.1978). The meaning and
impression are to be taken from all that is reasonably
implied, not just from what is said, Spiegel, Inc. v.
FTC, 411 F.2d 481 (7th Cir.1969), and in evaluating the
representations, the test is whether the least ...