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A Tale of 2 Trials: How These Defense Teams Notched Rare Class Action Verdicts

The Recorder

Keker, Van Nest & Peters and Wilkinson Walsh + Eskovitz scored separate defense verdicts in California this month in the rarest of trials: class actions.

The lawsuits were both in consumer class actions. On Feb. 21, Los Angeles Superior Court Judge Carolyn Kuhl issued a tentative verdict for Keker Van Nest’s client, Public Storage, following a bench trial. And, on Feb. 22, a federal jury in San Francisco sided with Wilkinson Walsh’s client, Bayer.

In some ways, the trials were like many others, relying on expert witnesses and the credibility of the lead plaintiffs who testified. But class action issues, and potential damages of hundreds of millions of dollars, made them unlike most trials.

“It’s still rare to see these cases go to trial,” said Sean Eskovitz, a founding partner at Wilkinson Walsh in Los Angeles. “In our case, it was a client that had the courage of convictions. It thought this was a case that didn’t have merit, knew it had put these challenged statements through a rigorous review process, based on science, and they thought this was a case that needed to be tried.”

Here’s a look at how both teams won:

Public Storage: Class Certification in Mind

Filed in 2016, the class action against Public Storage started as two lawsuits later consolidated. The case alleged that the Glendale, California-based provider of self-storage rentals had forced customers into paying for insurance that, although underwritten by a third party, was a “hidden revenue generator” for Public Storage. Filed by four lead plaintiffs, the lawsuit encompassed a class of 700,000 Public Storage customers in California and sought more than $100 million in restitution.

Last year, the judge, Kuhl, certified a class that alleged Public Storage made “uniform misleading statements” to customers about insurance coverage.

“It is important to emphasize that plaintiffs will have to prove their case based on the training materials and uniform sales representation,” Kuhl wrote in her class certification order. “If plaintiffs stray into reliance on individual class members’ assertions that sales employees deviated from the presentation, common issues will not predominate and the case will not be able to proceed as a class action.”

That was important because it meant that if the lead plaintiffs testified that sales representatives did something other than what Public Storage told them to do in the script or training manuals, they could not represent the unnamed class members.

“Certainly, when we deposed the plaintiffs, we had class certification in mind, because we didn’t think they had claims typical of the classes based on what happened to them,” said Simona Agnolucci, a partner at San Francisco’s Keker Van Nest.

The trial lasted three weeks. Keker Van Nest assembled a diverse team that also included partner Erin Meyer and associates Christopher Sun and Kristen Lovin.

Read the full report here