December 14, 2017
E. R. Bartholic, with whom was Thomas W. Witherington, for
the appellant (plaintiff in Docket No. SC 19874 and defendant
in Docket No. SC 19875).
J. Morgan, for the appellees (named defendant in Docket No.
SC 19874 and plaintiffs in Docket No. SC 19875).
Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn,
in the first case, to recover damages for breach of contract,
and for other relief, brought to the Superior Court in the
judicial district of Fairfield and transferred to the
judicial district of Stamford-Norwalk, where the defendants
filed a counterclaim, and action, in the second case, to
recover damages for, inter alia, breach of contract, and for
other relief, brought to the Superior Court in the judicial
district of Stamford-Nor-walk, where the cases were
consolidated; thereafter, the court, Heller, J.,
granted the motions for a determination of denial of class
certification filed by the plaintiff in the first action and
the defendant in the second action and denied the motions for
class certification filed by the named defendant in the first
action and the plaintiffs in the second action; subsequently,
the court, Heller, J., granted the motions for class
certification filed by the named defendant in the first
action and the plaintiffs in the second action, and the
plaintiff in the first action and the defendant in the second
action appealed; subsequently, the case was transferred to
the judicial district of Hartford, Complex Litigation Docket.
Petroleum Company, the counterclaim defendant and the
defendant, respectively, in the two cases that comprise this
consolidated action (defendant), appeals from the trial
court's orders certifying class actions against it. The
class actions are premised on allegations that the defendant
overcharged service station operators and franchisees for
gasoline products. Generally, the defendant claims that the
trial court abused its discretion in certifying the
classbecause it failed to apply the
‘‘rigorous analysis'' that is required
before such a certification may be granted. In particular,
the defendant claims that the trial court's error is most
clearly evidenced by its failure to address various elements
of the causes of action and the special defenses when it
determined that common issues predominated. We conclude that
the defendant has failed to establish that the trial court
abused its discretion in ordering class certification.
record reveals the following facts, assumed to be true by the
trial court for purposes of the certification issues or
otherwise undisputed, and procedural history. Kennynick, LLC,
and Faugno Acquisition, LLC (Faugno) (collectively, plaintiffs),
service station operators and were franchised dealers for
gasoline products supplied by the defendant, which is a
wholesale supplier. In 2009, the plaintiffs commenced an
action against the defendant, purportedly on behalf of
themselves and other persons who had been supplied with
gasoline products by the defendant. The complaint alleged
that the proposed class members had been overcharged in two
respects. First, it alleged that the defendant had charged
class members the federal gasoline tax at a rate of 18.4
cents per gallon without applying a federal tax credit that
would have had the effect of reducing that rate and that had
been effective between January 1, 2005 and December 31,
2011. Second, it alleged that, at all relevant
times since September 27, 2004, the defendant had charged
class members the Connecticut gross receipts tax on the basis
of the price of gasoline as delivered, and thus had
improperly charged for state tax on the defendant's
profit (including the federal tax overcharge) and delivery.
In reliance on these allegations, the six count complaint set
forth claims of (1) breach of contract, (2) unjust
enrichment, (3) violation of the Connecticut Petroleum
Franchise Act, General Statutes § 42-133j et seq., (4)
violation of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq., (5)
violation of the good faith requirement under the Uniform
Commercial Code, General Statutes § 42a-2-305 (2), and
(6) misrepresentation. The plaintiffs sought relief including
money damages for past losses, injunctive relief prohibiting
the defendant from conduct that would cause future losses,
and punitive damages.
thereafter, the defendant commenced a separate action against
one of the plaintiffs, Faugno, alleging breach of
contract. In response, Faugno filed a counterclaim,
also styled as a proposed class action, which in all material
respects mirrored the plaintiffs' complaint in the
earlier action. Pursuant to the plaintiffs' motions, and
in the absence of objection from the defendant, the trial
court consolidated the two actions.
2015, after the plaintiffs had obtained compliance with
discovery requests, they moved for orders certifying the
action as a class action pursuant to Practice Book §
The defendant filed an opposition, which included a
supporting affidavit by its vice president. The trial court
held a hearing on the motion and reserved decision.
Thereafter, the trial court issued orders certifying a class
action on all counts. The orders defined the class as
‘‘all entities or persons who: (i) purchased
gasoline from [the defendant] during the period September 27,
2004 to date; (ii) were charged federal gasoline tax at a
rate of 18.4 cents per gallon on such gasoline purchases;
(iii) did not receive the federal . . . tax credit, while it
was in effect, on such gasoline purchases; and (iv) were
charged state gross receipts tax on such gasoline purchases
based on the price of gasoline, as delivered.'' The
orders also approved the plaintiffs as class representatives
and their counsel as class counsel. The orders indicated that
further articulation would follow.
trial court thereafter issued a memorandum of decision
setting forth that articulation, which we explore in fuller
detail later in this opinion. In that decision, the trial
court noted that the plaintiffs had identified at least
eighty-one of the defendant's gasoline customers during
the relevant time period as potential members of the proposed
class: forty-four had supply contracts with the defendant and
thirty-seven had purchased gasoline on an as invoiced basis.
With regard to those with written contracts, there were four
subclasses with varied arrangements, but all contracts
contained an identical provision stating that the
‘‘prices include taxes . . . which [the
defendant] may be required to collect or pay pursuant to any
present or future laws . . . .'' The court pointed to
the fact that all of the potential class members had received
invoices from the defendant. The court noted that the
plaintiffs had reviewed ‘‘a ‘substantial
sampling' of the more than 14, 000 invoices produced by
[the defendant] in discovery'' and had represented
that ‘‘the invoices appear to be almost identical
to the invoices that the [plaintiffs] received for
payment.'' The court addressed separately each
requirement for class certification under Practice Book
§ 9-7, concluding that each had been satisfied. Largely
in reliance on the facts and legal issues cited in that
analysis, the court also concluded that each of the policy
considerations under Practice Book § 9-8 weighed in
favor of allowing the action to proceed as a class action.
defendant appealed from the orders certifying the class. See
footnote 1 of this opinion. After the court issued its
memorandum of decision, the defendant did not seek any
appeal, the defendant contends that the trial court abused
its discretion in granting class certification because it
failed to apply the requisite ‘‘rigorous
analysis'' to each class certification requirement.
Instead, the defendant contends, the trial court merely
required ‘‘ ‘some showing' ''
to support each requirement, engaged in a
‘‘cursory review of the claims and evidence,
'' and disregarded certain evidence, elements, and
defenses. We conclude that, in light of the claims and
arguments advanced to the trial court, its grant of class
certification was not an abuse of discretion.
the nature of the defendant's claims, a discussion of the
applicable standards that guide our review takes on
heightened significance. Therefore, clarifying certain
aspects of these standards must be our starting point.
rules of practice set forth a two step process for trial
courts to follow in determining whether an action or claim
qualifies for class action status. First, a court must
ascertain whether the four prerequisites to a class action,
as specified in Practice Book § 9-7, are satisfied.
These prerequisites are: (1) numerosity- that the class is
too numerous to make joinder of all members feasible; (2)
commonality-that the members have similar claims of law and
fact; (3) typicality-that the [representative]
plaintiffs' claims are typical of the claims of the
class; and (4) adequacy of representation-that the interests
of the class are protected adequately. . . .
if the foregoing criteria are satisfied, the court then must
evaluate whether the certification requirements of Practice
Book § 9-8  are satisfied. These requirements are:
(1) predominance-that questions of law or fact common to the
members of the class predominate over any questions affecting
only individual members; and (2) superiority-that a class
action is superior to other available methods for the fair
and efficient adjudication of the controversy.''
(Internal quotation marks omitted.) Neighborhood
Builders, Inc. v. Madison, 294 Conn.
651, 658, 986 A.2d 278 (2010).
the class action proponent's burden to prove that all of
the requirements have been met. Id., 656-57. To
determine whether that burden has been met, we have followed
the lead of the federal courts; see General Telephone Co.
of the Southwest v. Falcon, 457 U.S. 147, 161,
102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); directing our trial
courts to undertake a ‘‘ ‘rigorous
analysis.' '' Neighborhood Builders, Inc.
v. Madison, supra, 294 Conn. 656; Marr
v. WMX Technologies, Inc., 244 Conn. 676, 680,
711 A.2d 700 (1998); see also Collins v. Anthem
Health Plans, Inc., 275 Conn. 309, 322-23, 880 A.2d 106
(2005) (‘‘[b]ecause our class certification
requirements are similar to those embodied in rule 23 of the
Federal Rules of Civil Procedure, and our jurisprudence
governing class actions is relatively undeveloped, we look to
federal case law for guidance in construing the provisions of
Practice Book §§ 9-7 and 9-8'' [footnote
not previously articulated with any specificity what a
‘‘rigorous analysis'' by the trial court
necessarily entails. Although some of the defendant's
specific concerns are addressed in the sections that follow,
there are certain overarching parameters that can be gleaned
from the case law and other authoritative sources.
‘‘[A] ‘rigorous analysis' ordinarily
involves looking beyond the allegations of the
plaintiff's complaint. The rigorous-analysis requirement
means that a class is not maintainable merely because the
complaint parrots the legal requirements of the class-action
rule. . . .
applying the criteria for certification of a class action,
the [trial] court must take the substantive allegations in
the complaint as true, and consider the remaining pleadings,
discovery, including interrogatory answers, relevant
documents, and depositions, and any other pertinent evidence
in a light favorable to the plaintiff. However, a trial court
is not required to accept as true bare assertions in the
complaint that class-certification prerequisites were met. .
. . Class determination generally involves considerations
that are enmeshed in the factual and legal issues comprising
the plaintiff's cause of action.'' (Footnotes
omitted.) 59 Am. Jur. 2d 542-43, Parties § 89 (2012);
accord Comcast Corp. v. Behrend, 569 U.S.
27, 33-34, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013);
General Telephone Co. of the Southwest v.
Falcon, supra, 457 U.S. 160-61; Collins v.
Anthem Health Plans, Inc., supra, 275 Conn. 321.
a rigorous analysis ‘‘frequently entail[s]
overlap with the merits of the plaintiff's underlying
claim.'' (Internal quotation marks omitted.)
Comcast Corp. v. Behrend, supra, 569 U.S.
33-34; accord In re Initial Public Offerings Securities
Litigation, 471 F.3d 24, 41 (2d Cir. 2006).
‘‘In determining the propriety of a class action,
[however] the question is not whether the plaintiff or
plaintiffs have stated a cause of action or will prevail on
the merits, but rather whether the requirements of [the class
action rules] are met.'' (Internal quotation marks
omitted.) Collins v. Anthem Health Plans,
Inc., supra, 275 Conn. 321.
purposes of the present case, it is important to emphasize
that although a rigorous analysis of these requirements may
entail consideration of various factors, such an analysis
‘‘does not require the court to assign weight to
any of the criteria listed, or to make written findings as to
each factor, but merely requires the court to weigh and
consider the factors and come to a reasoned conclusion as to
whether a class action should be permitted for a fair
adjudication of the controversy.'' 59 Am. Jur. 2d,
supra, § 89, p. 543. ‘‘The trial court,
[well positioned] to decide which facts and legal arguments
are most important to each [rule's] requirement,
possesses broad discretion to control proceedings and frame
issues for consideration under [the rule]. . . . But proper
discretion does not soften the rule: a class may not be
certified without a finding that each . . . requirement is
met.'' (Citation omitted.) In re Hydrogen
Peroxide Antitrust Litigation, 552 F.3d 305, 310 (3d
no party has a right to proceed via the class mechanism . . .
doubts regarding the propriety of class certification should
be resolved in favor of certification.'' (Internal
quotation marks omitted.) Collins v. Anthem
Health Plans, Inc., supra, 275 Conn. 321. Even if
certification is granted, ‘‘the trial court is
authorized to monitor developments bearing on the propriety
of its class certification orders, and to amend those orders
in light of subsequent developments. . . . In the event that
evidence later demonstrates that [an] alleged conflict
exists, the trial court may then revisit the issue.''
(Citations omitted.) Collins v. Anthem Health
Plans, Inc., 266 Conn. 12, 40, 836 A.2d 1124 (2003).
clarified the standards that govern the trial court's
class certification decision, we note that the standards that
govern our review of that decision are well settled.
‘‘We apply an abuse of discretion standard both
[to] the lower court's ultimate determination on
certification of a class as well as to its rulings that the
individual [class certification] requirements have been met.
. . . While our review of the legal standards applied by the
[trial] court and the court's other legal conclusions is
de novo . . . the [trial] court's application of
those standards to the facts of the case is again reviewed
only for abuse of discretion . . . . This standard means that
the [trial] court is empowered to make a decision-of
its choosing-that falls within a range of
permissible decisions, and we will only find abuse when the
[trial] court's decision rests on an error of law . . .
or a clearly erroneous factual finding, or . . . its decision
. . . cannot be located within the range of permissible
decisions.'' (Citations omitted; emphasis in
original; internal quotation marks omitted.) Myers
v. Hertz Corp., 624 F.3d 537, 547 (2d Cir.
2010), cert. denied, 565 U.S. 930, 132 S.Ct. 368, 181 L.Ed.2d
234 (2011). Moreover, we afford ‘‘even greater
deference when reviewing a [trial court's] decision to
certify a class than when reviewing a decision declining to
do so.'' (Internal quotation marks omitted.)
Collins v. Anthem Health Plans, Inc.,
supra, 266 Conn. 23-24.
this legal backdrop in mind, we turn to the defendant's
a secondary argument by the defendant, we first dispose of
the defendant's broad contention that the trial
court's grant of class certification is improper under
all of the prerequisites found in Practice Book § 9-7:
numerosity; commonality; typicality; and adequacy of
representation. We are largely in agreement with the
plaintiffs that the defendant's analysis of these
requirements is an ‘‘unfocused, scattershot
attack'' on the trial court's decision,
effectively seeking de novo review. As this court previously
has observed, ‘‘such wholesale attacks rarely
produce results, tend to cloud the real issues, and in
themselves cast doubts on the appellants'
claims.'' Scribner v. O'Brien,
Inc., 169 Conn. 389, 391, 363 A.2d 160 (1975).
Moreover, adequate briefing requires more than conclusory
assertions untethered to any specific claim. See State v.
Buhl, 321 Conn. 688, 726, 138 A.3d 868 (2016)
(concluding that Appellate Court properly determined that
claim was inadequately briefed because ‘‘the
briefing of the defendant's claims was not only short,
but confusing, repetitive, and disorganized'').
Nonetheless, insofar as we can glean specific arguments
directed at specific requirements, we address them and
conclude that none merits reversal of the trial court's
noted previously, the requirement in Practice Book § 9-7
(1) is met where ‘‘the class is so numerous that
joinder of all members is impracticable . . . .'' The
defendant appears to contend that the trial court should have
excluded from the certified class those customers who have
arbitration or jury waiver clauses in their contracts. It
contends that these customers either will be barred from
participating in the action by ...