2001-01-26 Harley-Davidson Response - Minnesota Judicial Branch

common law fraud and breach of contract claims arising out of the sale of self service postal units.
As in the present case, the primary impetus of the sales was face to face meetings between the
seller and the purchasers, wherein the seller allegedly made material oral misrepresentations.
Judge Devitt adopted Simon and determined that oral misrepresentation claims do not present
common issues of fact. According to the Court:
The oral misrepresentation issue is the most substantial bar to a class
action on the fraud-based claims. It appears that the sales procedure
in this case encompassed face-to-face meetings between the agents
of the seller and the prospective purchasers. As noted above, one
advertisement was mailed, but the primary impetus for a sale was
the personal confrontation. . . . [I]t appears that since purcha&rs
were individually solicited, the substance and materiality of the
misrepresentations made to them will have to be proved
individually. Therefore, the court wil’l follow the well-established
line of cases which holds that actions based on oral
misrepresentations do not present common issues of fact. Simon v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 482 F.2d 880 (5th Cir.
1973); Miller v. Central Chinchilla Group. Inc., 66 F.R.D. 411
(S.D.Iowa 1975); Ingenito v. Bermec Corp., supra.
In the present case, the claims of petitioners encompass face-to-face meetings with different
Twin Cities Harley-Davidson salespeople, on different dates, and at different Twin Cities Harley
Davidson locations, wherein they were allegedly promised motorcycles would be made available
at MSRP. Such claims will necessarily have to be proved individually and do not involve common
questions of fact.
III. CONSOLIDATION IS NOT JUSTIFIED BY TED3 CONSIDERATIONS UNDER
THE RULES
&
Consideration of the factors provided at Gen.R.Prac. 113.02 do not favor consolidation.
The factors argued to favor consolidation are reviewed below.