In Nyokoyama v. Midland National Life Insurance Co., 2009 WL 2634770 (9th Cir. Aug. 28, 2009), the court held that an action under the Hawaii Deceptive Practices Act relating to the sale of annuities in Hawaii by Midland National Life Insurance Company was appropriate for certification as a class action because the Act did not require a “showing of individual reliance.” 2009 WL 2634770, at *1.    

The action was commenced by three Hawaiian senior citizens who had each purchased Midland’s annuities from an independent broker. They asserted their action on behalf of a putative class of Hawaiian senior citizens who had purchased annuities from Midland between 2001 and 2005.  

The court found two circumstances dispositive. First, the Hawaii Supreme Court has construed the term “deceptive acts” to require only a showing that the acts “mislead consumers acting reasonably under the circumstances.” 2009 WL 2634770, at *4. “Therefore, Hawaii’s consumer protection laws look to a reasonable consumer, not to the particular consumer.” Id. “This does not involve an individualized inquiry.” 2009 WL 2634770, at *5. 

Second, the plaintiffs alleged only that there are omissions and misstatements in Midland’s brochures. “The plaintiffs have thus crafted their lawsuit to avoid individual variance among the class members.” Id. Therefore, the “plaintiffs’ case will not require the fact-finder to parse what oral representations each broker made to each plaintiff.” Id.

Finally, the court observed that in the Ninth Circuit individualized “damage calculations alone cannot defeat class action treatment.” 2009 WL 2634770, at *6.