Peter Rosenow

Summary

The separate opinion would reverse and remand for the trial judge to reconsider class certification without relying on impermissible merits-based determinations. It disagrees with the majority's restriction on examining whether the early termination fee was reasonable, a penalty, or related to anticipated losses, and it also objects to striking the defense expert's explanatory testimony. Brown, J., dissenting in part and concurring in part, would preserve the trial court's discretion to evaluate commonality and predominance on remand.