Schojan et al v. Papa John's International, Inc. et al

Filing 80

ORDER: Plaintiffs' Motion for Class Certification 60 is GRANTED. Plaintiffs' Motion for Oral Argument or, in the Alternative, Motion for Leave to File a Reply to Defendants' Response in Opposition to Motion for Class Certification [7 2] is DENIED. Papa John's International and Papa John's USA's Unopposed Motion for Leave to File a Supplemental Brief in Opposition to Class Certification 75 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 12/16/2014. (AKH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRUCE SCHOJAN, individually
and on behalf of all others
similarly situated, ET AL.
Plaintiffs,
v.

Case No. 8:14-cv-1218-T-33MAP

PAPA JOHNS INTERNATIONAL, INC.,
ET AL. 1,
Defendants.
_______________________________/
ORDER
This cause comes before the Court for consideration of
Plaintiffs,

Bruce

Schojan,

Sean

Timmons,

and

Christopher

Tollerton’s Motion for Class Certification (Doc. # 60) filed
on October 16, 2014. Defendant Papa John’s International,
Inc.

and

Papa

John’s

USA,

Inc.

(“Papa

John’s”)

filed

a

response in opposition (Doc. # 68) on November 18, 2014. Upon
due

consideration

and

for

the

reasons

set

forth

below,

Plaintiffs’ Motion for Class Certification is granted.
I.

1

Background

The remaining Defendants in this action are Papa John’s
International, Inc. and Papa John’s USA, Inc. This Court shall
refer to the Defendants collectively as Papa John’s. However,
the Defendants refer to Papa John’s International, Inc. as PJ
International and Papa John’s USA, Inc. as PJ USA.

Plaintiffs filed this putative class action in state
court on March 28, 2014, alleging that Papa John’s negligently
misrepresented a sales tax for food delivered to customers
that included a sales tax on the Papa John’s delivery fee.
(Doc. # 2 at ¶ 40). Furthermore, Plaintiffs claim that Papa
John’s charged and collected excess sales tax on delivery
fees charged to its customers in violation of Florida law.
(Id.).

Specifically,

Plaintiffs

allege

that

Papa

John’s

included in the base amount upon which the tax was calculated
a $3.00 delivery fee that Plaintiffs claim is exempt from
taxation under Florida law because it is not “part of the
[relevant pizza] sale[s].” (Doc. # 15 at 2).
Papa John’s removed the case to this Court on May 22,
2014, under the Class Action Fairness Act. (Doc. # 1). On
June 11, 2014, Plaintiffs filed an unopposed motion to extend
the time to file a motion for class certification. (Doc. #
13). This Court granted the motion in part and extended the
deadline to September 15, 2014. (Doc. # 14). Thereafter, on
June 13, 2014, Papa John’s moved to dismiss or alternatively
stay this action “because the relief sought – a refund of a
purported sales tax overcharge – is barred by section 213.756,
Florida Statutes, by the voluntary payment doctrine, and
because Plaintiffs failed to exhaust their administrative

2

remedies with the Florida Department of Revenue.” (Doc. #
14).
This Court denied Papa John’s motion to dismiss on July
23, 2014, and directed Papa John’s to file a response to the
Complaint. (Doc. # 34). On September 15, 2014, the parties
filed agreed motions to seal the motion for summary judgment
and motion for class certification. (Doc. ## 50, 51). The
Court denied the parties’ request to seal documents and
directed the motions be filed on the open record. (Doc. #
48). Plaintiffs then filed their motion to certify class on
September 30, 2014. (Doc. # 57). That motion was denied
without prejudice when this Court granted Plaintiffs leave to
amend their Complaint and directed that the motion to certify
class could be refiled in conjunction with the new complaint.
(Doc. # 58).
Plaintiffs filed the Second Amended Complaint on October
6, 2014. (Doc. # 59). The Motion to certify class, which is
presently before this Court, was filed on October 16, 2014.
(Doc. # 60). Papa John’s requested an extension of time to
respond to the Motion until and including November 17, 2014,
which this Court granted. (Doc. ## 63, 64). Papa John’s filed
its response in opposition to the Motion on November 18, 2014.
(Doc. # 68).

3

II.

Legal Standard
A district court has broad discretion in determining

whether to certify a class. Washington v. Brown & Williamson
Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992); Griffin
v. Carlin, 755 F.2d 1516, 1531 (11th Cir. 1985). As explained
in Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d
1181, 1187 (11th Cir. 2003), Federal Rule of Civil Procedure
23

“establishes the legal roadmap courts must follow when

determining

whether

class

certification

is

appropriate.”

Under Rule 23(a), a class may be certified only if:
(1)

the class is so numerous that joinder of
all members is impracticable;

(2)

there are questions of law or fact common
to the class;

(3)

the
claims
or
defenses
of
the
representative parties are typical of the
claims or defenses of the class; and

(4)

the representative parties will fairly
and adequately protect the interests of
the class.

Fed. R. Civ. P. 23(a).

The burden of proof to establish the

propriety of class certification rests with the advocate of
the class, and failure to establish any one of the four Rule
23(a) factors and at least one of the alternative requirements
of Rule 23(b) precludes class certification. Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 613-14 (1997).

4

This Court must conduct a rigorous analysis of the Rule
23 prerequisites before certifying a class. Gen. Tel. Co. of
the S.W. v. Falcon, 457 U.S. 147, 161 (1982). “Although the
trial court should not determine the merits of the plaintiffs’
claim at the class certification stage, the trial court can
and should consider the merits of the case to the degree
necessary to determine whether the requirements of Rule 23
will be satisfied.” Valley Drug Co., 350 F.3d at 1188, n.15;
see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 469
(1978)(“The

class

determination

generally

involves

considerations that are enmeshed in the factual and legal
issues comprising the plaintiff’s cause of action. . . . The
more complex determinations required in Rule 23(b)(3) class
actions

entail

even

greater

entanglement

with

the

merits.”)(internal citations omitted).
III. Analysis
A.

Rule 23(a) Requirements

Before a class can be certified through one of the
provisions of Rule 23(b), it must first satisfy several
prerequisites:

(1)

numerosity;

(2)

commonality;

typicality; and (4) adequate representation.

(3)

See Buford v.

H & R Block, Inc., 168 F.R.D. 340, 347 (S.D. Ga. 1996)(quoting
Fed. R. Civ. P. 23(a)).

5

Under Rule 23(a), a class may be certified only if (1)
the class is so numerous that joinder of all members would be
impracticable; (2) there are questions of fact and law common
to

the

class;

(3)

the

claims

or

defenses

of

the

representatives are typical of the claims and defenses of the
unnamed members; and (4) the named representatives will be
able to represent the interests of the class adequately and
fairly.

“Failure to establish any one of these four factors

and at least one of the alternative requirements of Rule 23(b)
precludes class certification.” Valley Drug Co., 350 F.3d at
1188.
1.

Numerosity

Federal Rule of Civil Procedure 23(a)(1) requires that
the class be “so numerous that joinder of all members is
impracticable.”

Fed.

R.

Civ.

P.

23(a)(1).

While

“mere

allegations of numerosity are insufficient,” Fed. R. Civ. P.
23(a)(1) imposes a “generally low hurdle,” and “a plaintiff
need not show the precise number of members in the class.”
Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D.
674, 684 (S.D. Fla. 2013); see Vega v. T-Mobile USA, Inc.,
564 F.3d 1256, 1267 (11th Cir. 2009); Evans v. U.S. Pipe &
Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983)(explaining
that the class representative is not required to establish

6

the exact number in the proposed class). “Nevertheless, a
plaintiff still bears the burden of making some showing,
affording the district court the means to make a supported
factual finding that the class actually certified meets the
numerosity requirement.” Manno, 289 F.R.D. at 684 (quoting
Vega, 564 F.3d at 1267).
Although mere numbers are not dispositive, the Eleventh
Circuit

has

plaintiffs

indicated
is

that

inadequate,

less
and

than
more

twenty-one
than

forty

class
class

plaintiffs is generally enough to satisfy the rule. Cox v.
Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986).
The Court may also consider factors such as “the geographic
diversity of the class members, the nature of the action, the
size of each plaintiff’s claim, judicial economy and the
inconvenience of trying individual lawsuits, and the ability
of

the

individual

class

members

to

institute

individual

lawsuits.” Walco Inv., Inc. v. Thenen, 168 F.R.D. 315, 324
(S.D. Fla. 1996).
According

to

Plaintiffs,

“over

$74,500,000

has

been

collected as separately stated delivery fees and every penny
of that has been taxed at a rate between 6% and 7.55% translating to over $5,000,000 from Floridians in sales taxes
that were never owed and should never have been charged or

7

collected.” (Doc. # 60 at 11, 12). Plaintiffs submit that
“any rational assumption about how many pizza’s people order
a year will produce a class numbering in the tens of thousands
- and more likely the hundreds of thousands of people – having
been affected by the tax policy here at issue.” (Id. at 12).
Upon review, the Court finds that although some of the
potential

class

members

identified

by

Plaintiffs

may

ultimately not meet the class definition, the submission by
Plaintiffs that “numerosity is satisfied here looking only at
a single store’s collection practice since April 2010, or
even

a

single

month

of

deliveries

from

Florida’s

274

restaurants” (Doc. # 60 at 12), is sufficient to meet the
“generally low hurdle” of the numerosity requirement. See
Manno,

289

F.R.D.

at

684;

Vega,

564

F.3d

at

1267.

Furthermore, the Court finds that a potential class size of
thousands or tens of thousands is sufficiently large for the
Court to presume joinder is impracticable. See Cox, 784 F.2d
at 1553.

Therefore, the Court finds that Plaintiffs have met

their burden of demonstrating the numerosity requirement.
2.

Commonality

Federal Rule of Civil Procedure 23(a)(2) requires that
there be “questions of law or fact common to the class.”
R.

Civ.

P.

23(a)(2).

Commonality

8

pertains

to

Fed.
the

characteristics of the group or class as a whole, unlike
typicality which refers to the individual characteristics of
the class representative as compared to those of the class
members. Piazza v. Ebsco Indus. Inc., 273 F.3d 1341, 1346
(11th Cir. 2001) (citing Prado-Steiman v. Bush, 221 F.3d 1266,
1279 (11th Cir. 2000)).
Commonality “does not require complete identity of legal
claims.” Johnson v. Am. Credit Co. of Ga., 581 F.2d 526, 532
(5th Cir. 1978). In fact, commonality can be satisfied even
with some factual variations among class members.

Armstead

v. Pingree, 629 F. Supp. 273, 280 (M.D. Fla. 1986).
In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541
(2001),

the

Supreme

Court

clarified

the

commonality

requirement for class certification by specifically rejecting
the use of generalized questions to establish commonality.
Noting

that

“any

competently

crafted

class

complaint

literally raises common questions,” the Court focused the
required discussion as follows:
What matters to class certification . . . is not
the raising of common questions – even in droves but, rather the capacity of a classwide proceeding
to generate common answers apt to drive the
resolution of the litigation.
Dissimilarities
within the proposed class are what have the
potential to impede the generation of common
answers.

9

Id. at 2551 (internal citation omitted). The Court explained
that the “common contention” underpinning a finding of Rule
23(a)(2) “must be of such a nature that it is capable of class
wide resolution – which means that determination of its truth
or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.” Id.
Plaintiffs argue that the commonality requirement is
satisfied because the proposed class has the following common
issues of law and fact:
(a)

Whether Defendants are permitted to collect
sales tax on separately stated delivery fees
that are avoidable at the option of the
consumer by picking up the food ordered;

(b)

Whether customers were and continue to be
charged sales tax on separately stated
delivery fees that could have been avoided at
the option of the consumer;

(c)

Whether Defendants charging or collecting, or
participating in the charging and collection,
of sales tax on separately stated and
avoidable delivery fees is a deceptive and
unfair practice;

(d)

Whether PJ International requires all stores
to use PROFIT 2;

2

PROFIT is a computer-based point of sale technology, which
integrates with its “proprietary digital ordering platform,”
the papajohns.com website and mobile applications through
which customers may order food for delivery or pickup. (Doc.

10

(e)

Whether PJ International requires all Florida
stores to comply with Florida law regarding
sales tax.

(f)

Whether PJ International was negligent;

(g)

Whether PJ
negligent;

(h)

Whether PJ USA has the ability to obtain a
refund from the Florida Department of Revenue
for
improperly
charged,
collected,
and
remitted sales tax on delivery fees and
whether PJ International may require its
franchisees to do so as well; and

(i)

Whether PROFIT can be configured to exempt
delivery fees from sales tax in Florida during
those periods of time when a restaurant
permits carry out.

International

or

PJ

USA

was

(Doc. # 60 at 13-15). According to Plaintiffs, “[t]he uniform
practice of Defendants requiring Florida restaurants to use
PROFIT in every Papa John’s location, combined with the
methods by which Defendants implemented and maintained the
configuration of the system as it relates to the charging of
sales tax, will resolve common issues of fact and law and
will apply equally to every member of the proposed class.”
(Id. at 13).

# 60 at 4). PROFIT is installed at all Papa John’s restaurants
by PJ USA, at the direction of PJ International. (Id.).

11

Upon review of the record, the Court finds that there
are “questions of law or fact common to the class.”
further

finds

that

the

above

outlined

The Court

questions

are

sufficient to satisfy the commonality requirement. “These
[common questions] are not simply convenient or collateral
common [questions]. Rather, these questions are central to
the case and their centrality and commonality support the
policy objectives behind class certification.” Buford, 168
F.R.D. at 350. Therefore, Plaintiffs have met their burden of
demonstrating the commonality requirement.
3.

Typicality

Class certification also requires that the claims of the
class representatives be typical of those of the class. See
Fed. R. Civ. P. 23(a)(3). In order to establish typicality,
“there must be a nexus between the class representative’s
claims or defenses and the common questions of fact or law
which unite the class.” Kornberg v. Carnival Cruise Lines,
Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). “A sufficient
nexus is established if the claims or defenses of the class
and the class representative arise from the same event or
pattern or practice and are based on the same legal theory.”
Id.

12

When the class representative’s injury is different from
that of the rest of the class, his claim is not typical and
he

cannot

serve

as

the

class

representative.

Murray

v.

Auslander, 244 F.3d 807, 811 (11th Cir. 2001). Moreover, when
proof

of

the

class

representative’s

claim

would

not

necessarily prove the claims of the proposed class members,
the class representative does not satisfy the typicality
requirement. Brooks v. S. Bell Tel. & Tel. Co., 133 F.R.D.
54, 58 (S.D. Fla. 1990). “Typicality, however, does not
require identical claims or defenses.” Kornberg, 741 F.2d at
1337.

“A

factual

variation

will

not

render

a

class

representative’s claim atypical unless the factual position
of the representative markedly differs from that of other
members of the class.” Id.
Plaintiffs argue that their claims are typical “because
each plaintiff placed at least one order with Papa John’s and
selected to have the order delivered when he had the option
to pick the pizza up if he so chose.” (Doc. # 60 at 15). The
claims and relief sought by Plaintiffs are identical to the
proposed class because they: “(1) should not have been charged
sales tax on the delivery fee; (2) seek declaratory and
injunctive relief to stop Defendants’ unlawful practice; and

13

(3) seek compensation to recover the sales tax wrongfully
charged to and collected from them.” (Id. at 16).
Papa John’s contends that “the named Plaintiffs have not
established – and several of them cannot establish – that
they meet the requirements of Rule 23(a).” (Doc. # 68 at 8).
Papa John’s asserts that the named Plaintiffs all admitted
(a) each and every time they ordered from Papa John’s they
understood the amount that was due for food, (b) each and
every time they ordered from Papa John’s they understood the
amount of sales tax that was due, and (c) each and every time
they ordered from Papa John’s they voluntarily chose to pay
the amounts on the receipt. (Id. at 10). Although Papa John’s
argues that the named Plaintiffs’ admissions of voluntary
payment

render

them

atypical

of

the

proposed

class

and

unsuitable to serve as class representatives, this Court
disagrees. (Id.).
This Court acknowledges Papa John’s contention that the
typicality element is not met because Plaintiffs may be
subject to unique defenses and individualized issues based on
their individual relationship with Papa John’s that differs
from that of members of the potential class. However, this
Court finds that those concerns are better addressed under
the predominance requirement of Fed. R. Civ. P. 23(b)(3).

14

Therefore, for purposes of the present analysis, the Court
will presume the typicality requirement is satisfied.
4.

Adequate Representation by Class Representatives

The final requirement for class certification under Rule
23(a)

is

23(a)(4).

adequate
This

representation.

prerequisite

representatives

have

representative

class

representatives
prosecute

the

and

that

of

the

R.

that

interests

members

interests

Fed.

requires

common

demonstrate

See

the

with

class

P.

class

the

will

non-

that

requires
they

Civ.

the

vigorously

through

qualified

counsel. Piazza, 273 F.3d at 1346. Thus, the adequacy of
representation analysis involves two inquiries: “(1) whether
any

substantial

representatives

conflicts

of

and

class,

the

interest
and

exist
(2)

between
whether

the
the

representatives will adequately prosecute the action.” Valley
Drug Co., 350 F.3d at 1189 (quoting In re HealthSouth Corp.
Sec. Litig., 213 F.R.D. 447, 460–61 (N.D. Ala. 2003)). “The
existence of minor conflicts alone will not defeat a party’s
claim to class certification.” Id. Rather, “the conflict must
be

a

fundamental

one

going

to

the

specific

issues

that

Plaintiffs

in

controversy.” Id.
Here,

Papa

John’s

contends

are

not

adequate class representatives, but Papa John’s does not

15

indicate that any true conflicts of interest exist between
Plaintiffs and the class. In addition, Papa John’s does not
contest the qualifications of Plaintiffs’ counsel and there
is

no

indication

prosecute
Plaintiffs

this
have

that

action.
met

Plaintiffs
Therefore,

their

burden

will
this
of

not

Court

adequately
finds

demonstrating

that
the

adequacy of representation requirement.
B.

Rule 23(b) Requirements

In addition to satisfying the prerequisites of Rule
23(a), parties seeking class certification must satisfy at
least one of the alternative requirements of Rule 23(b):
(b) Types of Class Actions. A class action may be
maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against
individual class members would create a risk of:
(A) inconsistent or varying adjudications with
respect to individual class members that would
establish incompatible standards of conduct
for the party opposing the class; or
(B) adjudications with respect to individual
class members that, as a practical matter,
would be dispositive of the interests of the
other members not parties to the individual
adjudications or would substantially impair or
impede
their
ability
to
protect
their
interests;
(2) the party opposing the class has acted or
refused to act on grounds that apply generally to
the class, so that final injunctive relief or

16

corresponding declaratory relief is
respecting the class as a whole; or

appropriate

(3) the court finds that the questions of law or
fact common to class members predominate over any
questions affecting only individual members, and
that a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy. The matters pertinent to these
findings include:
(A)
the
class
members'
interests
in
individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation
concerning the controversy already begun by or
against class members;
(C) the desirability or undesirability of
concentrating the litigation of the claims in
the particular forum; and
(D) the likely difficulties in managing a
class action.
Fed. R. Civ. P. 23(b).
In their Motion for Class Certification, Plaintiffs seek
certification under Fed. R. Civ. P. 23(b)(1),(2), and (3).
(Doc. # 60 at 16). As Fed. R. Civ. P. 23(b)(3) is the
predominant issue and point of contention between the parties
in this case and because the Court finds that Plaintiffs
satisfy this requirement, the Court will only address that
particular section.
Rule

23(b)(3)

includes

two

requirements:

(1)

that

questions of law or fact common to the members of the class

17

predominate

over

any

questions

affecting

only

individual

members (predominance) and (2) that a class action is superior
to

other

available

methods

for

fair

and

efficient

adjudication of the controversy (superiority). Vega v. TMobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir. 2009).
1.

Predominance

Under Rule 23(b)(3), “[i]t is not necessary that all
questions of fact or law be common, but only that some
questions

are

common

and

that

they

predominate

over

individual questions.” Klay v. Humana, Inc., 382 F.3d 1241,
1254 (11th Cir. 2004). “Whether an issue predominates can
only

be

determined

after

considering

what

value

the

resolution of the class-wide issue will have in each class
member’s underlying cause of action.

Common issues of fact

predominate if they have direct impact on every class member’s
effort to establish liability and on every class member’s
entitlement
omitted).

to

relief.”

Id.

at

1255

(internal

citations

As stated in Kerr v. City of West Palm Beach, 875

F.2d 1546, 1558 (11th Cir. 1989), “[T]he issues in the class
action

that

are

subject

to

generalized

proof,

and

thus

applicable to the class as a whole, must predominate over
those issues that are subject only to individualized proof.”
(internal citations omitted).

18

“The predominance inquiry requires an examination of
‘the

claims,

substantive

defenses,

law,’

resolution

of

individual

class

.

the

.

relevant
.

to

classwide

member’s

facts,

assess
issues

claim

the

and
degree

will

against

applicable
to

which

further

the

each

defendant.”

Babineau v. Fed. Express Corp., 576 F.3d 1183, 1191 (11th
Cir. 2009)(quoting Klay, 382 F.3d at 1254).
In their Motion, Plaintiffs claim that the predominant
dispute in this action is whether either or both Defendants
breached a duty of reasonable care and were negligent:
(a) in charging sales tax on delivery fees, (b)
researching the issue and thereafter communicating
their conclusions to others, (c) supervising the
installation and configuration of PROFIT, (d)
configuring PROFIT to tax delivery fees as a
default, (e) permitting computer systems to be
cloned from one store to the next and thereby making
erroneous tax decisions viral, (f) permitting
franchisees to violate the law by charging sales
tax on delivery fees, (g) failing to warn or
communicate to franchisee and store managers the
illegality of taxing delivery fees, (h) failing to
properly train or supervise those installing
PROFIT, and (i) failing to tell consumers that the
represented sales tax figure for food delivery
includes a sales tax on the delivery fee or to
create an invoice via PROFIT that did so.
(Doc. # 60 at 19-20). Plaintiffs contend that the above
allegations are all common questions that apply to the entire
class and do not require individual proof from each class
member. (Id. at 20). Furthermore, “Plaintiffs’ common legal

19

grievance – that Defendants unlawfully charged sales tax on
delivery fees in violation of Florida law is the primary fact
giving rise to Plaintiffs’ negligence claims and a ruling on
the above negligence issues will apply to all class members
and will be determinative as to whether a claim exists at all
for the class.” (Id.).
At issue is Plaintiffs’ claim that “Defendants have
negligently misrepresented to customers that sales tax was
lawfully due on delivery fees when the customer had the option
to avoid the fee by picking up the pizza.” (Id.). It is
Plaintiffs’ position that “for purposes of certifying a class
arising out of this misrepresentation, reliance is proven for
the class by simply showing that class members paid money
based on Defendants’ disclosure that a charge is due for a
particular purpose when, in fact, the money is not due for
that

purpose.”

(Id.);

Turner

Greenberg

Assocs.,

Inc.

v.

Pathman, 885 So. 2d 1004, 1006-07 (Fla. 4th DCA 2004).
According to Papa John’s, “to find predominance, a Court
must consider the elements of each cause of action, and
determine whether those elements can be satisfied by common,
class-wide proof.” (Doc. # 68 at 13)(quoting In re Currency
Conversion
(S.D.N.Y

Fee

Antitrust

2004)).

To

that

Litig.,
end,

20

230

F.R.D.

303,

309-10

Papa

John’s

states

that

“consideration of the elements of Plaintiffs’ negligence and
FDUPTA claims makes clear that individual issues predominate
over the common issues between the members of the class.”
(Id. at 13). As to the negligence claims, Papa John’s contends
that “[b]ecause Plaintiffs must proceed under a theory of
negligent misrepresentation, they must establish that each
and

every

member

of

the

class

relied

on

the

alleged

misrepresentation regarding taxation of delivery fees” and
that

alone

Moreover,

precludes
Papa

class

John’s

certification.

asserts

that

(Id.

at

Plaintiffs

14).

cannot

establish causation where Plaintiffs continued to purchase
the

product

even

misrepresentation.

after
(Id.

learning

at

15).

“A

about

the

plaintiff’s

alleged
continued

purchase with knowledge of the truth establishes that even
without the alleged deception, the plaintiff would still have
purchased the product in any event.” (Id.).
It

is

Papa

John’s

contention

that

numerous

individualized inquiries will be required to determine the
extent to which Papa John’s action “caused” the tax and
therefore,
payment,
assumption

Papa

John’s

exhaustion
of

individualized

risk

affirmative
of
and

questions

defenses

administrative
comparative
which

21

weighs

of

voluntary

remedies,
fault
against

and

present
class

certification. (Id. at 16, 18). Although this Court notes
Papa John’s concerns, it finds those concerns to be misplaced
at this juncture of the case.
At this preliminary stage, the Court may not pass on the
merits

of

Plaintiffs'

claims.

Fisher

v.

Ciba

Specialty

Chemicals Corp., 238 F.R.D. 273, 296 (S.D. Ala. 2006); See,
e.g., Cooper v. Southern Co., 390 F.3d 695, 712 (11th Cir.
2004)(repeating well-worn admonition that Rule 23 does not
authorize court to conduct preliminary merits inquiry in
making class certification determination); Morrison v. Booth,
763 F.2d 1366, 1371 (11th Cir. 1985) (concurring with district
court's assessment that it “could not conduct a preliminary
inquiry into the merits of a suit in order to determine
whether it may be maintained as a class action”).
Here, the Court finds that predominance is satisfied in
this case. Plaintiffs allege that Papa John’s course of
conduct commonly, and adversely, affected the entire class.
The class members are similarly situated with regard to the
readily determined, allegedly excess fees they incurred as a
result of a standardized process. The class is unified by
both common questions and a common interest. The evidence
necessary to establish Plaintiffs’ claims is common to both
Plaintiffs and all class members; they all seek to prove that

22

Papa John’s delivery tax practice was wrongful. The evidence
to be presented by the Plaintiffs has a direct impact on every
class member’s effort to establish liability and on every
class

member’s

corporate

entitlement

policies

to

“constitute

relief.
the

Moreover,

very

heart

where
of

the

plaintiffs' . . . claims,” as they do here, common issues
will predominate because those policies “would necessarily
have to be re-proven by every plaintiff.” In re Checking
Account Overdraft Litig., 286 F.R.D. 645, 656 (S.D. Fla.
2012); Klay, 382 F.3d at 1257; see also Allapattah Servs.,
Inc. v. Exxon Corp., 333 F.3d 1248, 1261 (11th Cir. 2003),
aff'd,

545

Multidistrict

U.S.

546

Litig.,

(2005);
236

In

F.R.D.

re
62,

Tyco
70

Int'l,
(D.N.H.

Ltd.
2006)

(varying degrees of knowledge among class members do not
present an obstacle to class certification where other common
issues unite the class).
Affirmative

defenses

do

not

automatically

preclude

certification of a class. To the extent that Papa John’s
argues that affirmative defenses make it such that individual
questions

would

predominate

over

common

questions,

the

information provided does not sway this Court. (See Id.).
Unique affirmative defenses rarely predominate where a common
course of conduct is established. Wahl v. Midland Credit

23

Mgmt., 243 F.R.D. 291, 297–298 (N.D. Ill. 2007). Contrary to
Papa John’s arguments, there are no unique defenses asserted
against the Plaintiffs “which threaten to become the focus of
this litigation.” Demmick v. Cellco P'ship, No. 06–2163(JLL),
2010 WL 3636216, *7 (D.N.J. Sept. 8, 2010) (citing Gary
Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)). The defenses
asserted here against Plaintiffs are related to the class
claims and are typical of those that Papa John’s will assert
against

the

class.

Therefore,

this

Court

finds

class

certification to be appropriate at this time.
2.

Superiority

The superiority requirement of Rule 23(b)(3) focuses
“not on the convenience or burden of a class action suit per
se, but on the relative advantages of a class action suit
over

whatever

other

forms

of

litigation

might

be

realistically available to the plaintiffs.” Klay, 382 F.3d at
1269. “It is only when [management] difficulties make a class
action less fair and efficient than some other method, such
as individual interventions or consolidation of individual
lawsuits, that a class action is improper.” Carnegie v. Mut.
Sav. Life Ins. Co., No. 99-cv-3292, 2002 U.S. Dist. LEXIS
21396, at *76-77 (N.D. Ala. Nov. 1, 2002).

24

The Court has examined the factors enumerated in Rule
23(b)(3)(A)-(D), such as “the class members’ interest in
individually controlling the prosecution . . . of separate
actions,”

“the

desirability

or

undesirability

of

concentrating the litigation of the claims in the particular
forum,” and manageability issues.

After so doing, the Court

determines that class wide resolution of the dispute is
superior to other methods of adjudication. This is especially
so because the Court has already determined that Plaintiffs
satisfied

the

predominance

prong

of

Rule

23(b)(3):

“the

predominance analysis . . . has a tremendous impact on the
superiority analysis . . . for the simple reason that, the
more common issues predominate over individual issues, the
more desirable a class action lawsuit will be as a vehicle
for adjudicating the plaintiffs’ claims.” Klay, 382 F.3d at
1269. Furthermore, “the probability that individual members
would not have a great interest in controlling the prosecution
of these claims, all indicate that a class action would be
the superior method of adjudicating the [] claim.” Hicks v.
Client Servs., Inc., No. 07-61822, 2008 U.S. Dist. LEXIS
101129, at *26 (S.D. Fla. Dec. 11, 2008).
IV.

Conclusion

25

Plaintiffs have satisfied the requirements of Fed. R.
Civ. P. 23(a), and this Court finds that Plaintiffs have also
satisfied the requirements of Rule 23(b)(3). As a result,
this Court grants Plaintiffs’ Motion for Class Certification.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiffs’ Motion for Class Certification (Doc. #
60) is GRANTED.

(2)

Plaintiffs’

Motion

for

Oral

Argument

or,

in

the

Alternative, Motion for Leave to File a Reply to
Defendants’ Response in Opposition to Motion for Class
Certification (Doc. # 72) is DENIED.
(3)

Papa

John’s

International

and

Papa

John’s

USA’s

Unopposed Motion for Leave to File a Supplemental
Brief in Opposition to Class Certification (Doc. #
75) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
16th day of December, 2014.

Copies: All Counsel of Record

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