Nelson v. Conduent Business Services, LLC et al
Filing
73
OPINION and ORDER denying Plaintiff's 47 Motion for Class Certification and granting Defendants' 53 Motion for Leave to File Matters Under Seal. Within 14 days after the entry of this Order, the parties are DIRECTED to file a joint, modified scheduling order proposing future deadlines in this case. Signed by Judge Steven D. Grimberg on 09/18/2020. (rvb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RICKY NELSON, on behalf of himself and all
others similarly situated,
Plaintiff,
v.
CONDUENT BUSINESS SERVICES LLC
d/b/a EPPICARD COMERICA, INC. and
COMERICA BANK,
Civil Action No.
1:18-cv-00669-SDG
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff Ricky Nelson’s motion for class
certification [ECF 47]. Following a careful review of the record, and with the
benefit of oral argument, Nelson’s motion for class certification is DENIED.
Additionally, Defendants’ motion for leave to file matters under seal [ECF 53] is
GRANTED.1
1
In this Order, the Court refers to some information that the parties filed under
seal. The Court does not find that the cited information needs to be sealed,
notwithstanding the parties’ confidentiality designations.
I.
BACKGROUND2
Nelson is an occasional recipient of unemployment benefits from the
Georgia Department of Labor (DOL).3 Rather than sending recipients of
unemployment benefits physical checks, the DOL distributes funds through the
“EPPICard” program, a public-private partnership between Defendants
Conduent Business Services LLC d/b/a Eppicard Comerica, Inc. (Conduent),
Comerica Bank (Comerica), and the State of Georgia.4 Unemployment benefits are
credited to a Comerica-issued debit card for the recipient’s personal use, which
Conduent services.5 In addition to Georgia, many states across the country have
switched to this debit card program to distribute public benefits.6
When a debit card is issued to a recipient, it is accompanied by a standard
form “Terms of Use” agreement that outlines the terms and conditions governing
2
Unless otherwise indicated, the background facts summarized herein are
drawn from the well-pleaded allegations in the Complaint. The Court will
address the merits underlying Nelson’s allegations to the “extent . . . they are
relevant to determining whether the Rule 23 prerequisites for class certification
are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466
(2013).
3
ECF 1, ¶ 1.
4
Id. ¶¶ 14–15.
5
Id. ¶ 18.
6
Id. ¶ 17.
its use.7 The Terms of Use contains procedures detailing the process a cardholder
must follow if he or she believes the debit card has been lost, stolen, or
compromised through unauthorized or fraudulent charges.8 For example, the
Georgia version of the Terms of Use informs cardholders of the following
regarding liability from unauthorized or fraudulent charges:
Tell us AT ONCE if you believe your Card or PIN has
been lost or stolen. . . . If you tell us within two business
days, you can lose no more than $50 if someone used
your Card or PIN without your permission. If you do
NOT tell us within two business days after you learn of
the loss or theft of your Card or PIN, and we can prove
that we could have stopped someone from using your
Card or PIN without your permission if you had told us,
you could lose as much as $500. . . . Also, if the written
transaction history or other Card transaction information
provided to you shows transfers that you did not make,
tell us at once. If you do not tell us within 60 days after
the transmittal of such information, you may not get back
any money you lost after the 60 days if we can prove that
we could have stopped someone from taking the money
if you had told us in time.9
7
Id. ¶ 19.
8
Id. ¶ 22.
9
Id. ¶ 25.
Despite having received unemployment benefits, Nelson alleges he has not used
his EPPICard.10 Nelson instead elected to lock his card in his personal safe to allow
the benefits to accumulate.11
On July 26, 2017, Nelson discovered $12,506.63 in unauthorized transactions
in his EPPICard account.12 Nelson disputed these charges, all of which occurred
between February 18, 2017 and June 5, 2017.13 Conduent’s Fraud Services
Department subsequently investigated Nelson’s account for fraudulent activity.14
On September 8, 2017, the Fraud Services Department sent Nelson a letter
informing him that they had completed their investigation and could not confirm
that fraudulent activity had occurred in his account.15 On September 24, 2017,
Nelson sent a letter requesting a secondary review of the allegedly fraudulent
activity.16 On December 11, 2017, the Fraud Services Department sent Nelson a
letter indicating that they had reopened the investigation, still could not confirm
10
Id. ¶ 30.
11
Id.
12
Id. ¶¶ 33–35.
13
Id. ¶¶ 33–35, 42.
14
Id. ¶¶ 37–38; ECF 47-20.
15
ECF 1, ¶ 50; ECF 47-23.
16
ECF 1, ¶¶ 56–57; ECF 47-24.
that fraudulent activity occurred, and again denied Nelson’s claim for a refund of
the unauthorized charges.17
Nelson filed his putative class action Complaint on February 14, 2018,
invoking the Court’s jurisdiction under the Class Action Fairness Act (CAFA),
28 U.S.C. § 1332(d).18 Nelson asserts claims for breach of contract/covenant of
good faith and fair dealing (Count I); conversion (Count II); unjust enrichment
(Count III); and declaratory relief (Count IV).19 Nelson also seeks to represent the
following putative class:
All Conduent and Comerica EPPICard®, Way2Go
Card®, and GO Program® customers in the United
States who, within the applicable statute of limitations
preceding the filing of this action to the date of class
certification, reported fraudulent charges on their
accounts and were denied a refund of such charges in
violation of Defendants’ Terms of Use (the “Class”).20
17
ECF 1, ¶ 58; ECF 47-25.
18
ECF 1.
19
Id.
20
ECF 67. In the Complaint, Nelson defined the proposed class as all customers
who incurred fraudulent charges on their accounts and were denied refunds
[ECF 1, ¶ 78]. Nelson’s proposed amendment, which Nelson requested and the
Court granted during oral argument on the instant motion, substitutes the
terms “incurred” for “reported.” [ECF 67.] See Prado’Steiman ex rel. Prado v.
Bush, 221 F.3d 1266, 1273 (11th Cir. 2000) (“Rule 23(c)(1) specifically empowers
district courts to alter or amend class certification orders at any time prior to a
decision on the merits.”).
In support of his class allegations, Nelson asserts that Defendants violated their
obligations in the Terms of Use agreement issued to each putative class member.21
Nelson alleges that Defendants engaged in a pattern of “sham investigations” of
fraudulent charges and refused to refund unauthorized or fraudulent charges to
recipients.22
On July 13, 2018, the Court granted in part and denied in part Defendants’
motion to dismiss.23 The Court dismissed Nelson’s claims for conversion, unjust
enrichment, and declaratory judgment, but permitted the remainder of Nelson’s
claims—including his putative class claims—to proceed.24 On November 26, 2019,
Nelson filed the instant motion for class certification pursuant to Federal Rule of
Civil Procedure 23(b)(3).25 Defendants filed their response in opposition to class
certification on January 16, 2020.26 Nelson filed his reply on February 13, 2020.27
The Court held oral argument on Nelson’s motion on July 23, 2020.
21
ECF 1, ¶ 26.
22
Id. ¶ 27.
23
ECF 16.
24
Id.
25
ECF 47.
26
ECF 51.
27
ECF 56.
II.
LEGAL STANDARD
A party seeking class certification must satisfy Federal Rule of Civil
Procedure 23. Compliance with Rule 23 demands a higher measure of proof than
the general federal pleading standard. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
350 (2011). To certify a class, the party must “affirmatively demonstrate [its]
compliance with the Rule.” Id. See also Brown v. Electrolux Home Prod., Inc., 817 F.3d
1225, 1234 (11th Cir. 2016) (“The party seeking class certification has a burden of
proof, not a burden of pleading. [It] must affirmatively demonstrate [its]
compliance with Rule 23 by proving that the requirements are in fact satisfied.”)
(citing Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 275 (2014);
Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (emphasis in original) (punctuation
omitted). Rule 23(a) contains four explicit prerequisites to certify a class:
One or more members of a class may sue or be sued as
representative parties on behalf of all members 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.
These elements are colloquially known as the “prerequisites of numerosity,
commonality, typicality, and adequacy of representation, and [ ] are designed to
limit class claims to those fairly encompassed by the named plaintiffs’ individual
claims.” Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir. 2001)
(citing Gen Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)). The failure to establish
any one of these four factors precludes certification. In re Atlas Roofing Corp. Chalet
Shingle Prod. Liab. Litig., 321 F.R.D. 430, 437 (N.D. Ga. 2017).
Although not explicit in Rule 23(a), it is well established that, “[b]efore a
district court may grant a motion for class certification, a plaintiff seeking to
represent a proposed class must show that the proposed class is adequately
defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304
(11th Cir. 2012) (citing John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir.
2007) (“The existence of an ascertainable class of persons to be represented by the
proposed class representative is an implied prerequisite of Federal Rule of Civil
Procedure 23.”)).
This
prerequisite—commonly
referred
to
as
the
“ascertainability” element—is considered an “implicit requirement” of Rule 23(a).
Grimes v. Rave Motion Pictures Birmingham, L.L.C., 264 F.R.D. 659, 663 (N.D. Ala.
2010) (“[C]ourts have universally recognized that the first essential ingredient to
class treatment is the ascertainability of the class.”).
Once the party seeking certification demonstrates compliance with Rule
23(a), he must satisfy one of the three requirements found in Rule 23(b). Nelson
seeks certification of a consumer class action pursuant to Rule 23(b)(3), which
states:
A class action may be maintained if Rule 23(a) is satisfied
and if . . . 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.
See also Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir. 2009)
(“Rule 23(b)(3) . . . additionally requires findings: (1) that common questions of
law or fact predominate over questions affecting only individual class members
(‘predominance’); and (2) that a class action is superior to other available methods
for adjudicating the controversy (‘superiority’).”).
While the Court must remain mindful that the “class action is an exception
to the usual rule that litigation is conducted by and on behalf of the individual
named parties only,” Dukes, 564 U.S. at 348, it retains “broad discretion in
determining whether to certify a class.” Washington v. Brown & Williamson Tobacco
Corp., 959 F.2d 1566, 1569 (11th Cir. 1992) (citing Coon v. Ga. Pacific Co., 829 F.2d
1563, 1566 (11th Cir. 1987)). This interplay requires the Court to “conduct a
rigorous analysis of the [R]ule 23 prerequisites before certifying a class.”
Vega, 564 F.3d at 1266 (citing Martinez–Mendoza v. Champion Int’l Corp., 340 F.3d
1200, 1216 n.37 (11th Cir. 2003); Castano v. Am. Tobacco Co., 84 F.3d 734, 740
(5th Cir. 1996)). The Court must “probe behind the pleadings before coming to rest
on the certification question,” as the “rigorous analysis” frequently entails some
overlap with the merits of the underlying claim. Dukes, 564 U.S. at 350
(citing Falcon, 457 U.S. at 160). To the extent that a “question of fact or law is
relevant to [whether the Rule 23 prerequisites are satisfied], then the district court
has a duty to actually decide it and not accept it as true or construe it in anyone’s
favor.” Brown, 817 F.3d at 1234.
III.
DISCUSSION
Defendants initially opposed class certification as to the ascertainability,
commonality, and predominance elements of Rule 23. During oral argument,
Defendants conceded that Nelson’s amendment to the class definition—replacing
“incurred” with “reported”—satisfied their ascertainability objection. As such, the
Court will address the commonality and predominance elements.
A. Nelson Has Satisfied Rule 23(a)(2): the Commonality Element.
The commonality element requires Nelson to establish that “there are
questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The common
question invoked “must be of such a nature that it is capable of classwide
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.”
Dukes, 564 U.S. at 350. The crux of this element is not “the raising of common
questions—even in droves—but rather, the capacity of a class-wide proceeding to
generate common answers apt to drive the resolution of the litigation.” Id.
Substantial “[d]issimilarities within the proposed class” may be fatal to
certification. Id. At bottom, despite the more exacting standard articulated by the
Supreme Court in Dukes, Rule 23(a)(2) does not “require that all the questions of
law and fact raised by the dispute be common, or that the common questions of
law or fact predominate over individual issues.” Vega, 564 F.3d at 1268 (internal
citations and punctuations omitted). Instead, “even a single common question will
do.” Dukes, 564 U.S. at 359.
Nelson identifies two question common to the proposed class: (1) whether
Defendants breached the Terms of Use by failing to limit the putative class
members’ losses from reported unauthorized charges; and (2) whether Defendants
are otherwise not liable based on discretionary language found in other portions
of the Terms of Use.28 Defendants argue Nelson’s raising of these two questions—
28
ECF 47-1, at 17 (SEALED).
even if common to the proposed class—is insufficient under Rule 23(a)(2), as the
questions do not generate common answers and will require extensive
individualized determinations.
The Court does not agree. Nelson’s common questions probe whether
Defendants have engaged in a pattern of conduct after a report of fraud that has
affected the class members in the same manner; i.e., whether Defendants have
breached the Terms of Use contract. This hallmark is generally sufficient to satisfy
Rule 23(a)(2). E.g., In re Terazosin Hydrochloride, 220 F.R.D. 672, 685 (S.D. Fla. 2004)
(“Where the complaint alleges that the Defendants have engaged in a
standardized course of conduct that affects all class members, the commonality
requirement will generally be met.”).
Moreover, Nelson’s common questions arise out of the performance of a
form contract common to each member of the proposed class. Such allegations are
routinely found sufficient to establish the less rigorous commonality element.
Kleiner v. First Nat. Bank of Atl., 97 F.R.D. 683, 692 (N.D. Ga. 1983) (“When viewed
in light of Rule 23, claims arising from interpretations of a form contract appear to
present the classic case for treatment as a class action, and breach of contract cases
are routinely certified as such.”) (collecting cases). See also Rivell v. Private Health
Care Sys., Inc., No. CV 106-176, 2009 WL 10318921, at *5 (S.D. Ga. Aug. 24, 2009)
(“PHCS used a number of standardized form contracts with nearly identical terms.
This Court will need only to interpret these contracts to determine whether the
contracts authorized PHCS to sell network access to Capella and permitted
Capella to use Plaintiffs’ identities and information. Because the same contracts
were used for each class member, the Court finds that the commonality
requirement has been met.”).
Defendants emphasize that individual questions permeate the class claims,
including how Defendants investigated each report of fraud to determine their
veracity and the reasons why Defendants ultimately denied each consumer’s
claim. The Court agrees these individual issues exist, but finds they are not fatal
to the commonality question. The level of proof required for Rule 23(a)(2) is less
exacting; the “existence of individual questions concerning class members does
not necessarily defeat the commonality requirement.” Kleiner, 97 F.R.D. at 692. To
satisfy Rule 23(a)(2), common questions need not “be unanimous.” Id. And since
Nelson has raised questions common to the class based on the alleged breach of a
standard form contract, these questions may well elicit common answers, thereby
resolving the issues with one stroke. The Court finds that Nelson has established
the commonality element.
B. Nelson Has Not Satisfied Rule 23(b)(3): the Predominance Element.
Nelson brings this consumer class action under Rule 23(b)(3). The Supreme
Court has described Rule 23(b)(3) as an “adventuresome innovation . . . designed
for situations in which class-action treatment is not as clearly called for.” Behrend,
569 U.S. at 34. To certify a consumer class action under Rule 23(b)(3), Nelson bears
the burden of establishing: (1) “that the questions of law or fact common to class
members predominate over any questions affecting only individual members, and
(2) that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Vega, 564 F.3d at 1277.
The “central and overriding prerequisite of a Rule 23(b)(3) class” is the
predominance of common questions over individual questions. Id. at 1278.
Predominance is “far more demanding than the commonality requirement found
in Rule 23(a)(2), and tests whether proposed classes are sufficiently cohesive to
warrant adjudication by representation.” Carriuolo v. Gen. Motors Co., 823 F.3d 977,
985 (11th Cir. 2016) (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623–24
(1997)). The party seeking certification must show that “the issues in the class
action that are subject to generalized proof and thus applicable to the class as a
whole, [ ] predominate over those issues that are subject only to individualized
proof.” Babineau v. Fed. Exp. Corp., 576 F.3d 1183, 1191 (11th Cir. 2009) (citing Kerr
v. City of W. Palm Beach, 875 F.2d 1546, 1558 (11th Cir. 1989)). “Common issues of
fact and law predominate if they have a direct impact on every class member’s
effort to establish liability . . . and monetary relief.” Babineau, 875 F.2d at 1558
(punctuation omitted).
Predominance, however, “does not require that every issue in the case be
susceptible of common proof.” In re Delta/AirTran Baggage Fee Antitrust Litig., 317
F.R.D. 675, 682 (N.D. Ga. 2016). See also Brown, 817 F.3d at 1235 (“[P]redominance
requires a qualitative assessment too; it is not bean counting, and the relative
importance of the common versus individual questions also matters.”)
(citing Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013)). So long as
“one or more of the central issues in the action are common to the class and can be
said to predominate,” then a class action may be certified, “even though other
important matters will have to be tried separately, such as damages or some
affirmative defenses peculiar to some individual class members.” Tyson Foods, Inc.
v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016). Such identified “common issues will not
predominate over individual questions if, as a practical matter, the resolution of
an overarching common issue breaks down into an unmanageable variety of
individual legal and factual issues.” Babineau, 576 F.3d at 1191 (punctuation
omitted).
Nelson’s proposed class definition asserts breach of contract claims—
potentially numbering in the hundreds-of-thousands—against Defendants based
on their compliance with the Terms of Use agreement. Per the agreement,
Michigan law governs each claim.29 Under Michigan law, the elements of a breach
of contract claim are “(1) the existence of a contract between the parties, (2) the
terms of the contract require performance of certain actions, (3) a party breached
the contract, and (4) the breach caused the other party injury.” Burton v. William
Beaumont Hosp., 373 F. Supp. 2d 707, 718 (E.D. Mich. 2005) (citing Webster v. Edward
D. Jones & Co., L.P., 197 F.3d 815, 819 (6th Cir. 1999)).
Here, the Court finds that individual issues regarding the ‘breach’ element
predominate over common questions for three separate reasons. First, Nelson
seeks to represent a putative class of cardholders who “reported fraudulent
charges on their accounts and were denied a refund of such charges in violation of
Defendants’ Terms of Use.”30 The breadth of this proposed class definition
includes customers who reported a transaction that was not, in fact, fraudulent or
unauthorized. Put another way, some putative class members may have no
legitimate claim for a refund. Courts routinely decline to certify such overbroadly
29
30
ECF 47-6, ¶ 20 (SEALED).
ECF 67.
defined classes. E.g., Walewski v. Zenimax Media, Inc., 502 F. App’x 857, 861
(11th Cir. 2012) (affirming denial of class certification because “it impermissibly
includes members who have no cause of action as a matter of law”); Peterson v.
Aaron’s, Inc., No. 1:14-cv-1919-TWT, 2017 WL 364094, at *3 (N.D. Ga. Jan. 25, 2017)
(finding “fatal flaws” in plaintiffs’ class definition because “[t]he proposed class
includes numerous household members and employees who have not been
injured and thus have no cause of action”). Indeed, each and every putative class
member would be required to present extensive individualized evidence just to
show he or she has a claim at the starting gate. Such inquiries are not susceptible
to class-wide proof.
Second, despite their similarities, the Terms of Use for each state are not
identical. For example, four of the states—including Georgia—have language in
the Terms of Use that states: “If you tell us within two business days, you can lose
no more than $50 if someone used your Card or PIN without your permission.”31
The Terms of Use issued in the remaining 13 states contains an additional
provision shifting the burden to the customer to affirmatively prove usage without
the customer’s permission:
31
E.g., ECF 47-6, ¶ 11 (SEALED).
You are responsible for all authorized uses of your Card
except as set forth below; you will not be responsible for
an unauthorized use of your Card. An “unauthorized”
use is a withdrawal or transaction that you or someone
you authorized did not transact. We may refuse to
reimburse you for a transaction you assert is
unauthorized if: (1) you give your Credit Card number,
and/or PIN, to another person who you expressly or
implicitly authorize to use your Card, even if that person
withdraws or purchases more than you authorized.32
This provision makes the secrecy of the card number and PIN—as well as express
or implied authorization—necessary elements of each customer’s cause of action.
But Nelson’s class definition assumes the putative class members have already
satisfied their burden on this element. This makes the proposed class
inappropriate for certification, because in reality each putative class member will
need to submit individualized evidence demonstrating that neither express nor
implied authorization was granted for the charges at issue. See Hurt v. Shelby Cnty.
Bd. of Educ., No. 2:13-cv-230-VEH, 2014 WL 4269113, at *8 (N.D. Ala. Aug. 21, 2014)
(declining to certify “fail-safe class” because “the class definition is essentially
circular. It defines its members on the presumption that such members have viable
claims against the defendant. So, the class definition assumes what it ostensibly
seeks to prove.”).
32
ECF 47-10, ¶ 10 (SEALED).
Finally, even in the minority of states that do not make the secrecy of the
card number and PIN a necessary element of the cause of action, Defendants may
nevertheless employ this as an affirmative defense to those individualized claims.
As a general rule, “individual affirmative defenses [ ] do not defeat
predominance,” but “affirmative defenses are still relevant to the question of
predominance.” Brown, 817 F.3d at 1240. In Brown, the Eleventh Circuit noted that
individual affirmative defenses may defeat predominance if they (1) “could apply
to the vast majority of class members and raise complex, individual questions,” or
(2) “could be coupled with several other individual questions.” Id. (citing Sacred
Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1177–
83 (11th Cir. 2010); Barnes v. Am. Tobacco Co., 161 F.3d 127, 147 n.25 (3d Cir. 1998)).
The potential affirmative defenses here will involve the submission of
significant individualized evidence by Defendants regarding the merits of the
putative class members’ claims in those states. And to ostensibly assume
Defendants’ liability by preventing them from litigating these affirmative defenses
would be to violate the Rules Enabling Act. 28 U.S.C. § 2072(b). See Dukes, 564 U.S.
at 367 (“Because the Rules Enabling Act forbids interpreting Rule 23 to ‘abridge,
enlarge or modify any substantive right,’ a class cannot be certified on the premise
that Wal–Mart will not be entitled to litigate its statutory defenses to individual
claims.”); Sacred Heart, 601 F.3d at 1176 (“The Rules Enabling Act . . . prevents the
use of class actions from abridging the substantive rights of any party.”).
In sum, the putative class claims will inevitably contain some factual
overlap. But this is not enough to certify this particular proposed class. See Farmer
v. Phillips Agency, Inc., 285 F.R.D. 688, 702 (N.D. Ga. 2012). The Court’s review must
involve a “pragmatic assessment of the entire action and all the issues involved.”
Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1274 (11th Cir. 2019). Contrary to
Nelson’s characterizations, this includes probing the underlying merits of the
individual claims. Dukes, 564 U.S. at 350 (citing Falcon, 457 U.S. at 160); Brown,
817 F.3d at 1234. At the core of these class claims is not a question of how
Defendants interpreted the Terms of Use; rather, it is that Defendants’ course of
conduct in each individual circumstance of reported fraud breached the material
terms of the agreement. Put another way, while the end result of all the claims in
the class may be the same—i.e., the putative class member did not receive a
refund—not all putative class members will have been denied a refund for the
same reason. Each class member’s claim will require individualized proof that
makes it unmanageable for treatment on a class-wide basis. Since these individual
issues predominate, this proposed class cannot be certified. Babineau, 576 F.3d at
1191. See also Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1235–36 (11th Cir.
2000) (“Serious drawbacks to the maintenance of a class action are presented
where initial determinations, such as the issue of liability vel non, turn upon highly
individualized facts.”); Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1006
(11th Cir. 1997) (“[P]laintiffs’ claims will require distinctly case-specific inquiries
into the facts surrounding each alleged incident of discrimination. . . . [E]ven
factual issues that are common to many of the [ ] plaintiffs . . . will require highly
case-specific determinations at trial. These issues are clearly predominant over the
only issue arguably common to the class.”).33
IV.
CONCLUSION
Nelson’s motion for class certification [ECF 47] is DENIED. Within 14 days
after the entry of this Order, the parties are DIRECTED to file a joint, modified
scheduling order proposing future deadlines in this case.
SO ORDERED this the 18th day of September 2020.
Steven D. Grimberg
United States District Court Judge
33
Because the Court concludes that the putative class cannot be certified, it need
not address the remaining Rule 23 factors (ascertainability, numerosity,
typicality, adequacy of representation, and superiority).
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