Stalker v. MBS Direct LLC et al

Filing 60

ORDER denying 49 Sealed Motion. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARSHALL E. STALKER,
Individually and on behalf of all
Others similarly situated,
CASE NO. 10-11355
HON. LAWRENCE P. ZATKOFF

Plaintiff,
v.
MBS DIRECT, LLC and
MBS TEXTBOOK EXCHANGE, INC.,

Defendants.
____________________________________/
OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on December 20, 2012
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Plaintiff’s Motion for Class Certification and Appointment
of Class Counsel [dkt 49]. The parties have fully briefed the motion. The Court finds that the facts and
legal arguments are adequately presented in the parties’ papers such that the decision process would not
be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby
ORDERED that the motion be resolved on the briefs submitted. For the reasons set forth below,
Plaintiff’s Motion for Class Certification and Appointment of Class Counsel is DENIED.
II. BACKGROUND
Defendant MBS Direct, LLC (“MBS Direct”), as a wholly owned subsidiary of MBS
Textbook Exchange, Inc. (“MBS Textbook”) (collectively “Defendants”), operates the largest mail1 

order textbook business in the United States. Defendants serve more than 4,000 academic institutions
nationwide and processes more than 12 million new and used textbooks annually. Plaintiff, on behalf
of himself and a purported class of similarly situated individuals, alleges that Defendants employ
deceptive sales practices to mislead customers—primarily students and their parents—into paying
artificially inflated prices for textbooks.
A. PLAINTIFF’S FACTUAL ALLEGATIONS
1. Generally
Defendants maintain a network of sales agents who solicit exclusive relationships with
universities and parochial or non-public secondary schools across the country, in which the schools
agree to direct their students to purchase textbooks from Defendants at artificially inflated prices in
exchange for commissions from the sale of textbooks. Defendants typically accomplish this by
entering into a contractual relationship with each of the schools, establishing Defendants as the
“exclusive” provider. A typical contract states the following or similar language: “School agrees that
[Defendants] will be exclusive course materials retailer . . . and will only give the list of required
textbooks to [Defendants]”. Defendants have entered into such contracts with over 600 schools,
including, but not limited to, the following institutions located in Michigan: Central Michigan
University, Eastern Michigan University, the University of Michigan, University Liggett School,
Cranbrook Kingswood Schools, and Detroit Country Day. In many instances, the schools then close
their on-campus book stores in support of the exclusive relationships.
The schools provide Defendants with a list of textbooks required for students’ courses, and the
schools then establish links on their websites that direct students to Defendants’ website. Students then
enter their class information and are given a list of books assigned for those classes, which students

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may then purchase from Defendants. Plaintiff purchased textbooks from Defendants for his child, who
attended University Liggett School, by following a link on the school’s website as described above.
2. Commission to Schools
As consideration for entering into the “exclusive” contracts and funneling their students to
Defendants, Defendants offer the schools a negotiated percentage of the student purchases as an
undisclosed commission, which Plaintiff refers to as a “kickback.” If a school declines to receive a
commission, textbooks are sold at a lower price to that school’s students.
Neither Defendants nor the schools inform customers that the commissions, which range from
4-11% of the textbook sale prices, are being paid or that identical textbooks may be sold elsewhere at
lower prices. Instead, statements on Defendants’ website give the false impression that customers are
receiving lower prices by utilizing Defendants to order textbooks. For instance, on the website page
with the heading “The Advantages of MBS Direct”, it states “MBS Direct relieves the burden, hidden
costs and hassles of textbook fulfillment.” It also claims in this same section that “Best of all, there are
no start-up or hidden fees for our services.” On the screen with the heading “Why Buy From MBS
Direct?”, one of the reasons provided is “Saving Money on Your Textbooks”. It notes that “[t]he cost
of textbooks has risen dramatically. Now more than ever, students need opportunities to save money.”
Defendants’ website also lists certain frequently asked questions and answers. In response to the
question “Can I save money by purchasing course materials directly from MBS Direct?” the answer is
“Yes . . . used books, digital books (eBooks), Customer Loyalty program, and Guaranteed Buyback
were all developed to save you the most money.”
Prior to 2009, Defendants did not reveal any information on their website about the
commissions. In 2009, Defendants amended their “Privacy Policy,” which is located in the bottom
corner of Defendants’ website in small print. The Privacy Policy provides the following:

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On occasion, MBS Direct enters into agreements with educational
institutions. Under such agreements, MBS Direct may provide services
and other consideration to the educational institution, including, but not
limited to, (i) providing students of the educational institution the
opportunity to purchase books and other course materials from MBS
Direct, (ii) providing the educational institution a commission, or other
financial remuneration, based upon sales made to the educational
institutions’ students.
Plaintiff claims that the limited disclaimer is insufficient and misleading, as it merely states that
Defendants may provide consideration or payment to the educational institutions, rather than stating
that such consideration or payment will be paid. Further, Plaintiff claims this disclosure is located at
the end of the “Privacy Policy”, which is not where a consumer would normally look for this type of
information, and it is not necessary for a customer to click on this link in order to purchase a book.
3. Deceptive Practices for Used Book Sales and Purchases
In addition to selling new textbooks, Defendants also sell used textbooks. In fact, they claim to
have the largest inventory of used books in the country. Defendants also pay schools that have
exclusive contracts with Defendants an undisclosed commission on used books, which inflates the used
book prices for students. Defendants also misrepresent that they can repurchase students’ used books at
“top dollar” when, in fact, the value Defendants pay for used books at schools that have exclusive
contracts is less than the amount they pay for the same books at other institutions that do not have
exclusive contracts.
4. Defendants’ Affiliate Website
Defendants also operate an affiliate website, www.textbooks.com, which offers the same
textbooks but at significantly lower prices. In addition, www.textbooks.com offers free shipping on
orders over $25.00, while Defendants’ other website charges for shipping on all orders, regardless of
price.

Defendants do not inform students attending schools that have exclusive contracts with

Defendants that their textbooks can be purchased on its affiliate website for lower prices.
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B. CLAIMS
Plaintiff claims that, pursuant to the actions described above, Defendants (1) violated the
Michigan Consumer Protection Act (“MCPA), Mich. Comp. Laws § 445.901 et seq., (2) committed
fraudulent misrepresentations and omissions, and (3) were unjustly enriched.
Based on these claims and purported harm done to other potential Plaintiffs, Plaintiff filed the
instant motion seeking to certify the following class:
All persons who purchased textbooks and other course material
through MBS on or after April 5, 2004, whose educational institution
entered into a contract with MBS whereby MBS paid a remuneration to
the schools in exchange for the schools directing their students to
purchase textbooks and other materials from MBS.
III. LEGAL STANDARD
“A party seeking class certification must affirmatively demonstrate his compliance with the
Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties,
common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).
When reviewing a motion for class certification, the Court must conduct a “rigorous analysis” of the
requirements under Rule 23. Sprague, 133 F.3d at 397 (quoting General Telephone Co. of the
Southwest v. Falcon, 457 U.S. 147, 161 (1982)). Frequently that “‘rigorous analysis’ will entail some
overlap with the merits of the plaintiff’s underlying claim.” Wal-Mart, 131 S. Ct. at 2551-52. The
Court is not bound to accept the allegations on the face of the complaint as true, and should probe
further into the facts when necessary to determine whether these requirements have been met.
Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974) (“[O]rdinarily, the determination
should be predicated on more information than the pleadings will provide.”). “The district court retains
broad discretion in determining whether an action should be certified as a class action, and its decision,

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based upon the  particular facts of the case, should not be overturned absent a showing of abuse of
discretion.” See Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988). 
IV. ANALYSIS
To proceed with a class action, Plaintiff must satisfy requirements set forth in Fed. R. Civ. P.
23(a) and (b). Rule 23(a) authorizes one or more members of a class to bring suit as a representative
for the class if the following four requirements are met:
1) the class is so numerous that joinder of all members is impracticable
(“Numerosity requirement”);
2) there are questions of law or fact common to the class
(“Commonality requirement”);
3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class (“Typicality requirement”); and
4) the representative parties will fairly and adequately protect the
interests of the class (“Adequacy requirement”).
See Fed. R. Civ. P. 23(a).
Additionally, at least one of the three distinct elements of Rule 23(b) must also be satisfied. In
this case, Plaintiff seeks to proceed under Rule 23(b)(3), which requires 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” (“Predominance requirement”). Fed. R. Civ. P. 23(b)(3).
While making no determinations as to the satisfaction of the requirements in Rule 23(a), the
Court’s analysis begins with—and ultimately turns on—application of Rule 23(b)(3). Plaintiff “must
establish 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.’”
Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir. 2007) (citations omitted). “[C]ommon issues

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may predominate when liability can be determined on a class-wide basis, even when there are some
individualized damage issues.” Id. (citation and internal quotation marks omitted).
As described below, Plaintiff has failed to satisfy Rule 23(b)(3) because: (1) each potential
class member’s claim would be governed by the law of the State in which the member made the
challenged textbook purchase; and (2) any common issues of fact cannot overtake the individualized
legal issues that predominate this case.
A. APPLICABLE LAW
Plaintiff’s Counts are all based on state law. Thus, a preliminary question arises as to whether
the Michigan law cited by Plaintiff, a Michigan resident, to support his claims occurring in Michigan,
should be applied to the class members who live and purchased textbooks in their home States. In this
regard, Plaintiff’s Complaint and Motion appear to indicate that Plaintiff seeks to have the Court apply
the consumer protection law of the state in which each potential class member resides and purchased
textbooks. See Dkt. 1 at ¶ 56 (“As a result of MBS’ violation of the Michigan Consumer Protection
Act and similar statutes in other states, Plaintiff and members of the Class have incurred damages.”)
(emphasis added). Plaintiff, however, appears to make no indication as to whether Michigan fraud and
unjust enrichment law should be applied to the class members. The Court therefore must first
determine the law applicable to the potential class members, because “[i]f more than a few of the laws
of the fifty states differ, the district judge would face an impossible task of instructing a jury on the
relevant law.” American Medical Sys., 75 F.3d at 1085.
Michigan’s choice-of-law rules determine which state’s consumer-protection, fraud, and unjust
enrichment laws are applicable to Plaintiff’s claims. See Muncie Power Prod., Inc. v. United Techs.
Automotive, Inc., 328 F.3d 870, 873 (6th Cir. 2003) (“Federal courts sitting in diversity must apply the
choice-of-law rules of the forum state.”) (citations omitted). As Michigan’s choice-of-law rules vary

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slightly based on the type of action in question, the Court shall address the law applicable to each of
Plaintiff’s Counts in turn.
1. Counts I and II
With respect to tort actions, Michigan law applies unless there is a rational reason—such as
another state’s interest—to apply other law. See Daimler-Chrysler Svs. North America, LLC v. Summit
National, Inc., 289 Fed. App’x. 916, 921 (6th Cir. 2008) (citation omitted). The MCPA is to be
construed with reference to the common law tort of fraud. See Mayhall v. A.H. Pond Co., Inc., 129
Mich. App. 178 (1983).
In determining whether a rational reason to supplant Michigan law exists, the Court applies a
two-step analysis. Williams, 138 Fed. App’x. at 803. First, the court “must determine if any foreign
state has an interest in having its law applied. If no state has such an interest, the presumption that
Michigan law will apply cannot be overcome.” Id. Second, if a foreign state does have an interest in
having its law applied, the court must then “determine if Michigan’s interests mandate that Michigan
law be applied, despite the foreign interests.” Id. The Court does so by balancing the competing
states’ interests. Isley v. Capuchin Province, 878 F. Supp. 1021, 1023 (E.D. Mich. 1995). The Court
makes its determinations in accordance with Section 145 of the Restatement (Second) of Conflicts of
Law, which lists the following factors to consider: 1) the place where the injury occurred; 2) the place
where the conduct causing the injury occurred, 3) the domicile, residence, place of incorporation and
place of business of the parties; and 4) the place where the relationship is centered. Johnson v. Ventra
Group, Inc., 191 F.3d 732, 741 (6th Cir.1999).
Here, the potential class members reside in all fifty states and the District of Columbia
(hereinafter the “States”) and purchased textbooks in each of these locations, thereby causing the
alleged harm to occur there. As a result, the States have an interest in having their law applied to their
residents’ claims. Aside from this, Missouri—as Defendants’ principal place of business—has an
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additional interest in having its law applied to a claim against a corporation operating within its borders.
Given these competing interests, the Court proceeds to the second step of its inquiry to determine if
Michigan’s interests require the application of Michigan law.
After weighing the respective interests, the Court concludes that the consumer-protection/fraud
laws of the potential class members’ home States would govern their claims. First, the Johnson factors
all weigh in favor of applying the laws of the potential class members’ home States: 1) the harm
occurred in each potential class member’s home state; 2) the place where the conduct causing the harm
occurred is the class members’ home States; 3) the potential class members reside in their respective
home State; and 4) the relationship is centered in each potential class member’s home State. The Court
acknowledges that Missouri may have some interest in preventing deceptive or fraudulent practices by
companies operating within its borders. Yet the State with the strongest interest in regulating deception
and fraud is the State where the consumers—those receiving the “protection” of consumer-protection
laws—are harmed by deception and fraud.
Second, with respect to Michigan, the Court finds it has little or no interest in having its laws
applied to class action claims asserted against a non-resident company, primarily by non-residents who
did not purchase their textbooks in Michigan. Indeed, by enacting § 445.911(3) of the MCPA, the
Michigan Legislature attempted to prohibit such claims. See Mich. Comp. Laws § 445.911(3) (“A
person who suffers loss as a result of a violation of [MCPA] may bring a class action on behalf of
persons residing or injured in this state[.]”) (emphasis added). Thus, Michigan’s interests do not
mandate that Michigan law be applied to the potential class members’ claims; rather, each potential
member’s home State has a stronger interest in having its laws apply to its residents. The Court turns
next to the applicable unjust enrichment law.
2. Unjust Enrichment (Count III)

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In determining the choice of law rules applicable to unjust enrichment claims, courts apply
Michigan’s choice of law rules governing contract actions. See Johnson, 191 F.3d at 741 (citing Aetna
Casualty & Sur. Co. v. Dow Chem. Co., 883 F. Supp. 1101, 1104N10 (E.D. Mich. 1995)).
The common law choice of law rule followed by the Michigan courts is the traditional “law of
the place of contracting,” according to which the court is to apply the law of the place where the
contract was made. See Wells v. 10-X Mfg. Co., 609 F.2d 248, 253 (6th Cir. 1979). The Michigan
Supreme Court, however, has stated that although it has not abandoned the traditional “law of the place
of contracting” rule, it will apply the policy-centered analysis approach set forth in § 188 of the
Restatement (Second) of Conflict of Laws in appropriate cases. See Chrysler Corp. v. Skyline Indus.
Serv., Inc., 448 Mich. 113 n. 28 (1995). In such cases, courts should apply the law of the state that has
the most “significant relationship to the transaction and parties” based on: (a) the place of contracting,
(b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject
matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of
business of the parties. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 188(2) (1971).
Because an analysis using the factors in § 188(2) of the Restatement is nearly identical to the
analysis using the Johnson factors the Court used above in connection with the consumer protection
claims, the Court finds—for the same reasons—that each potential class members’ home State has the
most significant relationship to the relevant transactions and parties.

As such, the laws of each home

State must govern potential class members’ unjust enrichment claims.
Having found that the laws of each potential class member’s home State shall govern all of
Plaintiff’s claims in this case, the Court turns next to the question of whether and to what extent the
States’ laws differ from one another, because “[i]f more than a few of the laws of the fifty states differ,

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the district judge would face an impossible task of instructing a jury on the relevant law.” In re Am.
Med. Sys., Inc., 75 F.3d 1069, 1085 (6th Cir. 1996).
3. Differences in Consumer Protection and Unjust Enrichment Laws
Turning first to the States’ consumer protection/fraud laws, the Court finds them to be in
considerable variance.

See In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1018 (7th Cir.

2002) (finding that state consumer fraud laws “vary considerably” and noting that “courts must respect
these differences rather than apply one state’s law to sales in other states with different rules.”) For
instance, state consumer fraud laws vary in regard to several key issues—the type of prohibited
conduct, proof of injury-in-fact, available remedies, scienter, statutes of limitations, and reliance. See,
e.g., BMW of North Am., Inc. v. Gore, 517 U.S. 559, 570 (1996) (“The result is a patchwork of rules
representing the diverse policy judgments of lawmakers in 50 states.”); In re St. Jude Med., Inc., 425
F.3d 1116, 1120 (8th Cir. 2005) (reversing class certification because state consumer fraud laws vary
widely). Moreover, several States’ consumer fraud laws require proof of deception or reliance by each
individual class member, thereby precluding class certification. See Castano v. Am. Tobacco Co., 84
F.3d 734, 739 (5th Cir. 1996) (“[A] fraud class action cannot be certified when individual reliance will
be an issue.”).
As to unjust enrichment, the Court similarly finds that the States’ laws differ. Although unjust
enrichment claims are based on common law principles identified in the Restatement, In re Terazosin
Hydrochloride, 220 F.R.D. 672, 697 n. 40 (S.D. Fla. 2004), they nevertheless vary to some extent.
See Lilly v. Ford Motor Co., No 00 C 7372, 2002 WL 507126, at *2 (N.D. Ill. Apr. 3, 2002). In fact,
interpretations vary even within the same state, let alone among the fifty states. See In re Sears,
Roebuck & Co., Nos. 05 C 4742, 05 C 2623, 2006 WL 3754823 at *1 n. 3 (N.D. Ill. Dec. 18, 2006).
Additionally, even the actual definition of unjust enrichment varies from state to state:

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Some states do not specify the misconduct necessary to proceed, while
others require that the misconduct include dishonesty or fraud. Other
states only allow a claim of unjust enrichment when no adequate legal
remedy exists. Many states, but not all, permit an equitable defense of
unclean hands. Those states that permit a defense of unclean hands vary
significantly in the requirements necessary to establish the defense.
Clay v. Am. Tobacco Co., 188 F.R.D. 483, 501 (S.D. Ill. 1999) (internal citation omitted).
Thus, because the potential class members’ claims would require adjudication using the
varying laws of so many jurisdictions, a single nationwide class is not manageable.

See

Bridgestone/Firestone, 288 F.3d at 1018.
4. Conclusion
Having determined that the laws of the potential class members’ home States shall govern and
that these laws vary greatly, the Court finds that no common question of law predominates in this case.
See Bridgestone/Firestone, 288 F. 3d at 1017–18 (finding that common issues of law cannot
predominate if adjudication of the class claims would require the application of numerous states’
varying substantive consumer fraud and unjust enrichment laws). The Court turns next to an analysis
of whether, as an alternative, common issues of fact predominate.
B. COMMON ISSUES OF FACT
In addition to the distinct number of laws that must apply, several distinct factual matters also
weigh against the Court’s certification of the proposed class. A vital part of Plaintiff’s claim is that the
class members were misled by Defendants’ representations into purchasing textbooks at inflated prices,
when the same textbooks could be purchased cheaper elsewhere. Yet, even assuming Defendants’
arrangement with schools was the same across the country, the purported harm suffered by the potential
class members depends on highly individualized factual circumstances. For instance, where and when
consumers purchased textbooks; what textbooks they purchased; how much they paid; whether they
made the purchases because of misrepresentations; whether they could have purchased textbooks
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cheaper; and whether any resulting price difference was grounds for a legal remedy are all highly
specific determinations that vary from class member to class member. These issues are inapplicable to
the class as a whole because, varying from member to member, the issues are not subject to generalized
proof. Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir. 2007) (“[t]o satisfy the predominance
requirement in Rule 23(b)(3), ‘a plaintiff must establish 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.’”).
Moreover, these factual differences translate into significant legal differences stemming from
disparate application of States’ rules in regard to, among other issues, injury-in-fact, scienter, and
reliance. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 624 (agreeing with the Third Circuit
and finding that “[d]ifferences in state law . . . compound these [factual] disparities.”).
Also relevant is the fact that Plaintiff seeks compensatory damages for the class as a result of
Defendants’ alleged unfair or deceptive practices, as opposed to seeking class-wide injunctive or
declaratory relief. Therefore, the potential recovery of the individual class members is yet another
individualized determination that will vary from member to member. Wal-mart, 131 S. Ct. at 2558
(finding that predominance is self-evident in a collective action for an injunction, but that
individualized claims for money require the judge under Rule 23(b)(3) to make further inquiry into
predominance before allowing the class”). As such, the Court finds that individualized factual issues
predominate this case.
V. CONCLUSION
For the reasons above, the Court finds that individualized questions of fact and law
predominate this case, precluding the Court’s certification of the proposed class under Fed. R. Civ. P
23(b)(3).

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Accordingly, it is HEREBY ORDERED that Plaintiff’s Motion for Class Certification and
Appointment of Class Counsel [dkt 49] is DENIED.
IT IS SO ORDERED.
s/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
U.S. DISTRICT COURT JUDGE

Date: December 20, 2012

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