SCHWARTZ v. AVIS RENT A CAR SYSTEM, LLC
Filing
157
OPINION. Signed by Judge Jose L. Linares on 8/28/2014. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EDWARD SCHWARTZ, on behalf of
himself and all others similarly situated,
Civil Action No. 11-4052 (JLL)
Plaintiff,
OPINION
v.
AVIS RENT A CAR SYSTEM, LLC, and
AVIS BUDGET GROUP, INC.,
Defendants.
LINARES, District Judge.
This matter comes before the Court by way of Plaintiff Edward Schwartz (“Plaintiff”)’s,
motion to certify class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure,
[CM/ECF No. 146],’ and Defendants’ motion to exclude Plaintiffs expert Dr. Vicki Morwitz’s
testimony [CM!ECF No. 149.] The Court has considered the submissions made in support of and
in opposition to both motions. No oral argument was heard pursuant to Federal Rule of Civil
Procedure 78. For the reasons that follow, Defendants’ motion to exclude Plaintiffs expert
testimony is denied and Plaintiffs motion to certify is granted.
I.
BACKGROUND
Plaintiff’s Notice of Motion for Class Certification states that Plaintiff moves for certification under
Federal Rules
of Civil Procedure 23(b)(2) and 23(b)(3). [CM!ECF No. 146.] Rule 23(b)(2) states that “[a] class action
may be
maintained if Rule 2 3(a) is satisfied and if... 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 corresponding declaratory relief is appropriate
respecting
the class as a whole[.]” Fed. R. Civ. P. 23(b)(2). As discussed with the parties during oral arguments
on July 9tI, 2014,
Defendants ceased engaging in the practices complained about in this action at the end of the
class period. Transcript
of Oral Argument at 17, Schwartz v. Avis, 2014 WL 3866476 (No. 11-4052). As such, the issue
of injunctive relief is
no longer applicable to this case. Moreover, Plaintiff does not discuss class certification regarding
his declaratory
relief claim in his moving brief. Thus, it will not be addressed in this Opinion.
As the Court writes only for the parties, it will set forth only those facts it deems relevant
to deciding Defendant’s motion.
Plaintiff brings this action on behalf of himself and a putative class of Avis customers who
were charged a $0.75 surcharge for earning frequent-flyer miles and other rewards through their
participation in Avis’s Travel Partner Program (the “Program”).
The Program allows participating customers who rent a car from Avis to earn frequentflyer miles or other rewards with certain airlines, hotels, and other companies (Avis’s “Travel
Partners”). Avis pays its Travel Partners for the points and miles earned by customers who
participate in the Program, and also pays federal taxes on these points and miles. To offset part of
its costs, Avis charges participating customers $0.75 per rental day.
On May 15, 2011, Plaintiffmade an online reservation on Avis’s website for a rental vehicle
between May 15—16, 2011. Plaintiff was to pick up, and return his vehicle at Manchester—Boston
Regional Airport. According to Plaintiff, Avis’s website prompted him to enter his Continental
Airlines frequent-flyer number so that he could earn miles through the Program. Upon completing
his online reservation, Plaintiff received an email confirmation containing an itemized list of
estimated rental costs, which did not include any charge for earning frequent-flyer miles or rewards
through the Program. The email read:
Base Rate and Charges
Base Rate
Energy Recovery Fee
Vehicle License Fee
Customer Facility Fee
Concession Recovery Fee
Tax (9.0%)
$94.99/day
$0.50/day
$3.00/day
$2.25/day
10%
$9.92
Rental Options
GPS Navigation
$13.95
2
Additional Fees
Optional equipment and coverages may be subject to taxes and fees that are not included in the
estimated total.
Where2 GPS Navigation—Taxes not included.
Gas Service Option—Fees for the Gas Service Option are not included in the Estimated Total.
As a participant in Avis’s Preferred Service Program, Plaintiff was able to bypass the
service counter and proceed directly to his rental vehicle on the date of his arrival at Mancherster—
Boston Regional Airport. Plaintiff claims that Avis placed a document confirming the terms of the
rental (the “Rental Document”) inside his rental car. The Rental Document included a list of the
same itemized charges that had appeared in the email confirmation that Plaintiff received, as well
as a $0.75 daily surcharge described as an “FTP SUR” charge. When Plaintiff returned the car,
Avis issued him a receipt (the “Return Document”) that again listed all the charges for the rental,
and a $0.75 charge described as “FTP—SR.”
On July 16, 2014, Plaintiff moved to certify his claims for: (1) violation of the New Jersey
Consumer Fraud Act (“NJCFA”), N.J.S.A.
§ 56:8—1 et seq.; (2) breach of contract; and (3) breach
of the covenant of good faith and fair dealing. [CM/ECF No. 146.] On the same day, Defendants
moved to exclude the testimony of Plaintiff’s expert. [CMJECF No. 149.]
IL
LEGAL STANDARD
A. Motion to exclude
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony.
Rule 702 allows a witness qualified as an expert to give testimony if the expert’s scientific,
technical or specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue if: (i) the testimony is based upon sufficient facts or data, (ii) the testimony
3
is the product of reliable principles and methods, and (iii) the expert witness has applied the
principles and methods reliably to the facts of the case. Fed. R. Evid. 702. The Third Circuit has
explained that Rule 702 “embodies a trilogy of restrictions on expert testimony: qualification,
reliability, and fit.” Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) (citing In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 741-43 (3dCir. 1994)).
The District Court is required to act as a gatekeeper, preventing the admission of opinion
testimony that does not meet these three requirements. Id. (citing Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 592 (1993)). The proponent of the evidence bears the burden of establishing
the existence of each factor by a preponderance of the evidence. Daubert, 509 U.S. at 592; In re
Paoli, 35 F.3d at 743-44. A court’s rejection of expert testimony should be the exception rather
than the rule. Fed. R. Evid. 702 Advisory Committee Note. As the Supreme Court noted in
Daubert, “vigorous cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” 509 U.S. at 595.
B. Motion to certify
Class certification is proper only “if the trial court is satisfied, after a rigorous analysis, that
the prerequisites’ of Rule 23 are met.” In re Hydrogen Peroxide Antitrust Litigation. 552 F.3cl 305,
309 (3d Cir.2008) (quoting Gen Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). To meet the
prerequisites of Rule 23, a plaintiff must establish both that the four requirements of Rule 23(a)
have been met—numerosity, commonality, typicality, and adequacy—and that the pleading
requirements of Rule 23(b)(1), (2), or (3) have been met. Fed. R. Civ. P. 23; see also Hydrogen
Peroxide, 552 F.3d at 309 n. 6. The plaintiff bears this burden by a preponderance of the evidence.
Hydrogen Peroxide. 552 F.3d at 320. Rule 23(b)(3) requires that a plaintiff also establish “that the
4
questions of law or fact common to the 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.” Fed. R. Civ. P. 23(b)(3); see also Hydrogen
Peroxide, 552 F.3d at 310.
When determining whether these requirements have been met, “the district court must
make whatever factual and legal inquiries are necessary and must consider all relevant evidence
and arguments presented by the parties.” Marcus v. BMW ofN. Am., LLC, 687 F.3d 583, 591 (3d
Cir. 2012) (quoting Hydrogen Peroxide, 552 F.3d at 307). “This is true even if the class
certification inquiry overlaps with the merits of the causes of action.” Id.
III.
ANALYSIS
A. Motion to Exclude
Before this Court can consider whether class certification is appropriate in this case, it must
decide whether it should exclude the testimony of Plaintiff’s expert witness. As discussed below,
Defendants
argue
that
Plaintiff does
not meet
the
predominance requirement
for
Rule 23 certification of the NJCFA claim because he cannot show that: (i) the disclosures of the
frequent-flyer miles surcharge was not knowable to a significant number of class members, or (ii)
if the surcharge had been knowable, most class members would not have signed up for Avis’s
frequent-flyer program. (Def. Br. 15-16, 19-20) (relying on Marcus, 687 F.3d at 607-08). In
arguing that the present case satisfies either of the two Marcus prongs, Plaintiff relies on the expert
report of Dr. Vicki Morwitz. Defendants have moved to exclude this report, arguing that it does
not comply with the standards of admissibility set forth by the United States Supreme Court in
Daubert. Because the exclusion of Dr. Morwitz’s report would defeat Plaintiff’s attempt to certify
5
his NJCFA claim, this Court will address Defendants’ Motion to Exclude before addres
sing the
merits of Plaintiff’s Motion to Certify.
In order for a witness to be deemed qualified to testify as an expert, he or she must posses
s
specialized knowledge, skill, experience, training or education. Fed. R. Evid. 702;
Schneider, 320
F.3d at 407; In re Paoli, 35 F.3d at 741. Furthermore, testimony is said to be reliabl
e if it is “based
on the methods and procedures of science rather than on subjective belief
or unsupported
speculation.” In re Faoli, 35 F.3d at 741-43. In other words, the expert must
have a reliable basis
for his or her belief. Id.; see also Daubert, 509 U.S. at 590 (stating that propos
ed testimony must
be supported by appropriate validation). Lastly, in order for expert testimony
to be deemed fit, it
must be relevant for the purposes of the case and must assist the trier of fact. Schnei
der, 320 F.3d
at 404.
Defendants do not argue that Dr. Morwitz is not qualified to speak on the underl
ying
subject or that her opinions are not relevant to the issues in this case. Instead,
Defendants solely
argue that Dr. Morwitz’s opinions as to the two Marcus prongs are unrelia
ble. The Court will
address these arguments in turn.
1. The Knowability Prong of Marcus
In her report, Dr. Morwitz concludes that during the relevant time periods, “virtua
lly none”
of Defendants’ customers could have known that they were being charge
d a surcharge for earning
frequent-flyer miles. (Docket #146-15.) To support this opinion, Morwitz
relies on (i) a number of
documents that contain the surcharge disclosure, (ii) data regarding the numbe
r of visitors to Avis’s
website, (iii) data from other airlines concerning how they distribute
frequent-flyer miles, and (iv)
scholarly literature.
6
Defendants first argue that Dr. Morwitz’s report is unreliable because she did
not conduct
a survey of Avis’s customers to determine whether they were aware of the
surcharge. (Def. Br.
18.) However, Defendants have not cited to a case that holds that the lack
of a consumer survey
automatically renders an expert’s report inadmissible. At the same time,
their reliance on !“/eale v.
Volvo Cars ofN. Am., LLC, No. 10-4407, 2013 WL 784962 (D.N.J. Mar.
1, 2013) is misplaced.
In Neale, the defendants’ expert issued an opinion regarding the ineffectivenes
s of a recall notice,
citing to a study “demonstrating that on average 70% of vehicle owners
responded
to recall notices,
with response rates as low at 23% and as high as 96%.” Id. at *3 The
court found the expert’s
opinion to be unreliable because the expert did not determine where Volvo
owners fall within that
rage, and if such owners “have an average response rate on the higher end of
that range, [the expert]
could not argue that a reasonable person would not respond to a recall
notice about the alleged
defect.” Id. This problem does not exist in the present case, as Dr. Moritz
does not rely on a study
that yields results of such a wide range. Though she uses academic literatu
re to inform her opinion,
Plaintiffs expert relies on the available web traffic data of Avis.com
to determine that almost no
customers clicked on the different links that contained information
about the frequent-flyer miles
surcharge. This data showed that, from January 2009 to June 2012,
less than 1% of the customers
that visited Defendants’ website clicked on the surcharge inform
ation links.
Defendants also take issue with Dr. Morwitz’s analysis of the Rental
Documents. For
example, Defendants point to Dr. Morwitz’s reliance on a study
that concludes that 85% of
customers do not examine supermarket receipts for accuracy, and
argue that because this study
shows that 15% of supermarket customers do examine their receipt
s, her opinion is unreliable.
This Court, however, fails to see how a study confirming that only
7
a minority of customers examine
their receipts undermines Dr. Morwitz’s conclusion. Defendants also argue that Dr. Morwitz’s
2
opinion that most consumers would not understand that “FTP SUR” is shorthand for “Frequ
ent
Traveler Surcharge Program” is unreliable because the only way to know what consum
ers
understood would be to look at empirical data or ask each consumer directly. Howev
er, in
concluding that this shorthand is an example of price obfuscation, “which means presen
ting price
information in a manner that is confusing to consumers and designed not to be noticed
or processed
carefully,” (Morwitz Report at 23), Dr. Morwitz relies on literature concerning this practic
e. (See
id. at 12.) Thus, Defendants are incorrect in arguing that Morwitz’s opinion is based only
on her
subjective beliefs. If anything, the absence of a study conducted by Plaintiffs expert regard
ing
consumers’ reactions to the “FTP SUR” shorthand is relevant to the weight, not the admiss
ibility,
of her conclusion. See In re TMILitig., 193 F.3d 613, 692 (3d Cir. 1999) amend
ed, 199 F.3d 158
(3d Cir. 2000) (“So long as the expert’s testimony rests upon “good grounds”, it should
be tested
by the adversary process.
•
.
.
.
rather than excluded from juror’s scrutiny for fear that they will not.
satisfactory weigh its inadequacies.”). Finally, Defendants criticize Dr. Morwitz’s
conclusion
that the Rental Documents are insufficient because they are received after the
rental has already
concluded, arguing that most customers are repeat renters and therefo
re had numerous
opportunities to learn of the surcharge. However, because Dr. Morwitz conclu
des that most
consumers do not examine their receipts for accuracy, the fact that most custom
ers are repeat
renters is not dispositive.
2
Defendants mainly take issue with the fact that Dr. Morwitz relies on
this study to conclude that “virtually none” of
Avis’s customers knew about the surcharge. This court agrees that if
15% of Avis’s customers did in fact know
about the surcharge, the term “virtually none” would be an exaggeration.
However, this study is not the sole basis
upon which Dr. Morwitz forms her conclusion, and thus it is plausible that
this study in conjunction with the other
literature and data relied on by Dr. Morwitz supports her “virtually none”
conclusion.
8
Defendants’ third set of arguments focuses on Dr. Morwitz’s critique of the surcharge
disclosures on Avis’s website. In concluding that Avis’s website did not inform consum
ers of the
surcharge during the relevant time periods, she relies on data that shows that from January 2009
through June 2012, a very insignificant number of visitors to Avis.com viewed the webpa
ge that
provided information about the surcharge. For example, in January 2009, of the 2,272,074 visitor
s
to Avis.com, only .007% clicked through to this page. Defendants argue that this data is unrelia
ble
because some consumers may have visited the disclosure webpage before 2009, and some
may
have already been aware of the surcharge and therefore had no reason to visit the
disclosure
webpage. However, these arguments rest on speculation, and Dr. Morwitz’s reliance on
data that
does not extend earlier than January 2009 is only relevant to the weight of her testimony, not
its
admissibility. See In re Front Loading Washing Mach., No. 08-51, 2013 WL 34668
21, at *8
(D.N .J. July 10, 2013) (finding that while an expert’s testimony would have been strong
er if he
conducted a test in a more accurate manner, “this factor goes to weight and not admiss
ibility”).
Defendants also argue that Dr. Morwitz’s opinion that a reasonable consumer would have
been
confused by Avis’s labeling of the surcharge as a “tax” on its website is unrelia
ble because
Morwitz points to no evidence to support this proposition. However, in forming her
opinion, she
relies on academic literature concerning the way consumers react to the word “tax”
(see Morwitz
Report at 19), and as discussed above, the fact that Dr. Morwitz did not gather her own
data does
not render her opinion inadmissible.
Finally, Defendants argue that Dr. Morwitz’s opinion ignores additional ways in which
the
surcharge was disclosed, including (i) advertisements that Avis placed in variou
s periodicals, and
(ii) disclosures that appeared on the webpages of airlines. However, to the extent
that Defendants
wish to use their own evidence to contradict Dr. Morwitz’s report, the approp
riate time to do so is
9
not in a motion to exclude. Instead, Defendants’ evidence and arguments will be considered during
this Court’s class certification analysis.
Accordingly, this Court does not find that Dr. Morwitz’s report regarding the knowability
prong of Marcus is unreliable under Daubert.
2. The Materiality Prong of Marcus
In her report, Morwitz concludes that “even had Avis’s frequent-flyer surcharge been
knowable to consumers, only an insignificant number of them would likely have purchased these
miles and have paid Avis’s surcharge anyway.” (Morwitz Report at 26.) To support this opinion,
Morwitz relies on (i) academic literature that demonstrates that consumers enjoy receiving
products that are offered for free, (ii) her independent analysis that verifies that the vast majori
ty
of frequent-flyer miles that consumers can obtain are available without a surcharge or fee, and (iii)
academic literature that suggests that consumers are less likely to buy products when these
products cost more than what consumers expect them to cost.
Defendants first argue that Morwitz’s opinion regarding materiality is unreliable because
Morwitz did not conduct a survey or gather any empirical data concerning the amount that Avis
customers might expect frequent flyer miles to cost, and instead bases her conclusions on her own
subjective beliefs. However, while Morwitz did not gather any data, she relies on schola
rly
literature and data from other airline. Thus, her opinion is not, as Defendants suggest, comple
tely
unfounded. Further, the two cases cited by Defendants to support this argument are distinguishab
le
from the present case. In Bowers v. Nat’l Collegiate Athletic Ass’n, 564 F. Supp. 2d 322,
356
(D.N.J. 2008), the Court excluded expert testimony regarding “accommodations and support that
are available to learning disabled college students, and the success of such students in college
.”
The Court found the expert’s testimony to be unreliable because he relied solely
on his own
10
experience and did not explain why that experience was a sufficient basis for his opinio
n. jç at
357. Further, when plaintiff’s counsel emailed the expert explaining the testimony that
she needed,
the expert replied that he would “ask around on the student athletes with disabilities,”
which the
court found to be suspect. Id. Such issues are not present in this case. Defendants
also cite to
American Home Products Corp. v. Procter & Gamble Co., 871 F. Supp. 739 (D.N.J 1994)
.
for the
proposition that a survey is needed to support an expert’s opinion regarding
consumer
expectations. However, American Home Products was a Lanham Act case wherein the
Court stated
that “[b]ecause [p]ublic reaction is the measure of a commercial’s impact, an implie
d falsity claim
[under the Lanham Act] must be proven in a false advertising case via the use of
a consumer
survey.” As such, American Home Products is inapplicable to the present case.
Second, Defendants complain that Morwitz’s opinion that most consumers are able
to
receive frequent-flyer miles for free is “entirely unsupported (and in fact, is incorre
ct).” (Defs’
Mot. at 19). However, Morwitz’ opinion is not “entirely unsupported,” as she bases
her conclusion
on data from multiple airlines concerning the way they distribute their frequent-flye
r miles. (See
Morwitz Report at 28.) Whether or not her conclusion is incorrect is a questio
n that should not be
answered when the Court is determining whether to exclude an expert under
Daubert. See Oddi v.
Ford Motor Co., 234 F.3d 136, 145-46 (3d Cir. 2000) (“The test of admissibility
is not whether a
particular scientific opinion has the best foundation or whether it is demonstrably
correct. Rather,
the test is whether the particular opinion is based on valid reasoning and reliabl
e methodology.”
(internal quotations and citation omitted))
Finally, Defendants argue that Morwitz’s opinion is undermined by a survey
conducted by
Defendants’ expert, Dr. Ravi Dhar, whereby Dhar shows that roughl
y the same number of
respondents opt for frequent flyer miles whether the surcharge is disclosed
(96.7% of respon
dents)
11
or not (97.5% of respondents). However, while Defendants may attempt to impeac
h Morwitz using
this survey, it does not serve as a basis for excluding her report. See Daube
rt, 509 U.S. at 595
(stating that the “presentation of contrary evidence.
.
.
[is a] traditional and appropriate means of
attacking shaky but admissible evidence”); In re Jacoby Airplane Crash Litig.,
No. CIV. 99-6073,
2007 WL 2746833 (D.N.J. Sept. 19, 2007) (“As Plaintiffs persuasively argue.
.
.
[d]isagreement
of another expert does not render a report untrustworthy.” (internal quotat
ions omitted)).
Accordingly, Defendants’ Motion to Exclude is denied.
B. Motion to Certify
1. Class Definition
Before considering whether Plaintiff has met the requirements for Rule 23 certific
ation,
this Court must first determine whether the proposed “parameters definin
g the class or classes to
be certified” are “readily discernible, clear, and precise[.j” Marcus, 687
F.3d at 591 (quoting
Wachtei v. Guardian Lfe Ins. Co., 453 F.3d 179, 187 (3d Cir. 2006)). Plainti
ffs define the proposed
class as:
All Avis Preferred members with a United States address who, until
June
14,2012, rented a vehicle through www.avis.com and who paid a surcha
rge
for receiving frequent-flyer miles from any of Defendants’ travel partner
s.
(P1. Br. 2.) Defendants do not challenge the parameters of Plaintiffs class
definition.
Here, the proposed class members enrolled in Avis’s Preferred progra
m, rented a vehicle
through Defendants’ website, and purchased frequent-flyer miles.
As such, Defendants have a
record of their contact information and the amount of money they
spent on the frequent-flyer mile
surcharges. This is sufficient for this Court to conclude that the propos
ed class definition is “readily
discernible, clear, and precise.” Marcus, 687 F.3d at 591.
2. Class Certification
12
Plaintiff seeks class certification under Federal Rule of Civil Procedure
23(b)(3) for his
claims for: (I) violation of the NJCFA; (2) breach of contract under New
Jersey common law; and,
(3) violation of Defendants’ duty of good faith and fair dealing. Rule 23(b)(3
) provides that in
order to maintain a class action, the Court must first determine that the
prerequisites of Federal
Rule of Civil Procedure 23(a) are satisfied, in addition to the requirements
of 23(b)(3). Rule 23(a)
requires a showing of (1) numerosity; (2) commonality; (3) typical
ity; and (4) adequacy of
representation. Georgine v. Amchem Prods., 83 F.3d 610, 624 (3d
Cir. 1996) (citing Fed. R. Civ.
P. 23(a)). In addition, Rule 23(b)(3) requires a finding “that the questio
ns of law or fact common
to the members of the class predominate over any questions affecting
only individual members,
and that a class action is superior to other available methods for the fair
and efficient adjudication
of the controversy.” Fed. R. Civ. P. 23(b)(3).
Defendants argue that Plaintiff’s motion should be denied because:
(1) Plaintiff’s claims
are not typical of those of the class he purports to represent; (2) class
a
action is not the superior
method for adjudication of this case; (3) Plaintiff and his counsel “may
not” satisf’ the adequacy
requirement under Rule 23; and (4) individual issues predominate
over common ones. Though
they do not challenge the numerosity and commonality requirements
for certification, this Court
will consider all of the Rule 23 requirements in turn.
1. Numerosity
Rule 23 (a)( 1) provides that the proposed class must consist
of members that are so
“numerous that joinder of all members is impracticable.” Fed. R. Civ.
P. 23(a)(1). “Impracticability
does not mean impossibility but only the difficulty or inconvenienc
e ofjoining all members of the
class.” Zinberg v. Washington Bancorp, Inc., 138 F.R.D. 397,
406 (D.N.J. 1990) (quoting Harris
v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14
(9th Cir. 1964). Similarly, this Court
13
has held that “[t]o meet the numerosity requirement, class representatives must demonstrate only
that ‘common sense’ suggests that it would be difficult or inconvenient to join all class members.”
Varacallo v. Massachusetts Mitt. Life Ins. Co., 226 F.R.D. 207, 229 (D.N.J. 2005) (quoting In re
Prudential Ins. Co. ofAm. Sales Practices Litig., 962 F.Supp. 450, 507 (D.N.J. 1997) affd sub
nom. In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283 (3d Cir. 1998)
(hereinafter “Prudential 1”). Joinder of a class that numbers in the hundreds will normally be found
impracticable, although the numerosity requirement is usually satisfied with much smaller classes.
See Prudential I, 962 F.Supp. at 510 (citing 1 Herbert Newberg & Alba Conte, Newberg on Class
Actions
§ 3.05, at 3-25).
Here, Plaintiff argues that joinder of all Class Members is impracticable because “1 1.9
million rental transactions” that “involved a frequent-flyer surcharge” occurred through
Defendants’ website between January 2005 and August 2011. (P1. Br. 7-8) (citing Docket #14616.) This amount of rental transactions is sufficiently high to make joinder of all the class members
difficult or impractical. See Prudential .1, 962 F.Supp. at 510. Defendants have not presented
evidence showing otherwise. Thus, this Court finds that the numerosity requirement of Fed. R.
Civ. P. 23(a)(1) is satisfied.
2. Commonality and Predominance
It is customary in Rule 23(b)(3) class actions for courts to jointly apply the Rule 23(a)(2)
commonality requirement and the Rule 23(b)(3) predominance test. See Varacallo, 226 F.R.D. at
230. The Third Circuit has approved this approach. See In re Warfarin Sodium Antitrust Litig., 391
F.3d 516, 528 (3d Cir. 2004) (“[T]he Rule 23(b)(3) predominance requirement, which is far more
demanding, incorporates the Rule 23(a) commonality requirement.... Accordingly, we analyze
the
two factors together.
.
.
.“
(citations omitted)); Amchem Prods., 83 F.3d at 626.
14
Under Rule 23(a)(2), commonality is satisfied if “there are questions of law or fact comm
on
to the class.” Fed. R. Civ. P. 23(a)(2). Not all claims or facts have to be comm
on to all class
members; “the commonality requirement will be satisfied if the named plainti
ffs share at least one
question of fact or law with the grievances of the prospective class.” Prudential
I, 148 F.3d at 310;
Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994).
However, for a class that is certified under Rule 23(b)(3), which the Plainti
ffs are here
seeking, the Court must also find that these common questions predominate
over individual issues.
Prudential I, 962 F.Supp. at 510-11. “To assess predominance, a court at
the certification stage
must examine each element of a legal claim ‘through the prism’ of Rule 23(b)(3
).” Marcus, 687 at
600 (quoting In re DVL Inc. Sec. Litig., 639 F.3d 623, 630 (3d Cir. 2011))
. A plaintiff must
“demonstrate that the element of [the legal claim] is capable of proof at trial
through evidence that
is common to the class rather than individual to its members.” Id. (quotin
g Hydrogen Peroxide,
552 F.3d at 311). “Tn cases where it is alleged that the defendant...
engaged in a common course
of conduct, courts have found that conduct to satisfy the commo
nality and predominance
requirements.” Varacallo, 226 F.R.D. at 231. In addition, the need
to calculate “damages on an
individual basis should not preclude class [certification] when the commo
n issues which determine
liability predominate.” Holmes v. Pension Plan ofBethlehem Steel Corp.,
213 F.3d 124, 137 (3d
Cir. 2000); see also Bogosian
i’.
Gulf Oil Corp., 561 F.2d 434, 456 (3d Cir. 1977).
Defendants do not contest that the commonality requirement is satisfie
d. Instead, they
argue that Plaintiff does not satisfy the predominance requirement
of Federal Rule of Civil
Procedure 23(b)(3) for neither the NJCFA claim nor the common law
of duty of good faith and fair dealing claims. (Def Br. 22.)
i.
Predominance of Plaintiff’s NJCFA claim
15
breach of contract and breach
To establish a cause of action under the NJCFA, a plaintiff must show: (a) an unlawf
ul
conduct by the defendant; (b) that the plaintiff suffered an ascertainable loss; and, (c)
a causal
connection between defendant’s unlawful conduct and plaintiffs ascertainable
loss. Int’l Union
of Operating Eng ‘rs Local No. 68 Welfare Fund v. Merk & C’o., Inc., 929 A.2d
1076, 1086 (N.J.
2007) (quoting N.J.S.A.56:8-2).
Here, Plaintiff argues that Defendants engaged in two different types of unlawful conduc
t:
intentional omissions and unconscionable commercial practices. (Compl. at ¶J61-6
2; P1. Br. 1516.) According to Plaintiff, Defendants knowingly omitted the fact that Avis charge
d $0.75 a day
for participating in its Program “by both failing to include [this fact] in a place where
Plaintiff and
other reasonable renters would expect to see them and by instead (to the extent that any
disclosure
was made at all) hiding these facts in obscure places with the intention that neither
Plaintiff nor
other reasonable renters ever see them[.]” (Compl. at ¶61.) The unconscionab
le commercial
practices alleged by Plaintiff are premised on this omission. (Docket #57, fn 3.)
Plaintiff argues that the class will be able to prove the unlawful conduct elemen
t with
common evidence because Defendants’ actions were uniform as to all membe
rs of the class. (P1.
Br. 15-16.) This Court is satisfied that Plaintiff will be able to prove this elemen
t using common
evidence given the fact that Avis entered into a standard form contract with million
s of customers
over the class period and that the surcharge information was presented in similar
manner to most
Avis customers for that period.
Regarding the ascertainable loss element, Plaintiff argues that “class members
need merely
show the amount of the surcharge they paid to Defendants, which is
easily discernable from
Defendants’ transaction data.” (P1. Br. 18.) This Court agrees. An ascerta
inable loss is “either out
of-pocket loss or a demonstration of loss in value
16
.
.
.
that it is quantifiable or measurable.”
Thiedemann v. Mercedes-Benz USA, LLC, 872 A.2d 783, 792 (N.J. 2005). Here, the ascertainable
loss is the amount paid in surcharges for participation in the Program, which is easily quanti
fiable
and measurable.
Finally, Plaintiff argues that the class can prove the causality element of the NJCFA claim
with common evidence. The determination of whether common questions predominate
over
individual ones regarding this final element depends on the type of unlawful conduct alleged
by
the plaintiff. When the alleged unlawful conduct is a “knowing omission,” a court must find:
[E]ither (I) that the alleged [omissions] were not knowable to a significant
number of potential class members before they purchased.. [the product],
or (2) that, even if the [omissions] were knowable, that class members were
nonetheless relatively uniform in their decision-making, which would
indicate that, at most, only an insignificant number of class members
actually knew of the alleged [omissions] and purchased. [the product] at
the price they did anyway. These finding cannot be side-stepped. They are
necessary to determine whether the predominance requirement is met in this
case.
.
.
.
Marcus, 687 F.3d at 6l0.
With respect to the first Marcus prong, Defendants argue that Plaintiff fails to meet
the
predominance requirement because the information regarding the $0.75 surcharge was
knowable.
(Def. Br. 15.) They attempt to demonstrate this by presenting several ways in which
the surcharge
was disclosed and arguing that a significant number of customers knew about the surcha
rge given
the aggregate sources of information. This is unpersuasive, especially considering
that all of the
rentals in question were done exclusively through Avis’s website. At the same
time, Defendants
do not present expert opinion to establish that the surcharge was knowable. Instead
, Defendants’
expert only addresses the “knowability” prong by questioning the reliability of
Plaintiff’s expert’s
Because this Court has previously held that Plaintiff properly pleaded an uncons
cionable commercial practice
under the NJCFA “[tb the extent that Avis’s alleged unconscionable conduc
t [was] premised on alleged omissions,”
(Docket No. 57, fn 3), this Court will apply the Marcus Court’s “knowability
” requirement to both unlawful
practices alleged by Plaintiff.
17
testimony. Given the evidence presented by the parties, including their
experts’ testimonies, this
Court concludes that the information about the surcharge was “not
knowable to a significant
number of potential class members[.]” Marcus, 687 F.3d at 610.
Avis did not suitably disclose the surcharge on their webpage
from 2005 to June 2012,
when the class period ends. Though Defendants claim that “Preferred
Customers were always able
to see that a $0.75-per-rental-day surcharge would be assessed if
they opted to obtain frequent
flyer miles[j” because they provided different links to this inform
ation throughout the car rental
process, the links they describe were not conspicuously presented
to customers. (Def. Br. 7-8, fri
6.) From 2005 to January 2009, the surcharge was disclosed throug
h a web link “that appeared on
the bottom of the web page on which members of Avis’s Preferred
Service Program
.
.
.
would
enter their profile information, information regarding their membe
rship in any relevant frequent
travel programs, and their travel preferences.” (Docket #146-9, 4.)
According to Plaintiff’s expert,
Dr. Morwitz, it would have been unlikely for a customer to have
noticed this link at the bottom of
that page. (Docket #146-15, 12.) In support, she points to the Januar
y 2009 data of webpage visits
for Avis.com, which shows that out of 2,272,074 unique visitors to
the site, only 165 people clicked
on the link that provided the surcharge information. (Id. at 13.) The
expert states that this sample,
although small, is indicative of the web traffic since 2005. (Id.)
She based this opinion on “both
the data on webpage viewership for the end of this time period
, data for the later time period, and
the consistency of these data across time, as well as on academic
literature[.]” (Id. at 13-14.)
Dr. Morwitz also points out that the link was presented “far
from webpages where Avis
list[edi other rental-car-cost information[.]” (Id. at 13.) Because of this, she
describes the surcharge
information as a “shrouded attribute,” or “information that
firms hide or obfuscate from their
customers.” (Id. at 12.) She supports this statement with
studies about how consumers have
18
incomplete pricing information when companies “make finding price information
complicated,
difficult, or confusing.” (Id.)
From January 2009 to May 2012, Avis moved the link that disclosed the
surcharge to “a
webpage originating under the major heading ‘Cars and Services.” (Id. at
17.) In order to locate
the link, a customer would have had to click on “Cars and Servic
es,” then “Miles &
Points/Partners,” then “Airlines,” and then choose an airline. (Id.) Once the
airline was chosen, a
link entitled “Click here for Frequent Traveler Tax/Surcharge Information”
was located near the
bottom of the page. (Docket #146-9, 5.) Dr. Morwitz considers this anothe
r example of “shrouded
attribute.” She explains that in order to find the link during this period, a
customer would have had
to start the search for this information under the tab labeled “Cars and Servic
es,” a title which is
“reasonably unrelated to Avis’s surcharge.” (Docket #146-15, 17-18.) She explain
s that during this
period “virtually no consumers viewed Avis’s frequent-flyer surcharge inform
ation.” (Id. at 18.)
She also argues that even if a customer reached the page with the surcha
rge disclosure link, the
title of that link, “Frequent Traveler Tax,” is confusing and would not lead
people to think that it
discloses a surcharge for frequent flyer miles. (Id.) She supports this
argument with academic
literature that explains how people interpret a cost labeled as a “tax” rather
than a “surcharge.” (Id.
at 19-20.)
Finally, for the period between May 2012 and June 2012, Defendants
moved the link
disclosing the surcharge to the page for “step 4 of the online reservation
process.” (Docket #1469, 7.) The link was titled “Help?” and was located in the section of the
page
where customers could
enter their flight information. (Id.) If customers clicked on the “Help?
” link, they would be sent to
a different page with a link titled “Frequent-Flyer Tax Recovery/Su
rcharge.” (Id.) Dr. Morwitz
19
again explains that virtually no customers clicked on this link during this period. (Docke
t #14615, 21.) Her analysis for this period is similar to the analysis of the periods explained above.
Defendants’ expert, Dr. Dhar, criticizes this analysis because Dr. Morwitz does
not use
“empirical analysis” to reach her conclusions. (Docket #147-5, 3.) However,
Dr. Dhar does not
present his own empirical data as a counterargument. Instead, he points to differe
nt sources from
which a customer might have gotten notice of the surcharge. He concludes, withou
t support, that
“it is likely that individual renters would have differed as to their awaren
ess of the surcharge
depending upon their attention to these sources.” (Id. at 8.) Dr. Dhar
also points out that Dr.
Morwitz did not consider the changes made to the surcharge disclosure in Februa
ry 2013. (Id. at
7.) He argues that “[t]his is significant in light of the large number of members of
the putative class
who visited the Avis website after February 2013 and likely had knowledge
of the surcharges
based on the online rental reservation process on the website alone.” (Id.)
This criticism, however,
is irrelevant because the class period ends in 2012.
Dr. Dhar also suggests that Dr. Morwitz’s conclusion is flawed becaus
e she does not take
into account whether the customers that visited the Avis website did not
click on the surcharge
disclosure links because they had previously discovered said surcharge.
(Id. at 8.) Kowever, Dr.
Morwitz does consider this. As explained above, she considers how few
people clicked on the link
for a period of time, and took into account the consistency of the data
throughout that time. She
also relies on studies that show that “the more often a consumer visits
the same website, the less
time this consumer spends on that website.” (Docket #146-15, 12.)
Based on this, Dr. Morwitz
concluded that repeat renters were less likely to deviate from the pages
that they needed to visit in
order to make a car rental. (Id. at 15-16.)
20
Given Dr. Morwitz’s expert analysis, this Court concludes that the surcharge
information
was not knowable. Though Defendants argue otherwise by pointing to source
s other than the Avis
website through which customers could have discovered the surcharge,
this Court finds this
unpersuasive. The rental documents did not disclose the surcharge
to Plaintiff before he finalized
the car rental online because they were given to him when he picked up his
car and once he returned
it. Moreover, the surcharge was listed in these documents under the code
“FTP SUR” and “FTPSR.” Similarly, the e-Receipt was sent to Plaintiff after the car was returne
d.
Additionally, Defendants point to print ads as a source of disclosure.
However, these ads
mention the surcharge in the fine print. Moreover, Defendants
do not present any evidence
regarding where these ads were published or the rate of circulation. They
also argue that members
of the putative class could have discovered the surcharge by visitin
g their Travel partners’
webpages. Yet, Defendants acknowledge that these pages stated that a
surcharge “may” apply, not
“will apply.”
Finally, Defendants argue that Plaintiff should have known about
the surcharge because
charging for frequent-flyer miles is common knowledge. Plainti
ff’s expert concludes that
“consumers do not need to pay a fee to obtain frequent-flyer miles
from the airlines themselves.”
(Docket #146-15, 29.) Dr. Morwitz based this opinion on differe
nt airlines’ data of the total of
frequent flyer miles that were earned and redeemed by their custom
ers “(1) from their own flights;
(2) from flights on their partner airlines; and (3) through rental-car
companies, hotels, credit cards,
miles sold to customers, and other means.” (Id.) With this inform
ation, she concluded that for the
period between 2005 and 2012, over 91% of the frequent-flye
r miles made available by airlines
were earned “for no additional cost.” (Id. at 31.) Defendants’
expert, Dr. Dhar, attempts to rebut
this claim by pointing out that most credit card companies
that offer miles charge a fee and that
21
other car rental companies charge similar surcharges. (Docket #147-5, 4.) Howev
er, Defendants’
evidence, in light of Dr. Morwitz’s expert testimony, does not show that “charg
ing for frequentflyer miles is common knowledge.”
Because this Court finds that the surcharge was not knowable, it is unnecessary
to consider
the second prong of the Marcus test.
ii. Predominance of the common law claims
To state a claim for breach of contract, a plaintiff must allege (1) a contract
between the
parties; (2) a breach of that contract; (3) damages flowing therefrom; and (4)
that the party stating
the claim performed its own contractual obligations. Frederico v. Home Depot,
507 F.3d 188, 203
(3d Cir. 2007). Moreover, “[tjhe party claiming a breach of the covenant of good
faith and fair
dealing ‘must provide evidence sufficient to support a conclusion that the
party alleged to have
acted in bad faith has engaged in some conduct that denied the benefit of the
bargain originally
intended by the parties.” Brunswick Hills Racquet Club, Inc. v. Route 18
Shopping Ctr. Assocs.,
864 A.2d 387, 396 (N.J. 2005) (relying on 23 Williston on Contracts
§ 63:22 (Lord ed. 2002);
Wilson v. Amerada Hess Corp., 773 A.2d 1121 (N.J. 2001); and Sons of Thund
er, Inc. v. Borden,
hic., 690 A.2d 575 (N.J. 1997)). “[Bjad faith normally connotes an ulterio
r motive or sinister
purpose.” McPherson v. Employees ‘Pension Plan ofAm. Re-Insurance
Co., 33 F.3d 253, 256-257
(3d Cir. 1994). “A plaintiff may be entitled to relief under the covenant
if its reasonable
expectations are destroyed when a defendant acts with ill motives and
without any legitimate
purpose.” Brunswick Hills Racquet Club, 864 A.2d at 396 (quoting Wilson
, 773 A.2d at 1130).
Plaintiff argues that these common law contract claims can be proven
with common
evidence because they arise out of a uniform contract. (P1. Br. 11.) (“[W]h
ere the contract at issue
is uniform to all class members, courts often find that common issues predom
inate.”). Here, the
22
terms of the contract between Plaintiff and Defendants are substantially similar
to those entered
between the putative class members and Defendants. (See Docket #146-12; 146-13
; 146-14; 14615.) Moreover, Defendants’ behavior is uniform for all members of the putativ
e class. Whether
Defendants charged a hidden surcharge for frequent-flyer miles is a question that will
be answered
equally for all members of the class. Similarly, whether the class members performed
their own
contractual obligations can be answered with common evidence by looking at Defend
ants’ rental
records. Because Plaintiff’s claim for breach of the covenant of good faith and fair
dealing arises
out of his breach of contract claim, the putative class will be able to prove this claim
with the same
common evidence.
Defendants argue that Plaintiff fails to establish the predominance requirement for these
claims because each member of the class “would have to show that he/she has
the injury-in-fact
that would prove the causation and damages required for the contract-related claims
alleged here.”
(Def. Br. 22.) This Court disagrees. Defendants seem to recast the jurisdictional
challenge they
asserted in their motion for summary judgment as a reason to deny class certific
ation. This Court
has already dismissed this argument. See Schwartz v. Avis Rent a Car Sys.,
LLC, No. 11-4052,
2014 WL 3866476 (D.N.J. Aug. 6, 2014).
3. Superiority
In addition to predominance, Rule 23(b)(3) requires that “a class action [be]
superior to
other available methods for the fair and efficient adjudication of the controversy.”
Fed. R. Civ. P.
23(b)(3). In making its superiority determination, the Court will consid
er four nonexciusive
factors:
(1) the interest of individual members of the class in individually controlling
the prosecution of the action; (2) the extent of litigation commenced
elsewhere by class members; (3) the desirability of concentrating claims in
23
a given forum; and (4) the management difficulties likely to be encountered
in pursuing the class action.
See Fed. R .Civ. P. 23(b)(3); Prudential I, 962 F.Supp. at 522. Considering these factors this
,
Court
concludes that a class action is the superior form of adjudication.
Regarding the first factor, Plaintiff argues that “a class action is the only economically
feasible way for a class members to recover their damages from Defendants[]” becaus
e the
individual damages are “small multiples of $0.75.” (P1. Br. 26.) This Court agrees The
.
cost of
prosecuting these claims individually will outweigh the financial benefit any one plainti
ff would
gain if successful at trail. As such, “the interest of most class members in conducting
separate
lawsuits” is not sufficiently “strong as to require denial of class certification.” Pruden
tial I, 962
F.Supp. at 523.
The second and third factors, though not addressed by either party, do not weigh agains
t
class certification. As far as this Court is aware, there is no litigation commenced elsewh
ere by
class members. Moreover, there is no evidence showing that a different forum has a greater
interest
in this action. Instead, New Jersey has a strong interest in resolving suits arising under
New Jersey
laws.
With respect to the fourth factor, management difficulties “encompass[] the whole range
of practical problems that may render the class action format inappropriate for
a particular suit.”
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164 (1974). “The Court must query not
whether there
will be any manageability problems, but whether reasonably foreseeable difficu
lties render some
other method of adjudication superior to class certification.” Prudential I, 962
F.Supp. at 524-25;
Newberg on Class Actions
§ 4:72 (“{T]he question that courts consider when they analyze
manageability is not whether a class action is manageable in the abstract
but how the problems
that might occur in managing a class suit compare to the problems that would occur
in managing
24
litigation without a class suit.”). Since challenges to the manageability prong of the superiority
requirement often arise when a case involves many individual issues, “the manageability concer
n
often simply echoes the predominance analysis[;] {tjherefore, courts generally hold that if
the
predominance requirement is met, then the manageability requirement is met as well.” Newbe
rg
on Class Actions
§ 4:72; Prudential I, 962 F.Supp. at 525 (finding that plaintiffs alleged “both the
existence and predominance of common issues and demonstrate[d] the superiority of aggregate
adjudication” because plaintiffs established that “they could offer classwide evidence with respec
t
to both liability and damages[.]”).
Defendants argue that adjudicating this suit as a class action will present management
difficulties because “the issues that would have to be decided here are individual, not common
ones, and are not susceptible of class-wide proof.” (Def. Br. 23) (internal quotations omitted). They
contend that Plaintiff’s trial plan reflects these management difficulties. According to Defendants,
the first-stage of the trial plan, which focuses on Defendants’ liability, improperly focuse “solely
s
on Avis’s conduct, which directly conflicts with Third Circuit teaching.” (id. at 24) (citing Marcu
s,
687 F.3d at 607). They further argue that the second and third stage improperly relies on an
“aggregate’ or ‘class-wide’ damages model as a proxy for proving the ‘harm’ element of class
members’ claims” in lieu of determining whether each class member has a valid claim. (Id.
at 25.)
This is insufficient to show that managing this case as a class action is not the superior
method of adjudication. As explained above, Defendants’ first argument is without merit becaus
e
their reliance on Marcus is misplaced. The Third Circuit in Marcus did not reject the Distric
t
Court’s conclusion that “a causal relationship between an alleged unlawful practic
e and a
consumer’s ascertainable loss may be presumed... when a defendant is alleged to have
omitted.
material information.
.
.
and when a defendant’s marketing statements do not differ from one
25
consumer to another[.J”Marcus, 687 f.3d at 607. Rather, the Circuit Court explain
ed that the
District Court failed to make the necessary findings of fact to justify this conclu
sion. Id. It reasoned
that “before applying a ‘presumption of causation’ to an NJCFA claim,
a court must consider not
only the defendants’ course of conduct, but also that of the plaintiffs[,j [s]peci
fically.
.
.
whether
plaintiffs could have known the truth underlying the defendant’s fraud.”
Id. Unlike the district
court in Marcus, this Court held that Defendants’ “knowing omission” was not
knowable. As such,
individual issues related to causation do not predominate over common
ones.
Defendants’ interpretation of the second and third stages of the trial plan is
also misplaced.
Plaintiff is not attempting to prove harm by using an “aggregate” or “classwide” damages model.
Instead, he is proposing to calculate damages by using Defendants’ data on how
many people paid
the $0.75 surcharge per day.
Moreover, both of Defendants’ arguments fail to consider the difficulties
of trying this
dispute without a class action. As mentioned above, it would be very difficu
lt for each plaintiff to
litigate his or her dispute with Avis individually because the recoverable
amount of damages are
likely marginal. Accordingly, this Court finds that Plaintiff has satisfie
d the predominance
requirement of Rule 23.
4. Typicality
Rule 23 also requires that “the claims or defenses of the representative
parties are typical
of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). This require
ment “is said to limit
the class claims to those fairly encompassed by the named plaintiffs
claims.” General Tel. Co. v..
EEOC, 446 U.S. 318, 330 (1980). “Typicality lies where there is
a strong similarity of legal
theories or where the claims of the class representatives and the class
members arise from the same
alleged course of conduct by the defendant.” Prudential I, 962 F.Supp
. at 518 (citations omitted).
26
In addition, “factual differences between the claims of the putative class memb
ers do not defeat
certification.” Prudential II, 148 F.3d at 311 (quoting Baby Neal, 43 F.3d
at 56).
Here, Plaintiff has shown that the legal and factual issues that he asserts
in his claims are
very similar to those of the class. However, Defendants argue that “Plaintiffs
claims are not typical
of those of the class he purports to represent” because Plaintiff did not suffer
an injury-in-fact and,
therefore, does not have Article 111 standing. (Def. Br. 27-28.) Again, this
Court has already held
that Plaintiff did suffer an injury-in-fact when it denied Defendants’
motion for summary
judgment. See Schwartz, No. 11-4052, 2014 WL 3866476. As such,
Defendants’ argument is
unpersuasive.
5. Adequacy of Representation
Rule 23(a)(4) requires that “the representative parties [must] fairly and adequa
tely protect
the interests of the class.” Fed. R. Civ. P. 23(a)(4). Courts look at two factors
: “(1) the plaintiffs
attorney must be qualified, experienced, and generally able to conduct
the proposed litigation, and
(2) the plaintiffmust not have interests antagonistic to those ofthe class.” Pruden
tial 1, 962 F.Supp.
at 519. A party challenging the Class’ representation has the burden to
prove that
the representation
is not adequate. Id.; Varacallo, 226 F.R.D. at 233.
Defendants neither question Plaintiffs attorneys’ qualifications nor
argue that Plaintiffs
interests are antagonistic to those of the class. Instead, they suggest that
Plaintiff and his counsel
“may not” satisfy the adequacy requirement because it is unclear how
Plaintiff learned that he was
charged for the frequent flyer miles. (Def. Br. 29.) They imply that Plainti
ffs counsel told Plaintiff
about his possible claim against Avis. (Id.) However, Defendants
do not offer any evidence in
support of this claim. As such, they fail to prove that the representation
is not adequate.
27
IV.
CONCLUSION
Based on the reasons set forth above, Defendants’ motion to exclude
Plaintiffs expert
testimony [CM/ECF No. 149] is denied. Plaintiff’s motion to certify
[CM!ECF No. 146.] is
granted.
An appropriate Order accompanies this Opinion.
—Th
JoeJr. Linares
Uilited States District Judge
Dated: August, 2014
28
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