MENDEZ v. AVIS BUDGET GROUP, INC. et al

Filing 242

OPINION. Signed by Chief Judge Jose L. Linares on 11/16/2017. (ek)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY
JOSE MENDEZ, individually and on behalfof
all others similarly situated,

Civil Action No.: 11-6537 (JLL)
OPINION

Plaintiff,
V.

AVIS BUDGET GROUP, ESIC., et al.,
Defendants.

LINARES, Chief District Judge.
This matter comes before the Court by way of Plaintiff Jose Mendez’s Renewed Motion
for Class Certification. (ECF No. 226). Defendants Avis Budget Group, Inc., Avis Rent A Car
System, LLC, and Highway Toll Administration, LLC have submitted Opposition (ECF No. 230),
to which Plaintiff has replied. (ECF No. 237). The Court decides this matter without oral argument
pursuant to Rule 7$ of the federal Rules of Civil Procedure. For the reasons set forth below, the
Court grants Plaintiffs Motion for Class Certification.
I.

BACKGROUND’

The Court presumes the parties are familiar with the factual background and the allegations

asserted in Plaintiffs Complaint (ECF No. 1) based on the parties’ own involvement in this case
as well as this Court’s Opinions dated April 10, 2012, May 31, 2012, and June 21, 2017. (ECF
Nos. 30, 43, 222). Accordingly, the Court will set forth the relevant factual and procedural

‘This background is derived from Plaintiffs Complaint (ECF No. 1 (“Compi.”)) as well as the record submitted by
all parties in support of their respective position with regards to class certification. (ECF Nos. 226-227, 232-233).

background.
On November 7, 2011, Plaintiff brought this putative class action on behalf of himself as
well as others who are similarly situated. (ECF No. 1). The action seeks to recover damages for
all people who rented vehicles from Defendants that were equipped with, and charged for use of,
an electronic system to pay tolls known as “e-Toll” from locations and websites that were owned
by, operated by, or connected to Defendants Avis Budget Group, Inc., and Avis Rent A Car
System, LLC (“Avis Entities”). (Id.). Defendant Highway Toll Administration, LLC (“HTA”)
was the vendor for the Avis Entities that supplied and administered the e-Toll toll collection
service. (Id.).
Plaintiff alleges that before, during, and afier his rental of a vehicle from the Avis Entities,
he was not advised that the vehicle: 1) could be equipped with an e-Toll device; and 2) was indeed
pre-enrolled and activated for e-Toll. (Id.). Plaintiff further alleges that he was not informed that
when he rented a vehicle from the Avis Entities that was equipped with an e-Toll device, that he
would be obligated to pay more than the actual toll charge incurred and be charged at a nondiscounted rate. (Id.). Specifically, Plaintiff, who is a New Jersey citizen, asserts that when he
drove a vehicle that he rented from the Avis Entities through a toll lane in Florida around August
2011: 1) the e-Toll system in the vehicle was triggered; and 2) his credit card was charged soon
thereafier for $15.75, representing a $0.75 toll charge and a $15.00 e-Toll convenience fee, even
though he was told by an Avis Entities agent when he returned the vehicle that he had incurred no
additional charges. (Id.).
After the Court denied Defendants’ Motion to Dismiss, the parties engaged in a lengthy
period of discovery. While some discovery remains incomplete, the parties agree that the record

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has been sufficiently developed as to allow this Court to detennine whether the class should be
certified. (ECF No. 228 (“P1. Mov. Br.”) at 3-4). There is no dispute that the relationship between
the parties is governed by the Avis Entities rental contract. (ECF No. 38

¶ 60). Said contract

consists of three standardized forms: 1) the “Rental Jacket;” 2) the “Rental Document;” and 3) the
“Return Receipt.” (See ECF No. 226-5, Ex. 14). One term of the contract required renters to pay
for their own tolls. (Id.). The reference to the e-Toll service fee and toll upcharges were restricted
to collections situations. (Id.). The contract did not explain that e-Toll was an optional product
and Defendants did not associate this service with their other optional services. (Id.).
The Rental Jacket discussed automatic toll payment, but did not reference e-Toll. (Id.).
This discussion of automatic tolls was the only place throughout the contract that automatic toll
payments were mentioned. (See ECF No. 226-9, Ex. 34). Additionally, the contract failed to
explain, in any clear terms, that e-Toll was an optional service, nor did it explain that renters would
incur e-Toll charges in excess of the actual toll charges. (See ECF No. 226-5, Ex. 14).
e-Toll was first referenced by Defendants in february 2011. (See ECF No. 226-6, Ex. 19).
Therein, however, the e-Toll language was located in the “Collections” portion of the contract.
(Id.). Rather than explain the e-Toll system, the language focused on what would happen if the
renter failed to pay “all amounts due to” the Avis Entities, including, but not limited to e-Toll
charges and related fees. (Id.). This language was the same throughout the proposed class period.
This language was also contained in the Avis Entities’ “Preferred” or “Fastbreak” programs, which
allow a renter to bypass the rental counter. (ECF No. 226-9, Ex. 35).
The Rental Document was also devoid of any reference to e-Toll, while the Return Receipt
merely advised renters, only after they had returned the vehicles, that the Avis Entities had a

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contractual right to collect e-Toll-related charges. (See ECF Nos. 226-4, 5, Exs. 12, 15). The
Rental Document was also a standardized document that explained various optional products that
the renter could have added on or declined. (ECF No. 22 6-5, Ex. 15). However, e-Toll was not
listed among said optional products. The Return Receipt was a document that the Avis Entities
provided to the renter when the rented vehicle was returned, and therefore, did not apprise the
renter of any information contained therein when the renter decided to rent a vehicle from the Avis
Entities. (ECF No. 226-4, Ex. 12).
Hence, Plaintiff brought this suit on behalf of himself, and others similarly situated
asserting the following causes of action: Count I

—

Breach of Contract; Count II

New Jersey’s Consumer Fraud Act (“NJCfA”); Count III
Avis Entities; Count IV

—

Unjust Enrichment; Count V

—

—

—

Violation of

Injunctive Relief Against Defendant

Breach of the Implied Covenant of Good

faith and Fair Dealing; and Count VI Request for Declaratory Relief Pursuant to the Declaratory
—

Judgment Act. (See ECF No. 1). The allegations supporting these causes of action are all the
same. (Id.). That is, Plaintiff asserts that he, and those who are similarly situated, were charged
fees that they were never told they were subject to, without notice, and unfairly. (Id.).
Discovery has since shown that Defendants maintained electronic records of each and
every rental transaction and toll they have processed since e-Toll became effective. (See ECF No.
226-2, Ex. 1). Those records have been produced, in part, to Plaintiff and show that Defendants
engaged in approximately 17.9 million rental transactions from January 1, 2007 through December
31, 2014, with more transactions likely to be included because the data does not account for the
year of 2015.

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Additionally, discovery showed that the relationship between Defendants HTA and the
Avis Entities was governed by a separate agreement that fully detailed the fees renters would be
subject to should they use the e-Toll. (ECF No. 227-3, Ex. 13). Moreover, since the first e-Toll
device was placed in the Avis Entities’ vehicles, the Avis Entities were required to place e-Toll
fee disclosures in the Avis Entities’ standard contracts. (Id.).

Discovery also revealed that

Defendant HTA made repeated requests of the Avis Entities to include e-Toll information in their
standard contracts, but that said requests were ignored. (Id.). Specifically, in August 2007,
Defendant HTA requested that the Avis Entities make a more detailed e-Toll disclosure. (ECF
No. 226-7, Ex. 24). The Avis Entities responded by noting that their standard contract included
the following statement in the “Rental Charges” paragraph: “If you use a car with automatic toll
payment capability you will pay for all tolls incurred during your rental and all related service
charges.” (Id.). The Avis Entities explained that the reason for the short disclosure was that the
standard contract did not have room for additional verbiage. (Id.). Additionally, the Avis Entities
advised Defendant HTA that they were aware of only two complaints relating to the lack of
disclosure, but did not believe this would be an ongoing problem. (Id.). e-Toll was initially never
referenced by name in the standard contract, and only referred to later in the “Collections” section
of the contract. (ECF No. 226-7, Ex. 26). The initial omission of, and the later vague reference
to, e-Toll and the associated fees was a matter of concern for Defendant HTA. (ECF No. 226-7,
Ex. 27).
Hence, Plaintiff, based on these omissions, as well as the late vague disclosure, seeks to
certify the following nationwide class (“Nationwide Class”): “All [United States] residents who
(1) rented an Avis or Budget vehicle in the [United States] during the Class Period[, which runs

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from April 1, 2007 through December 31, 2015,]2 and, (2) in connection with that rental, paid Avis
or Budget or their agent [Defendant] HTA for their use of e-Toll.” (P1. Mov. Br. at 2). “Plaintiff
and the Nationwide Class will assert that [the Avis Entities] breached” the rental contract with the
Class Members. (Id.). Plaintiff also proposes two subclasses: one on behalf of Florida residents
(“Florida Subclass”) and one on behalf of New Jersey residents (“New Jersey Subclass”). (Id.).
Plaintiff proposes that the Florida Subclass be defined as: “All [United States] residents, who (1)
rented an Avis or Budget vehicle [in the State of] Florida during the Class Period, and (2) in
connection with that rental, paid Avis or Budget or their agent [Defendant] HTA for their use of
e-Toll.” (Id). “Should the fact finder determine that [the Avis Entities] did not breach an express
term of the [rental contract], Plaintiff and the Florida Subclass alternatively will assert a claim that
tthe Avis Entities] breach the implied covenant of good faith and fair dealing.” (Id). finally,
Plaintiff proposes that the New Jersey Subclass be defined as: “All New Jersey residents who, (1)
rented an Avis or Budget vehicle in the [United States] during the Class Period, and (2) in
connection with that rental, paid Avis or Budget or their agent [Defendant] HTA for their use of
e-Toll.” (Id.). “Plaintiff and the New Jersey Subclass will also assert claims for unjust enrichment
against [Defendant] HTA, and for violations of the NJCFA against [the Avis Entities] and
[Defendant] HTA.” (Id.).
II.

LEGAL STANDARD

“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 Litig., 552 F.3d

2

The defined class period contained herein is the same suggested class period for the two proposed subclasses
discussed infra. Accordingly, for purposes of brevity the Court shall refer to this period as the “Class Period” from
hereon forward.

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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 those being numerosity, commonality, typicality, and adequacy as well as
—

—

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.
In analyzing whether Rule 23’s 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.” 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. Additionally, if
there is any doubt as to whether the Rule 23 requirements have been met, certification should be
denied, regardless of the area of substantive law. Id. at 321 (discussing the Rule 23 2003
Amendments).
Rule 23(b)(3) requires a finding “that the questions of law or fact common to the class
members predominate over any questions affecting only individual members [(predominance)],
and that a class action is superior to other available methods for fairly and efficiently adjudicating
the controversy [(superiority)].” Fed. R. Civ. P. 23(b)(3); see also Hydrogen Peroxide, 552 f.3d
at 310. “Because the nature of the evidence that will suffice to resolve a question determines
whether the question is common or individual, a district court must formulate some prediction as
to how specific issues will play out [at trial] in order to determine whether common or individual
issues predominate in a given case.” Hydrogen Peroxide, 552 F.3d at 311 (citations and quotations
omitted). “If proof of the essential elements of the cause of action requires individual treatment,
then class certification is unsuitable.” Id. (quoting Newton v. Merrill Lynch, Pierce, fenner &

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Smith, Inc., 259 f.3d 154, 172 (3d Cir. 2001)). Therefore, in addition to the four requirements

of Rule 23(a), Plaintiffs in this case bear the burden of establishing that common issues of fact and
law predominate and that a class action is superior.
III.

ANALYSIS

The Court finds that class certification is appropriate in this case, as the record shows that
all the requisite elements for class certification have been met here.
A. 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).

Notwithstanding, “impracticability’ does not mean ‘impossibility.” In re Lucent Techs., Inc. Sec.
Litig. (“LucentT’), 307 F. $upp. 2d 633, 640 (D.N.J. 2004). “To 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.” In re Prudential Ins. Co. of Am. Sales Practices
Litig., (“Prudential T’), 962 F. Supp. 450, 510 (D.N.J. 1997), aff’d, 148 F.3d 283 (3d Cir.
1998) (“Prudential IT’), cert. denied, 525 U.S. 1114 (1999) (citing Lerch v. Citizens first

Bancorp, Inc., 144 F.R.D. 247, 250 (D.N.J. 1992)).
When dealing with a large class, that numbers in the hundreds, joinder will be
impracticable. Id. (quoting 1 Herbert Newberg & Alba Conte, Newberg on Class Actions
(“Newberg”)

§ 3.05, at 3-25) (stating that even a number less than one hundred will usually satisfy

the numerosity requirement of Rule 23(a)(1)). Additionally, the Third Circuit that “generally if
the named plaintiff demonstrates that the potential number of plaintiff exceeds 40, the first prong
of Rule 23(a) has been met.” Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001). Here,

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joinder of all Class Members is impracticable because there are nearly 18,000,000 Class
Members. Accordingly, Rule 23(a)(1) is satisfied.
B. 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 tests. Prudential I, 962 F.
Supp. at 510 (citing 1 Newberg

§ 3.13, at 3-71). This approach has been approved by the Third

Circuit. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 528 (3d Cir. 2004) (“the 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)); Georgine v. Amchem Prods., 83 f.3d 610, 626 (3d Cir. 1996).
Another prerequisite to a class action is that “there are questions of law or fact common to
the class.” fed. R. Civ. P. 23(a)(2). “This requirement is satisfied ‘if the named plaintiffs share
at least one question of fact or law with the grievances of the prospective class.” Prudential 1, 962
F. Supp. at 510 (quoting Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994) (citation omitted)).
Here, the commonality requirement is met because there are many common questions, including
the following that are listed in the Complaint:
a. Whether Defendants failed to disclose to Plaintiff and Class Members
in Avis Budget’s Rental Agreement that renting an Avis Budget rental
vehicle enabled with the automated toll-payment service would trigger
fees of $2.50 per rental day and up to $10 per week;
b. Whether Defendants omitted and/or concealed material facts from
Plaintiff and the Class regarding whether the vehicle they rented was
pre-enrolled and activated for e-Toll;
c. Whether Defendants failed to disclose to Plaintiff and Class Members
in the uniform Rental Agreement that they would be obligated to pay e
Toll fees regardless of whether they used c-Toll;

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d. Whether Defendants failed to disclose to Plaintiff and Class Members
in Rental Agreements that they would be obligated to pay more than the
actual toll charge incurred and would instead pay the non-discounted
rate;
e. Whether Defendants have a contractual right to impose and collect e
Toll fees;
f. Whether Defendants’ acts and practices constitute a breach of contract;
g. Whether Defendants’ nondisclosure of e-Toll fees violated the NJCFA;
h. Whether the facts that Defendants fail to disclose about their e-Toll fees
are material;
i. Whether Plaintiff and the Class members are entitled to damages, and if
so, what is the proper measure of damages;
j. Whether Plaintiff and the Class are entitled to equitable relief, including
injunctive relief, to prohibit the reoccurrence of this conduct; and
k. Whether, by the misconduct set forth in [the] Complaint, Defendants
have engaged in unfair or unlawful business practices with respect the
[sic] e-Toll fees imposed.
(Compl.

¶J 49(a)-(k)).

For a class that is certified under Rule 23(b)(3), which is what Plaintiff is seeking here, the
Court must find that these common questions predominate over individual issues. Prudential I,
962 F. Supp. at 510-11. “To evaluate predominance, the Court must determine whether the
efficiencies gained by class resolution of the common issues are outweighed by individual issues
presented for adjudication.” Id. at 511 (citing 1 Newberg

§

4.25, at 4-81 to 4-86). Courts have

readily held that even a few common issues can satisfy this requirement where their resolution will
significantly advance the litigation. Id. (gathering authority). For example, in cases where it is
alleged that the defendant made similar misrepresentations, non-disclosures, or engaged in a
common course of conduct, courts have found that said conduct satisfies the commonality and
predominance requirements. Id. (gathering authority). Predominance has been found to not be
met in cases that “required individualized proof of ‘highly case-specific factual issues.” Elldns v.
Equitable Life Ins. Co., 1998 U.S. Dist. LEXIS 1557, at *49 (M.D. Fla. Jan. 27,

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199$) (quoting Jackson v. Motel 6 Multipurpose,

130 f.3d 999,

1004-05 (11th Cir.

1997) (involving whether Motel 6 had a practice or policy of racial discrimination)).
Many Courts, including this Court, have found predominance in cases that are factually
similar to this matter. See, e.g., Doherty v. Hertz Corp., 2014 U.S. Dist. LEXIS 86792 (D.N.J.
June 25, 2014). In Doherty, the Court held that the commonality and predominance requirements
of Rule 23 were met when the class members paid an electronic tolling fee and toll upcharges
which were alleged to be insufficiently disclosed in the rental agreement. See Doherty, 2014 U.S.
Dist. LEXIS $6792 at * 11. Here, the Court comes to the same conclusion as the common factual
and legal thread is the alleged omission and/or non-disclosure regarding the e-Toll fees and upcharging. Moreover, the Court finds that no “individualized proof of ‘highly case-specific factual
issues” will be required. The Court reaches this conclusion afier review of the allegations in the
Complaint, the claims asserted therein, and the record before this Court, all of which indicate that
the disposition of this case for each Class Member will hinge on whether sufficient disclosures
regarding e-Toll were made.
furthennore, the Court finds that the commonality and predominance requirements are met
with regards to Plaintiff and the New Jersey Subclass’ claims under the NJCFA. “[T]o state a[n
NJ]CFA claim, a plaintiff must allege three elements: (1) unlawful conduct. ..; (2) an ascertainable
loss...; and (3) a causal relationship between the defendants’ unlawful conduct and the plaintiffs
ascertainable loss.” Int’l Union of Operating Eng ‘rs Local No. 68 Welfare fund v. Merck & Co.,
Inc., 192 N.J. 372, 389 (N.J. Sup. Ct. 2007) (internal quotations omitted, alteration in original);
see also Scwartz v. Avis Rent a Car Sys., LLC, 2016 U.S. Dist. LEXIS $0387, *12 (D.N.J. June
21, 2016 (quoting Merck, supra). The Court finds that the aforementioned elements are satisfied

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here insomuch that Plaintiff, as well as the Class Members, allege that Defendants engaged in
unlawful conduct by failing to provide the necessary e-Toll disclosures such that each person was
apprised of the costs relating to same, that the non-disclosure or inadequate disclosure by
Defendants resulted in a, albeit de minimis, concrete and ascertainable loss. Thus, considering the
allegations in the Complaint, as well as the entire record currently before this Court, the Court
finds that the common questions of fact and law predominate over any questions of law or fact
affecting only individual members of the Class.
C. Typicality

Rule 23 requires also 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). In essence, “the typicality
requirement is said to limit the class claims to those fairly encompassed by the named plaintiffs
claims.” Gen. 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). Hence, even where there may be factual differences between the claims
of the class representatives and other class members, it does not rule out a finding of
typicality. Lucentl, 307 F. Supp. 2d at 640 (citing Prudential II, 148 F.3d at 310).
The Court concludes that the typicality requirement of Rule 23 is also met in this case.
This is because the legal theory that underlies Plaintiffs claims is typical of the claims asserted by
the Class Members. Specifically, Plaintiff avers that Defendants breached the rental contract when
they failed to make various e-Toll disclosures, and caused Plaintiff to be subject to the fees and
upcharges he was unaware he would incur. This claim is nearly identical to all the Class Members’
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claims. Defendants argument that the typicality requirement is not met “because, unlike the rest
of the Class Members who allegedly received inadequate disclosures, [Plaintiff] claims to have
received no disclosures at all” is unpersuasive. (ECF No. 234 (“Def. Opp Br.”) at 8-9) (emphasis
in original).3 This is because the common question, as well as the common claim stemming from
said question, which is typical to Plaintiff as well as the Class Members, is whether or not
Defendants properly explained the c-Toll program and the charges associated with it. Indeed, just
as with Doherty, supra, the claims of Plaintiff and the Class Members here arise “out of a common
conduct and a core set of facts surrounding the rental” each person made from the Avis Entities,
the use of the standardized contract, and the resultant payment of e-Toll fees and upcharges.
Doherty, 2014 U.S. Dist. LEXIS 86792 at *12.

Additionally, as discussed above, factual

differences between Plaintiff and the Class Members does not prohibit this Court from finding
typicality. Thus, the Court finds the typicality requirement of Rule 23 satisfied in this case.
D. Adequacy of Representation

As for the adequacy of representation factor, Rule 23(a)(4) requires that “the representative
parties [must] fairly and adequately 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 plaintiff must not have interests
antagonistic to those of the class.” Prudential I, 962 F. Supp. at 519. A party challenging the
Class’ representation has the burden to prove that the representation is not adequate. Id.

Defendants also assert that Plaintiff is atypical because he made his reservation through a third-party. (Def. Opp.
Br. at 9-10) The Court rejects this argument as well for the reasons set forth infra.

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The aforementioned requirements have been met in this case. First, the Court notes that
Class Counsel are more than adequate representatives of this Class. This is clear based on the
personal and law firm resumes submitted in support of this Motion. (See ECF No. 226-8 and 9,
Exs. 32-33). Class Counsel has also demonstrated their diligent and competent representation
throughout this case as it proceeded through discovery. Additionally, the named Plaintiff is an
appropriate Class Representative, as he has no interest which is antagonistic to the rest of the Class
Members and has expressed his willingness to represent them.
The Court rejects Defendants’ argument that Plaintiff is an inadequate Class Representative
simply because he is employed by Class Counsel. (Def. Opp. Br. at 18). According to Defendants,
Plaintiff is inadequate because he “would allow settlement on terms less favorable to the interests
of the absent class members” so that he can be in the “good graces” of Class Counsel. (Id. at 20).
However, as Plaintiff correctly notes, there is no settlement before the Court and therefore the
purported conflict is indeed speculative. See Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d
170, 183 (3d Cir. 2012). Moreover, an existing relationship between a named plaintiff and class
counsel, “in absence of proof that the named plaintifffl would receive a benefit not available to
other class members, is not a basis to find” inadequacy. Elias v. Ungar food Prods., 252 F.R.D.
233, 245 (D.N.J. 2007); see also Stephenson v. Bell Ati. Corp., 177 F.R.D. 276, 286 (D.N.J. 1997).
Here, Defendants make a bare assertion that Plaintiff is an inadequate representative merely
because he is employed by Class Counsel. However, Defendants do not point to a single piece of
evidence whatsoever that would lead this Court to the same conclusion. Therefore, based on the
foregoing, the Court finds that the adequacy requirement of Rule 23 is satisfied.
F. Superiority

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Having found all four requirements of Rule 23(a) satisfied, the Court turns its attention to
Rule 23(b)(3), which 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). The Rule provides
the Court with four non-exclusive factors to aid in its superiority determination:
(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
a given forum; and (4) the management difficulties likely to be encountered
in pursuing the class action.
Prudential I, 962 F. $upp. at 522.
Here, since the financial loss to most of the Class Members is relatively small, very
few individuals, if any, would have an interest or ability to pursue their own individual
case. Along the same thought process, it is unlikely that the individual Class Members
would have the resources to pursue successful litigation on their own, partly because the
cost of litigating separate actions would be far more than the amount each individual Class
Member would recover. Thus, the Court finds that a class action is a superior method of
adjudicating the controversy.
IV.

CONCLUSION

For the aforementioned reasons, Plaintiffs Motion for Class Certification is hereby
granted. An appropriate Order, which includes the above espoused Class definitions, accompanies
this Opinion.

DATED: November

ic017
United States District Court

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