Alsup v. Montgomery Ward & Co.

57 F.R.D. 89, 16 Fed. R. Serv. 2d 1497, 1972 U.S. Dist. LEXIS 11074
CourtDistrict Court, N.D. California
DecidedNovember 17, 1972
DocketNos. C-71-264, C-71-1610
StatusPublished
Cited by27 cases

This text of 57 F.R.D. 89 (Alsup v. Montgomery Ward & Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alsup v. Montgomery Ward & Co., 57 F.R.D. 89, 16 Fed. R. Serv. 2d 1497, 1972 U.S. Dist. LEXIS 11074 (N.D. Cal. 1972).

Opinion

MEMORANDUM OPINION AND ORDER

RENFREW, District Judge.

In two related cases plaintiffs have moved the Court for an order that each may be maintained as a class action. In Alsup et al. v. Montgomery Ward & Company (Alsup), plaintiffs, holders of revolving credit card accounts with defendant, sue on behalf of themselves and approximately 200,000 other credit customers of defendant located in this District. In Mullen et al. v. Montgomery Ward and Company, Incorporated (Mullen), plaintiff, also a holder of a revolving credit card account with defendant, sues on behalf of himself and an estimated 5 to 8 million other credit customers throughout the United States. Plaintiffs charge that defendant made [90]*90an inadequate disclosure of the method used by it in computing finance charges in violation of the Truth in Lending Act of 1968 (Act), 15 U.S.C. § 1601 et seq. and the Federal Reserve Board Regulations, 12 C.F.R. § 226 promulgated thereunder. Specifically plaintiffs claim that defendant led them and other revolving credit card customers to believe that payments on account during the periodic billing cycle would reduce the periodic finance charges, whereas in fact the finance charges for the billing cycle were computed at the beginning of the billing cycle. During portions of the relevant time period defendant’s credit card applications and billing statements stated that finance charges were computed “on the previous month’s ending balance * * * which does not include * * * current month’s charges and credits.” Plaintiffs urge that this language is ambiguous and therefore misleading in that finance charges are in fact computed on one of sixteen different billing cycles rather than on a calendar month and that the word “credit” is not ordinarily understood to include payments. The merits of plaintiffs’ claims are not before the Court and no determination thereon is necessary in order to decide these motions.1 The parties through their respective attorneys of record have submitted to the Court the issue whether the suits may be maintained as class actions based upon the pleadings, motions, memoranda, affidavits, and exhibits filed herein. The Court concludes that neither action may be maintained as a class action.

Before a class action may be maintained under Rule 23 of the Federal Rules of Civil Procedure, plaintiffs must first meet the prerequisites of Rule 23(a):

“(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that join-der of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

The proposed class in each action is so numerous that joinder of all members would be impracticable. It is also obvious from the pleadings that there are questions of law common to each class, and that the claims of the representative parties in each action are typical of the claims of the alleged class. For the purposes of this motion, the Court assumes the ability of plaintiffs in each action fairly and adequately to represent the class, but, in light of the decision of the Court, this issue is not specifically ruled upon.

Once the requirements of Rule 23(a) have been met, a class action must meet at least one of the requirements set forth in Rule 23(b):

“(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be disposi-tive of the interests of the other mem[91]*91bers not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunc-tive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions 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. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”

In Alsup plaintiffs contend that the proposed class qualifies only under subdivision (b)(3). However, in Mullen plaintiff urges that the class qualifies under all three subdivisions. Therefore, it is necessary that each subdivision be analyzed.

While it is undisputed that subdivision (b)(1)(A) was drafted to protect a defendant where different parties were attempting to impose different standards of conduct upon him,2 there is a split in the authorities whether the maintenance of a number of separate actions under the instant facts would subject defendant to inconsistent or varying adjudications.

In Zachary v. Chase Manhattan Bank, 52 F.R.D. 532 (S.D.N.Y.1971), a holder of a “Uni-Card” brought a class action on behalf of himself and all other card holders, charging that the class had been charged interest in excess of that permitted by state law. The Court denied defendant’s motion to disallow the maintenance of the action as a class stating at 534:

“In the event plaintiff is able to satisfy Rule 23(a), plaintiff’s action is maintainable as a class action under Rule 23(b)(1). The prosecution of separate actions by individual members of the class could lead to inconsistent results with respect to other members of the class (Rule 23(b)(1) (A)) since the finance charge exacted by defendant is either legal or it is illegal as to all members. For the same reason, an adjudication with respect to plaintiff would be, as a practical matter, dispositive of the interests of the other class members (Rule 23(b) (1) (B)).”

However, in Ratner v. Chemical Bank, 54 F.R.D.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re First American Corp. Erisa Litigation
258 F.R.D. 610 (C.D. California, 2009)
Corley v. Entergy Corp.
222 F.R.D. 316 (E.D. Texas, 2004)
Pettco Enterprises, Inc. v. White
162 F.R.D. 151 (M.D. Alabama, 1995)
Cambanis v. Nationwide Insurance
501 A.2d 635 (Supreme Court of Pennsylvania, 1985)
Stertz v. Gulf Oil Corp.
95 F.R.D. 116 (E.D. New York, 1982)
Brame v. Ray Bills Finance Corp.
85 F.R.D. 568 (N.D. New York, 1979)
City National Bank & Trust Co. of Oklahoma City v. Owens
1977 OK 86 (Supreme Court of Oklahoma, 1977)
CITY NATL. BANK & TRUST CO. v. Owens
1977 OK 86 (Supreme Court of Oklahoma, 1977)
Chevalier v. Baird Savings Ass'n
72 F.R.D. 140 (E.D. Pennsylvania, 1976)
Marks v. San Francisco Real Estate Board
69 F.R.D. 353 (N.D. California, 1975)
Robertson v. National Basketball Association
389 F. Supp. 867 (S.D. New York, 1975)
Richard Kline v. Coldwell, Banker & Co., Realtors
508 F.2d 226 (Ninth Circuit, 1974)
Arnson v. General Motors Corporation
377 F. Supp. 209 (N.D. Ohio, 1974)
Richardson v. Hamilton International Corp.
62 F.R.D. 413 (E.D. Pennsylvania, 1974)
Young v. Trailwood Lakes, Inc.
61 F.R.D. 666 (E.D. Kentucky, 1974)
Bogosian v. Gulf Oil Corp.
62 F.R.D. 124 (E.D. Pennsylvania, 1973)
McDermott v. Hollander
60 F.R.D. 643 (E.D. Louisiana, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
57 F.R.D. 89, 16 Fed. R. Serv. 2d 1497, 1972 U.S. Dist. LEXIS 11074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alsup-v-montgomery-ward-co-cand-1972.