Freedman v. Arista Records, Inc.

137 F.R.D. 225, 20 Fed. R. Serv. 3d 793, 1991 U.S. Dist. LEXIS 7807, 1991 WL 109976
CourtDistrict Court, E.D. Pennsylvania
DecidedJune 7, 1991
DocketCiv. A. Nos. 90-7542, 91-0716
StatusPublished
Cited by13 cases

This text of 137 F.R.D. 225 (Freedman v. Arista Records, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freedman v. Arista Records, Inc., 137 F.R.D. 225, 20 Fed. R. Serv. 3d 793, 1991 U.S. Dist. LEXIS 7807, 1991 WL 109976 (E.D. Pa. 1991).

Opinion

MEMORANDUM

GILES, District Judge.

Plaintiffs sue Arista Records, Inc. (“Aris-ta”) under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(a), (c) and (d) and for common law fraud, negligent misrepresentation, violation of the state consumer fraud statutes and breach of warranty. They move separately for class certification.

BACKGROUND

Plaintiffs sue Arista for its role in producing and marketing the members of the singing group Milli Vanilli, Fabrice Morvan and Rob Pilatus and their album1 “Girl You Know Its True.” On November 19, 1990 it was revealed that Morvan and Pila-tus did not in fact sing on the album Arista released in their name of which they sold 7,000,000 copies and for which they won a [227]*227Grammy Award on February 21, 1989 for the best new artists category. Plaintiffs claim that because Milli Vanilli won a Grammy Award, their album was sold at a higher price than it would have been if the duo had not won the award.

The purported class for certification is as follows:

All persons in the United States, its territories and possessions who purchased Milli Vanilli recordings prior to November 15, 1990, which purchases were effected by the wrongdoing alleged in plaintiff’s complaint.

The substance of the complaints are that Arista represented fraudulently that Mor-van and Pilatus actually sang the songs on the album and that they won the Grammy Award meritoriously. They sue under RICO, common law fraud, negligent misrepresentation, breach of warranty and violation of state consumer protection laws. As part of their prayer for relief, they request that they receive treble damages under RICO, a declaration of the violation of the state statutes where class members reside and damages allowable under those statutes and injunctive relief.

Plaintiffs move for certification pursuant to Fed.R.Civ.P. 23(a), (b)(2) or (b)(3), which provide:

(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 joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate 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 the class action.

Plaintiffs bear the burden of proving that the class should be certified. Davis v. Romney, 490 F.2d 1360, 1366 (3d Cir.1974). To succeed in their motion for class certification, plaintiffs must meet all three requirements of Rule 23(a) and the requirements of one of either Rule 23(b)(1), (2) or (3). Bogus v. American Speech & Hearing Ass’n, 582 F.2d 277, 289 (3d Cir.1978). In determining whether a class should be certified, the court may not consider the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974), citing Miller v. Mackey International, 452 F.2d 424, 427 (5th Cir.1971).

Plaintiffs argue that all the elements of Rule 23(a) are met, that the injunctive claims mandate certification under Rule 23(b)(2), and that class certification under Rule 23(b)(3) is appropriate.

On the other hand, defendant argues that individual questions of fact and law preclude certification. Stating that nowhere on the outer covering of the album package do the names of Morvan and Pila-tus appear, it avers that plaintiffs have assumed incorrectly that 7,000,000 persons purchased albums because Morvan and Pi-latus were perceived as the actual singers. Defendants submit that individual testimony of each class member would be necessary to determine on what basis he or she made the purchase because the gravamen [228]*228of the complaint is fraud. Essential to the claim of fraud is proof of reliance which may vary greatly among purchasers. Defendant has shown through discovery that some purchasers, having enjoyed the music when heard on the radio, made a determination that they wanted to own the album without knowing anything about the vocalists. Thus, defendant offers that their decision to purchase could not have been based on the perceived fact that Pilatus and Morvan were the persons who sang the songs they enjoyed.

Plaintiffs’ claim of injury does rest on the assertion that the purported purchaser class made their album purchases typically because they believed Pilatus and Morvan personally sang the songs contained therein and won the Grammy Award for their album singing performance.

ANALYSIS

Under Rule 23(a)(1) the proposed class must be so numerous that joinder is not feasible. Here, plaintiffs attempt to have a class certified that includes some 7,000,000 purchasers. While the Rule suggests no number at which joinder is impracticable, it is safe to assume that 7,000,000 people cannot be joined practically to one litigation. Dirks v. Clayton Brokerage Co., 105 F.R.D. 125, 131 (D.Minn.1985); Stavrides v. Mellon Bank N.A., 69 F.R.D. 424, 429 (W.D.Pa.1975).

Subsection (a)(2) requires that there be questions of law and fact common to the class. This requirement is less stringent than that of subsection (b)(3), which requires that common questions of law and fact predominate over those affecting individual class members. McMahon Books, Inc. v. Willow Grove Associates, 108 F.R.D. 32, 35 (E.D.Pa.1985), citing In re School Asbestos, 789 F.2d 996, 1110 (3d Cir.), cert. den., 479 U.S. 915, 107 S.Ct. 318, 93 L.Ed.2d 291 (1986).

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137 F.R.D. 225, 20 Fed. R. Serv. 3d 793, 1991 U.S. Dist. LEXIS 7807, 1991 WL 109976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freedman-v-arista-records-inc-paed-1991.