In re Checking Account Overdraft Litigation

286 F.R.D. 645, 2012 WL 3265093
CourtDistrict Court, S.D. Florida
DecidedAugust 10, 2012
DocketNo. 1:09-MD-02036-JLK; MDL No. 2036
StatusPublished
Cited by20 cases

This text of 286 F.R.D. 645 (In re Checking Account Overdraft Litigation) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Checking Account Overdraft Litigation, 286 F.R.D. 645, 2012 WL 3265093 (S.D. Fla. 2012).

Opinion

ORDER AND OPINION GRANTING CLASS CERTIFICATION

JAMES LAWRENCE KING, District Judge.

THIS CAUSE is before the Court on Plaintiffs Delphia Simmons and Patricia Mattlage’s (“Plaintiffs”) Motion For Class Certification (DE #2384) (the “Motion”), filed January 6, 2012. The Court has carefully considered the Motion, Comerica’s Opposition (DE #2490), and Plaintiffs’ Reply (DE # 2583), as well as the parties’ voluminous evidentiary submissions and the oral argument of counsel. As announced at the hearing on this matter on July 18, 2012, and for the reasons set forth below, the Court grants the Motion.

I. FACTUAL ALLEGATIONS1

Defendant Comerica Bank (“Comerica”) is a financial services company headquartered in Dallas, Texas that provides checking and debit card services to individual customers through approximately 550,000 consumer accounts in the United States and maintains approximately 443 banking centers in several states. {See Amended Compl. ¶¶ 15-18, DE # 990.) Plaintiffs are current and former Comerica customers who allege that Comerica employed specially designed software programs in a systematic scheme to extract the greatest possible number of overdraft fees from Plaintiffs and similarly situated Comerica customers across the country. {Id. ¶ 34.) Comerica allegedly collected millions of dollars in excessive overdraft fees as a result of this systematic scheme, much of it, according to Plaintiffs, from Comerica’s most vulnerable customers. {Id. ¶ 87.)

To carry out this scheme, Plaintiffs allege that Comerica manipulated debit card transactions by, among other things, employing a bookkeeping device to re-sequence the transactions from highest-to-lowest dollar amount at the time of posting. {Id. ¶ 24.) Plaintiffs allege that these account manipulations, which Comerica deponents testified were applied in the same manner to all class members as a result of Comerica’s standardized computer software, caused funds in customer accounts to be depleted more rapidly, resulting in more overdrafts and, consequently, more overdraft fees. {See Motion, at 10-12 (citing Deposition of Matthew Wind, Ex. 1 of Appendix III to the Motion).) Plaintiffs further allege that, in many instances, overdraft fees were levied at times when, but for Comerica’s manipulation, there would have been sufficient funds in the consumers’ accounts. (Motion, at 14-25.) Plaintiffs allege that Comerica did not fairly disclose its manipulations, took active steps to keep them secret, and engaged in these manipulations despite recognizing that it harmed its own customers. {Id. at 25-32.) Comerica disputes that it manipulated account transactions in a manner inconsistent with its deposit agreements and that it committed any violations of law. (Opposition, at 1-8.)

II. CLASS CERTIFICATION STANDARDS

Questions concerning class certification are left to the sound discretion of the district court, and the Court must undertake a rigorous analysis to insure that the Rule 23 prerequisites are met. Klay v. Humana, Inc., 382 F.3d 1241, 1251 (11th Cir.2004). In making the decision, the Court does not determine whether plaintiffs will ultimately prevail on the merits, but it may consider the factual record in deciding whether the requirements of Rule 23 are satisfied. Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188 n. 15 (11th Cir.2003).

Courts “formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case.” Waste Mgmt. Holdings v. Mowbray, 208 F.3d 288, 298 (1st Cir.2000). In other words, the [650]*650Court undertakes “an analysis of the issues and the nature of required proof at trial to determine whether the matters in dispute and the nature of plaintiffs’ proofs are principally individual in nature or are susceptible of common proof equally applicable to all class members.” In re Cardizem CD Antitrust Litig., 200 F.R.D. 326, 334 (E.D.Mich. 2001) (quoting Little Caesar Enters., Inc. v. Smith, 172 F.R.D. 236, 241 (E.D.Mich.1997)).

Rule 23(a) states that a class may be certified “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.” Fed.R.Civ.P. 23(a). If the court finds that the class criteria of Rule 23(a) are satisfied, it then must also find that the class fits within one of the three categories of class actions defined in Rule 23(b).

III. DISCUSSION

A. The Class Definition

Before considering the requirements of Rule 23, the Court must determine whether a class exists that can adequately be defined. Singer v. AT & T Corp., 185 F.R.D. 681, 685 (S.D.Fla.1998) (citing DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.1970)). “While the definition of the class must not be vague or difficult to apply, the implicit definition requirement does not require an overly strict degree of certainty and is to be liberally applied.” Id. Plaintiffs’ proposed class consists of:

All Comerica Bank customers in the United States who had or have one or more customer accounts and who, from the applicable statutes of limitation through August 15, 2010, (the “Class Period”), incurred one or more overdraft fees as a result of Comerica’s practice of sequencing debit card transactions from highest to lowest.2

(Motion, at 1.) Plaintiffs also seek the certification of subclasses for specific claims as set forth in Plaintiffs’ Proposed Trial Plan for Trial of Class Claims (the “Trial Plan”) (DE #2387). These subclasses are discussed below.

Comerica argues that the proposed class definition does not satisfy the requirements of Rule 23 because it lacks objective criteria to determine class membership, requires a merits determination, and is defined by reference to the applicable statutes of limitation.3 (Opposition, at 29-34.) The crux of Comerica’s argument is that Plaintiffs have not identified a baseline posting order for comparison purposes such that the class is not ascertainable. (Id. at 30-33.) The Court finds this argument unpersuasive.

The evidence demonstrates that class members can be identified from Comeriea’s own records. Plaintiffs propose to have their expert, Mr. Arthur Olsen, mine Comerica’s data to determine who the members of the class are. (See Declaration of Arthur Olsen (“Olsen Deck”), ¶¶ 37-52, Appendix IV to Motion.) More specifically, Mr. Olsen will compare high-to-low sequencing (which yields the greatest number of overdraft fees) to low-to-high sequencing (which yields the lowest number of overdraft fees), which will define the outer parameters of the membership of the proposed class.4

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Bluebook (online)
286 F.R.D. 645, 2012 WL 3265093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-checking-account-overdraft-litigation-flsd-2012.