Juan Torres v. S.G.E. Management, L.L.C., e

805 F.3d 145, 92 Fed. R. Serv. 3d 1687, 2015 U.S. App. LEXIS 17974, 2015 WL 6118738
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 16, 2015
Docket14-20128
StatusPublished
Cited by1 cases

This text of 805 F.3d 145 (Juan Torres v. S.G.E. Management, L.L.C., e) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Juan Torres v. S.G.E. Management, L.L.C., e, 805 F.3d 145, 92 Fed. R. Serv. 3d 1687, 2015 U.S. App. LEXIS 17974, 2015 WL 6118738 (5th Cir. 2015).

Opinions

E. GRADY JOLLY, Circuit Judge:

Stream Energy, its marketing arm Ignite, and a number of other defendants (collectively, the “Defendants”) appeal the district court’s order certifying a class of some 150,000 plaintiffs (the “Plaintiffs”) in this civil action brought under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68. The Plaintiff investors are Independent Associates in Ignite’s multi-level marketing program, who are claiming to be victims of an illegal pyramid scheme. Specifically, the Plaintiffs claim that the Defendants induced the Plaintiffs to participate in the scheme by misrepresenting that Ignite is a legitimate business opportunity, causing them to suffer monetary losses.

The Defendants argue both that Ignite is not an illegal pyramid scheme and, more significantly relevant here, that class certification is inappropriate because individualized questions of reliance and knowledge predominate over any common issues, defeating class certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure. The district court rejected the Defendants’ argument and certified the case as a class action. This Court granted the Defendants leave to file this interlocutory appeal under Federal Rule of Civil Procedure 23(f). After full briefing and argument, we VACATE the district court’s [147]*147class certification order and REMAND the case for the entry of a proper order not inconsistent with this opinion and for such further proceedings as may be appropriate.

I.

Stream Energy began in 2004 as a venture to provide energy services in deregulated energy markets. Stream does not own energy infrastructure. Instead, it resells gas and electricity that it buys from other utilities. According to Stream, it can provide consumers with cheaper services through this arrangement. Stream began its operations in Texas after it received approval from the Texas Public Utility Commission in 2005. Beginning in 2008, Stream sought to expand beyond Texas, and it has expanded operations to other states, including Georgia, Maryland, New Jersey, New York, and Pennsylvania. According to Stream, it has over one million energy customers, and it has sold billions of dollars in electricity and natural gas. It claims that the vast majority of its revenues come from energy sales, not from the profits it receives from its multi-level marketing system.

This appeal, however, primarily involves Ignite and its multi-level marketing venture designed to promote Stream’s energy services to consumers.1 To participate in Ignite’s marketing program, a willing individual pays a fee, typically $329, and may also pay an additional, but optional, monthly fee for an Ignite-based website, or “homesite,” to promote his or her Ignite marketing efforts. In return, the individual becomes an “Independent Associate,” or “IA,” within the Ignite program and receives marketing materials along with opportunities to attend training sessions hosted by Ignite executives and other successful IAs. The IAs may then recruit potential energy customers for Stream as well as additional IAs to join the Ignite program.

Ignite compensates IAs in three primary ways. First, as the Defendants emphasize, IAs receive a monthly commission based on the number of customers they have recruited to purchase energy from Stream. Ignite calls this income Residual Income or. Monthly Energy Income (“MEI”). Second, IAs receive compensation for recruiting other IAs into Ignite, which Ignite calls Leadership Income. Finally, Ignite also compensates IAs for completing an initial recruitment of energy customers and IAs in a prompt manner. Ignite has developed a “3 & 10” model, through which a new IA recruits three new IAs and ten new customers. By meeting various targets, an IA is entitled to receive various payments of what Ignite calls Quick Start Income.

An IA’s success depends primarily on recruiting a “downline” of other IAs who, in turn, recruit other IAs and customers into the Ignite program. As an IA recruits more IAs into the Ignite program, the IA proceeds up an Ignite ladder of leadership positions. All IAs start out as Directors, the lowest level of the Ignite leadership. By recruiting more IAs, the IA can move up three additional leadership levels, to Managing Director, then to Senior Director, and finally to Executive Director. By building a downline, the IA also receives MEI for the customers whom the downline IAs recruit to join Stream, along with bonuses for recruiting additional IAs. As Ignite touts in its marketing [148]*148materials, “the power of Ignite’s Leadership Income plan is that these bonuses are paid not just to five levels, but on every level to unlimited depth. That’s geometric growth to infinity!”

For its top recruiters, Ignite also developed a “Presidential Director” level. Presidential Directors received luxury cars and other perks from Ignite. Many of these individuals promoted the opportunities of the Ignite program at events across the country.

Ignite has promoted its multi-level marketing program through many forms of media. Ignite developed a magazine called Empower, which featured profiles of the most successful IAs along with other stories encouraging, prospective IAs to join Ignite. Presidential Directors promoted Ignite through presentations fir IAs and prospective IAs. For example, Presley Swagerty, known as the “Coach,” and Randy Hedge, known as the “Cowboy,” were particularly prolific in promoting Ignite through videos, presentations, and conference calls. Ignite also produced a series of videos and presentations explaining the basic structure of the program, and IAs were encouraged to show these presentations to prospective IAs to inform them about the program.

In addition to its own promotional activities, Ignite drew attention from a number of outside media sources. The Plaintiffs allege that, as early as 2005, the Dallas Morning News published a story on Ignite that included a quote from a marketing professor suggesting that Ignite was a pyramid scheme. In years following, the Dallas Morning News, the Atlanta Jour-nalr-Constitwtion, and other media outlets began to feature stories indicating that Ignite may be a pyramid scheme. Indeed, IAs reported to Ignite executives and the Presidential Directors that many prospective IAs asked them to address rumors that Ignite was an illegal pyramid scheme.

Although the parties appear to dispute the numbers, the clear majority of IAs have lost money as a result of participating in Ignite. In contrast, a small number of individuals have made significant sums of money.

This suit was brought by former IAs Juan Ramon Torres and Eugene Robison, who allege that Stream, Ignite, and various individual defendants have violated RICO. They have sought to certify a class consisting of those IAs who have lost money as a result of participating in Ignite’s program. The district court granted the Plaintiffs’ motion and certified a class.2 In its certification order, the district court considered whether the Plaintiffs could establish the proximate cause element of their RICO claim through common evidence of reliance. The district court concluded that the.

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805 F.3d 145, 92 Fed. R. Serv. 3d 1687, 2015 U.S. App. LEXIS 17974, 2015 WL 6118738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/juan-torres-v-sge-management-llc-e-ca5-2015.