Kaufman v. American Express Travel Related Services Co.

264 F.R.D. 438, 2009 U.S. Dist. LEXIS 119397, 2009 WL 5166229
CourtDistrict Court, N.D. Illinois
DecidedDecember 22, 2009
DocketNo. 07 C 1707
StatusPublished
Cited by5 cases

This text of 264 F.R.D. 438 (Kaufman v. American Express Travel Related Services Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaufman v. American Express Travel Related Services Co., 264 F.R.D. 438, 2009 U.S. Dist. LEXIS 119397, 2009 WL 5166229 (N.D. Ill. 2009).

Opinion

MEMORANDUM OPINION & ORDER

JOAN B. GOTTSCHALL, District Judge.

Plaintiffs (the “Kaufman” plaintiffs) brought this class action against defendant American Express Travel Related Services Company, Inc. (“American Express”), challenging certain fees assessed on American Express-issued gift cards. This matter is presently before the court on Plaintiffs’ Amended Motion for Preliminary Approval of Class Action Settlement and Notice to the Settlement Class (the “Motion”). American Express submitted briefing in support of the Motion.

There are four parallel actions pending in other jurisdictions, each filed after the case before this court: Kazemi, et al. v. Westfield America, Inc., San Diego Superior Court, Case No. 37-2008-00075526-CU-BT-CTL (the “Kazemi” action); Goodman v. American Express Travel Related Services Company, Inc., United States District Court for the Eastern District of New York, No. 08-CV-2299 (the “Goodman" action); Jarratt v. [441]*441American Express Company, Superior Court of the State of California for the County of San Diego, Case No. 37-2009-00082117-CU-BT-CTL (the “Jarratt” action); and Rudd v. American Express Travel Related Services Co., Inc., pending in the United States District Court for the Southern District of California, Case No. 09-CV-930-WQH (RBB) (the “Rudd” action). While the Jarratt and Rudd plaintiffs have signed the proposed settlement agreement, the Goodman and Kazemi plaintiffs have each submitted objections to the Motion.

The court addresses the issues in the Motion and the objections thereto in turn.

I. Background

In their Amended Class Action Complaint, the Kaufman plaintiffs seek damages arising from American Express’ alleged misrepresentations regarding the value of “The American Express Gift Card” (the “Gift Card”). Specifically, the Kaufman plaintiffs allege that American Express falsely represents that the Gift Cards are worth a certain value; can be used “all over the place;” and can be used in combination with another form of payment (in a so called “split-tender” transaction). Each of these representations are false, according to the Kaufman plaintiffs, because American Express charges maintenance fees that whittle down the actual value of the Gift Cards; because the Gift Cards are not actually accepted everywhere, and because many vendors do not allow split-tender transactions, rendering a small balance left on a Gift Card worthless (and susceptible to the above-described fees).

The court denied a motion to compel arbitration in March 2008, and then stayed the case pending American Express’ appeal to the Seventh Circuit. During the pendency of the appeal, American Express and the Kaufman plaintiffs began settlement negotiations pursuant to the Seventh Circuit settlement conference program. These negotiations consisted of three full-day mediation sessions, followed by two more full-day mediation sessions before the Honorable William J. Cahill (Ret.), and resulted in two agreements: a Memorandum of Understanding executed on January 8, 2009, and a Fee Agreement, executed on February 10, 2009. At the parties’ request, the Seventh Circuit granted a limited remand of this case for purposes of potential settlement, after which the Kazemi, Jarratt, Rudd, and Goodman plaintiffs were all allowed to intervene. The parties engaged in limited discovery before agreeing to further mediation. On July 20, 2009, all parties conducted a full-day mediation with the Honorable Abner J. Mikva (Ret.), resulting in a settlement agreement (the “Settlement Agreement”) and subsequent modification (the “Modification”), which was signed by American Express and the Kaufman, Jarratt, and Rudd plaintiffs.

In the Settlement Agreement, the Kaufman, Jarratt, and Rudd plaintiffs seek to represent a class consisting of:

All purchasers, recipients, holders and users of any and all gift cards issued by American Express from January 1, 2002 through the date of preliminary approval of the settlement, including, without limitation, gift cards sold at physical retail locations, via the Internet, or through mall co-branded programs. Notwithstanding the foregoing, ‘Be My Guest’ dining cards are not included within the settlement. [ (the “Class”.) ]

Settlement Agreement, ¶ 3.2, at 10-11. As described within, these plaintiffs agreed in the Settlement Agreement and Modification to settle claims on behalf of the Class in exchange for a $3 million Settlement Fund, from which Class members can make claims, and a maximum of roughly $1.25 million in attorneys’ fees.

On July 27, 2009, the Kaufman plaintiffs filed this Motion and submitted briefing in support of it, as did American Express. The Kazemi and Goodman plaintiffs each object to the Settlement Agreement, primarily alleging that the Settlement Fund is insufficient in comparison to the putative value of Class members’ claims.

II. Class Certification

Before addressing the substantive provisions of the Settlement Agreement, the court must first determine whether the proposed Class can be certified. See, e.g., In re Bromine Antitrust Litig., 203 F.R.D. 403 [442]*442(S.D.Ind.2001).1 For the Class to be certified, the court must find that the Class meets the requirements of Federal Rule of Civil Procedure 23(a) and (b).

A. Rule 23(a)

To be certified, a class must first meet Rule 23(a)’s four prerequisites:

(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).

1. Numerosity

The Class includes “purchasers, recipients, holders and users” of Gift Cards from January 1, 2002 to the present. The parties have not submitted any data on how many class members there might be. However, an American Express representative acknowledged that from January 2002 through September 2008, American Expressed collected monthly service fees on over 14 million Gift Cards. Affidavit of Jerreld S. Paulson (“Paulson Aff.”) ¶ 5. Of these 14 million, approximately 5 million were subject to fees after failed transactions for insufficient funds. These failures are apparently indicative of split-tender transactions. Id. ¶ 7. However, many Gift Card users who experienced failed transactions were later able to use their Gift Cards: only 1.7 million of the 5 million Gift Cards that experienced failed transactions plus fees were unable to subsequently complete a transaction. Id. ¶ 7. Even assuming the Class numbers only 1.7 million persons, the court finds that the Class is sufficiently numerous to satisfy Rule 23(a)(1).

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Cite This Page — Counsel Stack

Bluebook (online)
264 F.R.D. 438, 2009 U.S. Dist. LEXIS 119397, 2009 WL 5166229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaufman-v-american-express-travel-related-services-co-ilnd-2009.