Larsen v. Union Bank, N.A.

275 F.R.D. 666
District Court, S.D. Florida·Decided July 25, 2011·No. No. 1:09-MD-02036-JLK; MDL No. 2036; S.D. Fla. Case No. 1:09-cv-23235-JLK; N.D. Cal. Case No. 4:09-cv-03250-PJH·Published·Cited by 23 cases

Opinion

ORDER GRANTING CLASS CERTIFICATION

JAMES LAWRENCE KING, District Judge.

THIS CAUSE is before the Court upon the Plaintiffs’ Motion for Class Certification and Incorporated Memorandum of Law (DE # 1387) (“Motion”).1 The Court has carefully considered the Motion, response, reply, and the documents attached to them, as well as Plaintiffs’ voluminous evidentiary submission and the oral argument of counsel. As announced at the hearing on this matter on July 13, 2011, the Court grants the Motion, for the reasons explained more fully below.

I. Factual Allegations

Plaintiffs allege that, through the use of specially designed software programs, Union Bank, N.A. (“Union”) engaged in a systematic scheme to extract the greatest possible number of overdraft fees from Plaintiffs and similarly situated Union consumers across the country. Union allegedly collected millions of dollars in excessive overdraft fees as a result of this systematic scheme, much of it, according to Plaintiffs, from Union’s most vulnerable customers. To carry out this scheme, Plaintiffs allege that Union manipulated debit card transactions by, among other things, employing a bookkeeping trick to re-sequence the transactions from highest-to-lowest dollar amount at the time of posting. Plaintiffs allege that these account manipulations, which Union deponents testified were applied in the same manner to all class members as a result of Union’s standardized computer software, caused funds in customer accounts to be depleted more rapidly, resulting in more overdrafts and, consequently, more overdraft fees. Plaintiffs further allege that, in many instances, overdraft fees were levied at times when, but for Union’s manipulation, there would have been sufficient funds in the consumers’ accounts. Plaintiffs allege that Union 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. Union disputes that it has manipulated account transactions and that it has committed any violations of law.

Plaintiffs move for certification of their claims for breach of contract and the breach of the duty of good faith and fair dealing, unjust enrichment, unconscionability, and violation of the California Unfair Competition Law.2

II. Legal Standard for Class Certification

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 de[671]*671termine 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 Court 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) (emphasis added) (quoting Little Caesar Enters., Inc. v. Smith, 172 F.R.D. 236, 241 (E.D.Mich.1997)).

A. Rule 23(a)

As to Rule 23(a), there are four prerequisites for class certification: numerosity, commonality, typicality, and adequacy of representation. See Fed.R.Civ.P. 23(a); Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Prado-Steiman v. Bush, 221 F.3d 1266, 1278 (11th Cir.2000). However, “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule— that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011); see also London v. Wal-Mart Stores, 340 F.3d 1246, 1253 (11th Cir.2003) (noting that party moving for class certification bears the burden of establishing each element of Rule 23(a)).

A district court may certify a class only if, after “rigorous analysis,” it determines that the party seeking certification has met its burden of a preponderance of the evidence. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 158-61, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). See also Teamsters Local U5 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 202-04 (2d Cir.2008) (requiring plaintiffs to meet burden by a preponderance of the evidence). If the party seeking class certification fails to satisfy any one of the Rule 23 requirements, then the ease may not continue as a class action. Jones v. Roy, 202 F.R.D. 658, 662 (M.D.Ala. 2001).

In reviewing a motion for class certification, the court generally is bound to take the substantive allegations of the complaint as true. Moreno-Espinosa v. J & J AG Prods., Inc., 247 F.R.D. 686 (S.D.Fla.2007). However, the court may look beyond the pleadings to determine whether the requirements of Rule 23 have been met. Vega v. T-Mobile USA Inc., 564 F.3d 1256, 1264 (11th Cir.2009). In making that assessment, the Court may not consider the plaintiffs’ likelihood of success on the merits, although some consideration of the merits may often be necessary. Compare Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); and Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 722-23 (11th Cir.1987); with Dukes, 131 S.Ct. at 2551 n. 6 (noting that “[frequently a ‘rigorous analysis’ will entail some overlap with the merits of the plaintiffs underlying claim”); and Love v. Turlington, 733 F.2d 1562, 1564 (11th Cir.1984) (holding that the Eisen doctrine should not be “talismanieally invoked to artificially limit a trial court’s examination of the factors necessary to a reasoned determination of whether a plaintiff has met her burden of establishing each of the Rule 23 class action requirements”).

(i) Numerosity

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Larsen v. Union Bank, N.A., 275 F.R.D. 666 (S.D. Fla. 2011).

275 F.R.D. 666 (Larsen v. Union Bank, N.A.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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