McCracken v. Best Buy Stores, L.P.

248 F.R.D. 162, 2008 U.S. Dist. LEXIS 21427, 2008 WL 731033
CourtDistrict Court, S.D. New York
DecidedMarch 19, 2008
DocketNo. 06 Civ. 783(DC)
StatusPublished
Cited by4 cases

This text of 248 F.R.D. 162 (McCracken v. Best Buy Stores, L.P.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCracken v. Best Buy Stores, L.P., 248 F.R.D. 162, 2008 U.S. Dist. LEXIS 21427, 2008 WL 731033 (S.D.N.Y. 2008).

Opinion

OPINION

CHIN, District Judge.

Before the Court is plaintiffs’ motion for class certification pursuant to Federal Rule of Civil Procedure 23. Plaintiffs seek to certify a class of “all consumers who purchased merchandise from Best Buy since February 2003 and were improperly charged for a magazine subscription to Sports Illustrated, Entertainment Weekly, or Time and who have been damaged.” (Compl. ¶ S3).1 Plaintiffs proceed based on theories of breach of contract and unjust enrichment.

Because it is clear that plaintiffs’ claims rely on oral representations of individual sales clerks that do not lend themselves to “generalized proof,” the motion for class certification is denied.

BACKGROUND

A. Facts

I make the following findings of facts based on the deposition testimony, affidavits, and exhibits submitted by the parties in connection with this motion. In re Initial Pub. Offering Sec. Litig. (In re IPO Sec. Litig.), 471 F.3d 24, 27, 41 (2d Cir.2006) (when adjudicating motion for class certification, “all of the evidence must be assessed as with any other threshold issue”; “the judge [must] resolve factual disputes” relevant to motion).

1. Plaintiffs’ Transactions at Best Buy

The two named plaintiffs are Dylan McCracken and Paul Watchorn, both of whom purchased subscriptions to magazines published by defendant Time, Inc. (“Time”) when they were purchasing other merchandise at stores operated by defendant Best Buy Stores, L.P. (“Best Buy”).

a. McCracken

On September 9, 2005, McCracken was shopping at a Best Buy store in Los Angeles, California. (Cavanna Deck Ex. 4). When he used his debit card to purchase six DVDs, the cashier offered “free issues of the magazine of [his] choice.” (McCracken Dep. at 24:7-9; 25:15-16).2 He accepted the offer after he “made sure [the magazines were] free and it wasn’t a gimmick.” (Id. at 26:25-27:2).

Although he does not recall “the precise chronological order of the events” of the transaction, McCracken did sign an electronic signature pad, which stated the following:

I AUTHORIZE BestBuy [sic] to give my eredit/debit card to SI to CHARGE MY CARD after the 8 issue trial for 24 issues (8 + 16 more) at $24.95 & to charge auto renewals every 6 months at then current rate. See flyer.

(Id. at 25:10-11; 39-41; Boe Deck Ex. 6). McCracken signed his name immediately below this language. He only “glanced over” the disclosure on the signature pad and “didn’t really pay much attention to it.” (McCracken Dep. at 40:9-10). Nevertheless, he was given the material terms of the magazine offer prior to completing the transaction.

McCracken also received a receipt, which showed that he was charged “$0.00” for Sports Illustrated. (Id. at 51-52; Cavanna Deck Ex. 4). In addition, the receipt contained the following information about the magazine offer:

NO RISK: If within 8 issues you do not want the magazine, call SI at 1-800-284-8800 or go online to: WWW.
[164]*164SICUSTOMERSERYICE.COM and you will not be charged. If you do not cancel during the 8 issue trial, SI will charge your card $24.95 for the initial 24 issue subscription term (8 issue trial + 16 more, 24 total issues).

(Id.). McCracken also “glanced over” the disclosure section of the receipt, but “did not absorb it completely.” (McCracken Dep. at 52:4-5).

McCracken does not remember whether the sales clerk gave him the flyer mentioned on the signature pad (id. at 26:12-13; see also id. at 31:9-18), even though at the point of sale, clerks were supposed to give each enrolling customer a brochure containing the material terms of the magazine offer (Boe Decl. ¶¶ 8, 14; id. Ex. 1). See also Labajo v. Best Buy Stores, L.P., 478 F.Supp.2d 523, 526 (S.D.N.Y.2007). Time mails a confirmation notice to customers who purchase a subscription, which reiterates the automatic renewal and cancellation provisions of the offer. (Cavanna Decl. ¶ 7; id. Exs. 6, 7). McCracken also does not recall receiving this notice. (McCracken Dep. at 58:13-16).

McCracken was charged for one subscription term on November 19, 2005, but he cancelled and received a full refund of $24.95 on December 1, 2005. (Id. at 67:14-18; Ca-vanna Decl. ¶ 10).3 His alleged damages, however, are the fees that were assessed when his bank account was overdrawn for insufficient funds. (McCracken Dep. at 67, 80-82; Clarick Decl. Ex, 3).

b. Watchorn

On January 19, 2005, Watchorn purchased a prepaid cell phone at a Best Buy store in Jacksonville, Florida. (Clarick Decl. Ex. 5). He learned about the magazine offer from a sales clerk during checkout. (Watchorn Dep. at 27:9-16).4 In her presentation of the offer, the clerk used the phrases “free magazines” and “trial subscription.” (Id. at 27:23-24, 28:12-13).

Watchorn paid for his purchase in cash, but provided his credit card and signed an electronic signature pad when the sales clerk informed him that a credit card was required “for verification purposes.” (Id. at 25:3-7). Watchorn testified that the signature pad did not display any disclosure (id. at 55:11-13), but he is wrong.5 The signature pad contained the following language:

Yes! Sign me up for Entertainment Weekly’s 8 issue trial offer with automatic renewal. I authorize Best Buy to give my credit or debit card to EW and EW to charge my card for the initial and six month renewal terms.

(Boe Decl. Ex. 6). Watchorn signed immediately below. (Id.). He was thus given the material terms of the offer before he signed the signature pad, except that he was not told the price of a magazine subscription.

Watchorn also received a receipt, which showed that he was charged “$0.00” for Entertainment Weekly. (Watchorn Dep. at 69; Cavanna Decl. Ex. 5). In addition, the receipt contained the same information as the signature pad as well as the following information about the magazine offer:

AUTOMATIC RENEWAL: For your convenience, after the initial 24-issue subscription term, should you decide to continue with the magazine do nothing. EW will automatically continue your subscription unless you tell us to stop. You authorize EW to charge your credit/debit card for the initial subscription term and every six months after that at the guaranteed low price in effect.

(Id.). Watchorn testified that he did not know whether the receipt contained the disclosure. (Watchorn Dep. at 70:21-25). This testimo[165]*165ny, however, is rejected in light of the copy of the receipt that lists Watchorn’s name, address, and the prepaid cell phone he purchased. (Cavanna Decl. Ex. 5).

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Bluebook (online)
248 F.R.D. 162, 2008 U.S. Dist. LEXIS 21427, 2008 WL 731033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccracken-v-best-buy-stores-lp-nysd-2008.