Upshaw v. Georgia (GA) Catalog Sales, Inc.

206 F.R.D. 694, 2002 U.S. Dist. LEXIS 15773, 2002 WL 745640
District Court, M.D. Georgia·Decided April 3, 2002·No. No. 4:00-CV-86-2(CDL)·Published·Cited by 10 cases

Opinion

ORDER

LAND, District Judge.

I. INTRODUCTION

The Court has pending before it Plaintiffs’ Motion to Proceed As a Class Action. Plaintiffs, Kogie Upshaw and Latisha C. Washington, individually and on behalf of all others similarly situated (collectively “Plaintiffs”), claim that Defendants engaged in unauthorized and unenforceable loan transactions, charging and collecting an interest rate that exceeds the maximum interest rate under Georgia law. Defendants are Georgia Catalog Sales, Inc. (“GCS”), John Gill (“Gill”), who allegedly owned and operated the business, and unknown entities and individuals (collectively “Defendants”). Plaintiffs allege in their First Amended Class Action Complaint that Defendants violated: (1) Georgia’s interest and usury statutes, O.C.G.A. § 7-4-2 and O.C.G.A, § 7-4-18 (Count I); and the federal Racketeer Influenced and Corrupt Organizations Act(“RICO”), 18 U.S.C. § 1961 et seq. (Count II).1

Plaintiffs seek certification of a class of all persons who after May 3, 1996, engaged in transactions at any of GCS’s locations in Georgia in which the person received a cash advance and gave GCS a check. Plaintiffs’ [696] motion has been fully briefed by the parties. Furthermore, the Court received evidence and heard argument from counsel at a hearing on January 30, 2002. Having fully considered Plaintiffs’ motion and Defendants’ opposition to the motion, the Court finds pursuant to Rule 23 of the Federal Rules of Civil Procedure that a class should be certified in this case. For the reasons set forth below, the Court certifies the following class: all persons who after May 3, 1996, engaged in transactions at any of GSC’s locations in Georgia in which the person received a cash advance and gave GCS a check, and who never obtained any merchandise using any catalogue gift certificate issued by GCS.2

II. FACTUAL BACKGROUND

Plaintiffs contend that Defendants engaged in a common course of conduct in which they advanced money and gave catalogue gift certificates to consumers in exchange for a written document in the form of a personal cheek. Evidence was submitted at the class certification hearing from which a fact finder could conclude that every customer that engaged in a transaction with GCS was treated substantially the same. Any differences in the way transactions were handled from one customer to the next related to the amount of the cash advance the customer sought with a corresponding, but directly proportional, difference in the charge for the cash advance and the amount of the gift certificate.3

Evidence was presented at the class certification hearing that Defendants market their business to potential customers as a cash advance service.4 Defendants’ advertisements seek to induce persons who need money to visit their business to obtain a cash advance. One such advertisement introduced at the class certification hearing, soliciting customers for all of GCS’s 16 Georgia stores, states in bold letters: “ADVANCE TIL PAYDAY.” The advertisement promotes Defendants’ cash advance service by offering up to $500 “instant cash.” The advertisement states: “NEED EXTRA CASH $NOW$. Can’t wait until payday. We Make Today Your Next Payday.” The advertisement continues: “Write your check— GET CASH. We will deposit it on your next payday.” This solicitation does not mention “gift certificates.” A reasonable fact finder and prospective customer could conclude from Defendants’ solicitations that Defendants are in the short-term lending business.

Plaintiffs contend that these transactions are loans at usurious and illegal rates, exceeding 16% per annum simple interest and 5% interest per month in violation of O.C.G.A. § 7-4-2(a)(2) and § 7-14-18(a). Defendants contend that the difference between the amount of the cash advance and the customer’s check is not interest because the customers are provided with catalogue gift certificates which have some value. [697] Plaintiffs contend that the catalogue gift certificates are worthless and a sham designed as part of an overall scheme to disguise illegal and usurious^ interest. As the Court has previously found in denying Defendant’s motion to dismiss, a jury question exists on the issue of whether the gift certificates have any real value or are part of a scheme to disguise the amount of interest charged on short-term loans. Although Defendants introduced evidence at the class certification hearing on the issue of the redeemability of the gift certificates and the value of items that could be purchased with them, the Court finds for class certification purposes that a disputed issue of fact exists as to whether the catalogue certificates have any value.

In support of their argument that the catalogue gift certificates have no value, Plaintiffs point out that gift certificates are not even mentioned in Defendants’ advertisements. Moreover, Plaintiffs allege (and no contrary evidence has been submitted by Defendants) that a high percentage of customers do not redeem the gift certificates. Furthermore, testimony presented at the hearing by Defendants’ “experts” creates a disputed issue as to whether a reasonably prudent customer would see sufficient value in the certificates to go to the trouble of sending them in, waiting on delays in shipping, and receiving items that are not significantly cheaper than similar items that could be purchased off the shelf after the shipping and/or handling costs are added.

At this stage of the proceedings, the Court is not to rule on the merits of Plaintiffs’ claims. Without deciding the issue, however, the Court is satisfied for purposes of determining whether a class should be certified in this case that a jury question exists on whether the certificates have any value and thus whether the difference in the amount of the cash advance and the amount of a customer’s check is usurious interest. Therefore, the Court finds that the evidence submitted at the class certification hearing regarding the value of the gift certificates standing alone does not prevent class certification.5

III. REQUIREMENTS FOR CLASS CERTIFICATION

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Upshaw v. Georgia (GA) Catalog Sales, Inc., 206 F.R.D. 694, 2002 U.S. Dist. LEXIS 15773, 2002 WL 745640 (M.D. Ga. 2002).

206 F.R.D. 694 (Upshaw v. Georgia (GA) Catalog Sales, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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