In Re: Vertrue Inc. Marketing v.
719 F.3d 474
| 6th Cir. | 2013Background
- MDL with thirteen putative class actions against Vertrue, Inc. and Adaptive Marketing, LLC over membership scheme.
- District court (April 16, 2010) dismissed several state-law, RICO, and tolling-related claims, but allowed some claims to proceed and denied class-allegations strike.
- Appeal argued November 17, 2011; bankruptcy stay briefly halted briefing, later lifted for this appeal; panel affirms district court.
- Vertrue marketed membership programs; advertisers lured customers with bait product; customers charged annual fees ($60–$170) after enrollment; refunds only on cancellation.
- Sanford v. West (SD Cal., 2002) preceded the MDL; arbitration and class-cert issues led to dismissal of federal EFTA claim and non-certification-related issues; Ninth Circuit later influenced tolling considerations.
- Consolidated MDL complaints assert EFTA, RICO, state consumer-protection statutes, conversion, unjust enrichment, fraud, negligent misrepresentation, and money had & received; relevant tolling issues central to timing of claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether American Pipe tolling applies to federal claims in the MDL | Sanford class action tolls federal claims for unnamed members | Andrews limits American Pipe tolling when class certification not yet decided | Yes, tolling applies to federal claims. |
| Whether § 1367(d) tolls state-law claims filed in Sanford | State claims tolled during pendency and 30 days after dismissal | Application of § 1367(d) is ambiguous and may not toll unnamed plaintiffs | Suspension approach tolls state-law claims under § 1367(d). |
| Whether unnamed Sanford plaintiffs' claims toll under § 1367(d) | Unnamed plaintiffs have 'claims' for tolling purposes | Unknown or disputed tolling status for unnamed plaintiffs | Unnamed plaintiffs' claims properly tolled under § 1367(d). |
| Wyser-Pratte applicability to tolling when filing new action before certification decision | Delay until certification decision preserves rights via American Pipe | Wyser-Pratte bars tolling when independent action filed before certification ruling | Wyser-Pratte does not control; plaintiffs waited appropriately. |
Key Cases Cited
- American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) (class tolling extends to all potential class members)
- Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983) (extends American Pipe tolling to subsequent individual actions)
- Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988) (tolling protected individual claims; denial of class certification ends tolling)
- Wyser-Pratte Management Co. v. Telxon Corp., 413 F.3d 553 (6th Cir. 2005) (limits American Pipe tolling when independent action filed before certification decision)
- Korwek v. Hunt, 827 F.2d 874 (2d Cir. 1987) (recognizes tolling considerations in class-action context)
- Devlin v. Scardelletti, 536 U.S. 1 (2002) (tolling and class-action considerations in Supreme Court)
- Turner v. Kight, No. cited in discussion (Md./Minn. case references) (2008) (interpreted tolling approaches under state-law statutes)