Larsen v. Union Bank, N.A.
275 F.R.D. 666
S.D. Fla.2011Background
- Plaintiffs move for class certification of claims including breach of contract, implied covenant of good faith and fair dealing, unjust enrichment, unconscionability, and California UCL.
- Plaintiffs allege Union Bank used automated software to re-sequence debit transactions from highest-to-lowest to maximize overdraft fees across a nationwide class.
- Plaintiffs contend Union concealed its manipulations and that the scheme harmed a large, geographically dispersed customer base.
- Union disputes manipulation of transactions and any violations of law.
- The Court grants certification under Rule 23(b)(3) and authorizes four state-law subclasses consistent with the differing state laws involved.
- The class is defined as Union Bank customers in the United States with overdraft fees resulting from high-to-low sequencing during the class period through August 13, 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Predominance under Rule 23(b)(3). | Common evidence on a standardized policy predominates. | Individual issues would predominate due to variances in contracts and defenses. | Predominance satisfied; common evidence governs liability and damages. |
| Numerosity under Rule 23(a)(1). | Class size is tens-to-hundreds of thousands, impractical to joinder. | Numerosity not met due to potential ascertainability issues. | Numerosity satisfied; joinder impracticable given size and geographic dispersion. |
| Commonality under Rule 23(a)(2). | Common scheme of high-to-low re-sequencing affects all class members. | Commonality satisfied; at least one common issue exists and class-wide proof is feasible. | |
| Typicality under Rule 23(a)(3). | Named plaintiffs’ claims arise from the same conduct and legal theories as the class. | Typicality satisfied; same course of conduct affecting all class members. | |
| Subclass certification under Rule 23(c)/(b). | Four state-law subclasses are appropriate to manage variations in law. | Four subclasses certified: two-state good faith, California unjust enrichment, three-state unconscionability, and California UCL. |
Key Cases Cited
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (U.S. 1997) (standard for predominance and manageability in class actions)
- Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004) (burden on class to show Rule 23 elements by preponderance; common questions predominate in many consumer actions)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (burden to show Rule 23 elements; commonality and predominance considerations clarified)
- In re Cardizem CD Antitrust Litig., 200 F.R.D. 326 (E.D. Mich. 2001) (example of predominant common issues and class treatment in complex actions)
- Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248 (11th Cir. 2003) (common questions predominate in class actions involving uniform policies)
- Gulf Coast decisions referenced: Gutierrez v. Wells Fargo Bank, N.A., (reported as Gutierrez, 2008 WL 4279550) (N.D. Cal. 2008) (standardized practice applied to all customers supports class treatment)
- Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159 (11th Cir. 2010) (decision distinguishing when class certification is inappropriate due to variations in contracts/order)
- Kennedy v. Tallant, 710 F.2d 711 (11th Cir. 1983) (support for superiority and efficiency of class actions when individual suits are impractical)