Midland Pizza, LLC v. Southwestern Bell Telephone Co.
277 F.R.D. 637
D. Kan.2011Background
- Plaintiffs allege defendant failed to police third-party billers, resulting in cramming of Kansas phone bills.
- Plaintiffs move to certify two classes: (i) injunctive relief under Rule 23(b)(2) and (ii) damages under Rule 23(b)(3).
- Plaintiffs Midland Pizza, Pflumm & College Pizza, and Prairie Village Pizza each received multiple bills with charges attributed to third-party services and deny ordering or authorizing them.
- Plaintiff Mark Watkins received bills with charges attributed to TRSCN CLRNG and TEXTSAVINGS, LLC, which he denies ordering.
- Counts include KCPA claims (unlawful cramming, deceptive and unconscionable practices), unjust enrichment, and negligence; only Watkins may pursue KCPA claims.
- The court declines to certify either class, finding injunctive relief too vague and damages claims depend on individualized determinations of authorization per bill.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Rule 23(b)(2) injunctive class is appropriate. | Watkins argues uniform company policy causes cramming applies to all class members. | Injunctive relief would be too vague and primary relief is damages. | Rule 23(b)(2) not appropriate; injunctive relief denied. |
| Whether a Rule 23(b)(3) damages class is appropriate. | No individualized issues because safeguards apply class-wide and authorization is verifiable by records. | Authorization and actual charges require individualized inquiries; damages and punitive/unjust enrichment defenses also require individual proof. | Rule 23(b)(3) not appropriate; damages class denied. |
Key Cases Cited
- DG v. Devaughn, 594 F.3d 1188 (10th Cir. 2010) (focuses on policy-based injury; not applicable where injury is individualized)
- Barela v. United Nuclear Corp., 462 F.2d 149 (10th Cir. 1972) (clarifies standards for 23(b)(2) class actions)
- Shook v. El Paso Cnty.,, 386 F.3d 963 (10th Cir. 2004) (rigorous analysis for Rule 23; class certification standards)
- Shook II, 543 F.3d 597 (10th Cir. 2008) (describes specificity required for injunctions under Rule 65(d))
- Lady Di’s, Inc. v. Enhanced Servs. Billing, Inc., 654 F.3d 728 (7th Cir. 2011) (denial of class certification due to lack of common proof on authorization)