Vaccariello v. XM Satellite Radio, Inc.
295 F.R.D. 62
S.D.N.Y.2013Background
- Plaintiff Richard Vaccariello sues XM Satellite Radio under NY GBL § 349 and NY GOL § 5-903 seeking injunctive relief and class certification.
- XM provides subscription satellite radio and automatically renews subscriptions for identical terms upon expiration.
- Vaccariello previously purchased a one-year subscription in 2004, then a three-year renewal in 2005, and activated an online account.
- During online activation, Vaccariello checked a box indicating he read and accepted XM’s terms, which state the term is indefinite and services continue until canceled.
- Vaccariello’s renewal triggered an invoice; after a late notice, he canceled and paid a pro-rated amount for services during renewal.
- Magistrate Judge Yanthis recommended denying class certification, which the district court adopted in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to certify Rule 23(b)(2) class | Vaccariello seeks injunctive relief for all New York XM customers. | Standing requires present injury; Vaccariello was not an XM customer when suit filed. | No standing; Rule 23(b)(2) class denied. |
| Predominance for GBL § 349 claim | Common proof can show deceptive renewal practices and injury. | Individual proofs needed for who was injured and who benefited. | Predominance not shown; class not certifiable under 23(b)(3). |
| Predominance for unjust enrichment claim | Unjust enrichment can be proven on a class-wide basis. | Clickwrap contracts and individualized injury negate class-wide proof. | Not amenable to class treatment; lack of predominance. |
| GOL § 5-903 noncompliance as independent action | Noncompliance supports GBL § 349 deception claims. | Noncompliance does not create an independent cause of action. | Noncompliance cannot serve as a predicate for class-wide GBL § 349 relief. |
Key Cases Cited
- In re Visa Check/MasterMoney Anti-Trust Litig., 280 F.3d 124 (2d Cir. 2001) (standard for 23(b)(2) and predominance in class actions)
- In re Currency Conversion Fee Antitrust Litig., 230 F.R.D. 303 (S.D.N.Y. 2004) (predominance and class-wide proof considerations)
- McLaughlin v. American Tobacco Co., 522 F.3d 215 (2d Cir. 2008) (rigorous analysis and Rule 23(b) standards)
- Jermyn v. Best Buy Stores, 256 F.R.D. 418 (S.D.N.Y. 2009) (injury and standing considerations in class actions)
- Beth Israel Medical Center v. Horizon Blue Cross & Blue Shield, 448 F.3d 573 (2d Cir. 2006) (unjust enrichment and contract defenses interplay)
- Warth v. Seldin, 422 U.S. 490 (U.S. 1975) (standing requirement and injury in fact)
- Shain v. Ellison, 356 F.3d 211 (2d Cir. 2004) (standing and injunctive relief standards)