MEMORANDUM AND ORDER
Plaintiff Rhonda Dupler (hereinafter, “Ms. Dupler” or “plaintiff’) brings this action against Costco Wholesale Corporation (hereinafter, “Costco” or “defendant”), alleging that Costco’s backdating policy with respect to membership renewals is a deceptive trade practice in violation of New York General Business Law Section § 349, is a breach of Costco’s membership contract, and results in Costco’s unjust enrichment. Plaintiff has moved, pursuant to Fed.R.Civ.P. 23, to certify a class and for the appointment of class counsel. For the reasons that follow, the motion is granted.
I. Background and Procedural History
A. The Complaint
Defendant operates an international chain of membership retail “warehouses,” mainly under the “Costco Wholesale” name. (Am. Compl. ¶1.) Costco generates profits not only from selling merchandise, but also through charging membership fees for “annual memberships.” (Id. U11.)
The annual memberships sold by defendant to customers are a pre-condition of access to Costco’s Wholesale warehouse-style stores; only paid members have the right to purchase merchandise at Costсo warehouses.
Plaintiff asserts that, as result of Costco’s “deceptive, fraudulent, and improper” actions, members such as plaintiff have been deprived of the benefit of their bargain (ie., a full 12-month membership), resulting in defendant’s alleged improper and unlawful monetary gain and benefit. (Id. H 3.) Plaintiff asserts that she was not informed of this alleged backdating policy, nor did she give her consent. (Id. 1117.)
B. Proposed Representative Plaintiff
1. Rhonda Dupler
Proposed class representative plaintiff Ms. Dupler is a citizen and resident of the State of New York, County of Nassau. (Id. II8.) Ms. Dupler purchased a Costco annual membership at a Costco warehouse store in or about March 2003. (Id.) In 2004 and 2005, Ms. Dupler renewed her membership. (Id.) On March 31, 2006, Ms. Dupler’s membership expired. (Id.) She subsequently re
C. The Membership Agreement
It is undisputed that Costco utilizes a uniform “Privileges and Conditions of Your Costco Membership” document (hereinafter, “Privileges and Conditions of Membership”) for all class members. In pertinent part, the document provides:
5: Membership Cards and Fees
-Membership fee is for one twelve (12) month period from the date of enrollment of the primary cardholder.
6: Renewing, Adding or Deleting Cards
-You will receive a renewal notice by mail each year. Renewal fees are due no later than the last day of the month your membership expires.
-We will automatically extend your membership for an additional 12 months from your expiration date upon receiving your renewal fees.
(Bergin Decl., Exh. 3)
D. Procedural History
Plaintiff commenced this class action in New York Supreme Court, Nassau County, on May 9, 2006. Costco removed the action to this Court, and plaintiff subsequently filed her amended complaint on November 27, 2006. Defendant filed an Answer to the Amended Complaint on December 14, 2006. On September 10, 2007, рlaintiff moved for Class Certification and Appointment of Class Counsel. Oral argument was held on December 14, 2007. On January 16, 2008, defendant submitted a letter providing supplemental authority, to which plaintiff responded on January 18, 2008.
II. Discussion
Plaintiff seeks certification under Fed.R.Civ.P. 23(b)(2) and (b)(3) of the following class:
All New York citizens and residents who, from March 1, 2001 to the present purchased and paid for a new 12-month term of Costco membership (including Gold Star (individual), Business and Executive memberships) subsequent to the expiration of their prior annual memberships, and whose new 12 month membership terms were backdated by Costco to on or about the expiration date of their prior memberships.
Excluded from the Class are Defendant; any parent, subsidiary, or affiliate of Defendant; any entity in which Defendant has or had a controlling interest, or which Defendant otherwise controls or controlled; and any officer, director, employee, legal representative, predecessor, successor, or assignee of Defendant.
(hereinafter, the “Class” or the “Proposed Class”). Defendant objects to the Proposed Class, arguing that common issues are not present, that the proposed named plaintiffs claim is not typical, that the named plaintiff is an inadequate class representative, that common issues of law or fact do not predominate, and that the injunctive relief sought is not predominant.
As set forth below, the Court concludes that, because the requirements of Fed.R.Civ.P. 23(a) and (b)(2) have been met, the motion for class certification and appointment of class counsel is granted.
A. Applicable Law
Rule 23(a) of the Federal Rules of Civil Procedure sets forth a four-part test for certifying a class: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the
In seeking class certification, plaintiff must first demonstrate that all of the requirements of Fed.R.Civ.P. 23(а) have been satisfied. See Gen. Tel. Co. of Southwest v. Falcon,
The Second Circuit recently emphasized that the district court must conduct a “rigorous analysis” to determine “that every Rule 23 requirement” is met before certifying a class. In re Initial Public Offering Sec. Litig.,
(1) a district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met; (2) such determinations can be made only if the judge resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requiremеnt have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard, that the requirement is met; (3) the obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement; (4) in making such determinations, a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement; and (5) a district judge has ample discretion to circumscribe both the extent of discovery concerning Rule 23 requirements and the extent of a hearing to determine whether such requirements are met in order to assure that a class certification motion does not become a pretext for a partial trial of the merits.
In re Initial Public Offering Sec. Litig.,
1. Numerosity
Rule 23(a)(1) requires that the proposed class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). “Impracticability means difficulty or inconvenience of joinder [not] ... impossibility of jоinder,” In re Blech Sec. Litig.,
In the instant case, the numerosity requirement is clearly satisfied. Defendants do not contest in their opposition papers that this requirement is met. Indeed, plaintiff alleges that between 2001 and 2006 more than 1.1 million Costco memberships were backdated. (Plaintiffs Memorandum of Law
2. Common Questions of Law & Fact
A single common issue of law will satisfy the commonality requirement. Monaco v. Stone,
Plaintiff alleges that there are questions of law and fact that are common to the entire class, including, inter alia, the following: (1) whether Costco has a generally applicable policy and practice of backdating memberships that are “renewed” after а lapse of time; (2) whether Costco members assent to the backdating policy by purchasing memberships that are subject to Costco’s Privileges and Conditions of Membership; (3) whether Costco adequately discloses its backdating policy in the Privileges and Conditions of Membership; (4) whether Costco’s conduct in backdating memberships without adequate disclosure or consent is a “consumer oriented” practice within the meaning of N.Y. General Business Law § 349; (5) whether Costeo’s conduct in backdating memberships without adequate disclosure or consent is a “deceptive act or practice” within the meaning of N.Y. General Business Law § 349; (6) whether Costco’s failure to grant 12 full months of membership privileges in exchange for a full “annual” fee is a breach of its standard membership contract, as set forth in the Privileges and Conditions of Membership; and (7) whether Costco has been unjustly enriched by its policy and practice of backdating memberships. Plaintiff alleges that these questions are common to all class members because they involve the existence of generally applicable corporate policy and the meaning of the Privileges and Conditions of Membership, which apply to all Costco members.
In opposing certification, defendant argues that the common questions of law and fact proffered by plaintiff are merely restatements of plaintiff’s causes of action. Defendant further argues that those common questions of law and fact which are more specific would require a highly individualized analysis. As set forth below, the Court disagrees.
Because the plaintiff has demonstrated that (1) all putative class members are bound by the same Privileges and Conditions of Membership; and (2) Costco’s practice of backdating memberships for all memberships renewed within six months of the expiration date is a common course of conduct that has been applied to all putative class members, the Court finds that common questions of law and fact exist among the putative class. The core of this lawsuit is whether Costco’s Renewal Policy is adequately disclosed to Costco members in the Privileges and Conditiоns of Membership. (Pl.’s Reply at 10.) An overwhelming number of courts have held that claims arising out of form contracts are particularly appropriate for class action treatment. See, e.g., Steinberg v. Nationwide Mut. Ins. Co.,
Based on the allegations in the Amended Complaint, each membership is subject to the uniform “Privileges and Conditions of Your Costco Membership” document. See In re Playmobil,
3. Typicality
Plaintiffs claims must be typical of the class. Fed.R.Civ.P. 23(a)(3). This requirement is satisfied if the plaintiff shows that “the representative plaintiffs claims are based on the same legal theory and arise from the same practice or course of conduct as the other class members.” In re Playmobil,
Defendant argues that the representative plaintiffs claims are factually distinguishable from the rest of the proposed class. In particular, defendant contends: (1) that plaintiffs Section 349 claim is atypical because plaintiff only renewed her membership after her brother, a lawyer prosecuting the class action against Costco, informed her of Costco’s Renewal Policy; (2) plaintiff failed to show that other class members were exposed to the same alleged misrepresentation that forms the basis of her Section 349 claim; (3) plaintiff is atypical of the putative breach of contract class because, although she never read the terms of the membership agreement, she knew about the Renewal Policy; (4) all of plaintiffs causes of action are subject to a unique defense under the voluntary payment doctrine.
“Where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation,” certification for the class is improper because he or she can no longer act in the best interest of the class. Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp.,
Defendant asserts that the voluntary payment doctrine may be asserted against Ms. Dupler as a defense to her claims. The vоluntary payment doctrine “bars recovery of payments voluntarily made ‘with full knowledge of the facts.’ ” Solomon v. Bell Atl. Corp.,
Some courts have found the voluntary payment doctrine to preclude certification of a class. For example, in Newman v. RCN Telecom Services, Inc., the court found that the class representative paid his internet bill despite having knowledge that his service was inadequate.
In her deposition, Ms. Dupler denied defendant’s contention that she knew at the time that she renewed her membership in May of 2006 that Costco would apply its backdating policy to her membership. (See Dupler Tr. 56:3-57:22; 108:10-110:17). Thus, unlike the situation in other cases referenced above where it was undisputed that the plaintiff had full knowledge of the facts and thus the application of the voluntary payment doctrine was clear, that issue is in dispute in this case. Moreover, the faсt that a disputed issue exists as to this particular plaintiff on this defense does not mean that the typicality requirement cannot be met. Instead, the voluntary payment defense, like all potential defenses, must be examined in the context of the entire case to determine whether the defenses as to the named plaintiff are so atypical or complex that they threaten to become the focus of the litigation, thereby eviscerating the common issues of law and fact and undermining the class representative’s ability to act in the best interest of the class.
In the instant ease, as a threshold matter, it is not entirely clear that the voluntary payment doctrine will be an atypical defense. In fact, Costco suggests in its motion papers that the voluntary payment doctrine may be an issue for many members of the proposed class because “approximately 55% of class members renewed late multiple times during the class period” and, therefore, may have been aware of Costco’s policy based upon these multiple renewals. (Def.’s Opp. Br. at 34.) Thus, far from being atypical, the voluntary payment doctrine issue may be common to numerous class members. See, e.g., Davis v. Homecomings Fin., No. C051466RSL,
In any event, even assuming arguendo that the voluntary payment issue related to Ms. Dupler (because of her conversation with her brother before renewing with Costco) is unique in its application to this case, the Court does not view this potential factual issue as so complex that it will threaten to become the focus of the litigation or affect her ability to act in the best interest of the class. Despite this factual issue, her claims are based on the same legal theory as the Proposed Class and arise from the same course of conduct or practicе. Therefore, the voluntary payment doctrine defense that Costco wishes to assert against Ms. Dupler does not render her claim atypical.
Defendant also argues in its opposition that plaintiffs claim is atypical because it is based upon a May 8, 2006 call with a Costco representative, as well as Costco’s Privileges and Conditions of Membership, which Costco contends Ms. Dupler never read. In particular, Costco argues that the existence of this call and any alleged misrepresentations in this call, make plaintiff atypical of the class because other class members have simply relied on the words of the Privileges and Conditions of Membership. The Court finds this argument unpersuasive. Defendant’s argument is based upon a misunderstanding of the core of plaintiffs claim. Plaintiff is not basing her claim on a misrepresentation in the May 8th telephone call; rather, plaintiff is alleging that the same unlawful conduct, i.e. the failure to adequately disclose the backdating policy in the Privileges and Conditions of Membership, was directed against all members of the Class.
Finally, the fact that Ms. Dupler never read the Privileges and Conditions of Membership does not make her claim atypical. On this issue, it is important to emphasize that plaintiffs’ theory of the case is not one of misrepresentations in the Privileges and Conditions of Membership; rather, it is one of omission and nondisclosure. Given that theory, it does not appear that it will be critical to the case in connection with the alleged claims to individually examine whether Ms. Dupler or any other plaintiff actually reviewed the terms of the Privileges and Conditions of Membership.
In short, the question for the Court, at this stage, is whether “the named plaintiffs claim and the class claims are so interrelated that the interest of the class members will be fairly and adequately protectеd in their absence.” Caridad,
A class consisting of concert ticket holders who received advance notice that their seats were inadequate for viewing purposes, share common material issues of law and fact, relating to the fact of purchase, the issue of notice, and the suitability of the seats. Moreover, plaintiffs claims would be typical to those of the class members; to wit, deceptive business practices, breach of contract, or unjust enrichment.
Id. at *3 (citation omitted).
Accordingly, the Court concludes that the class representative’s claims are typical of the Class and this requirement is met. See DeBoer v. Mellon Mortg. Co.,
4. Adequacy of Representation
“The final prerequisite for class certification under Rule 23(a) is that the repre
“In addition, the court should assess the class representatives’ credibility and trustworthiness, and whether they have sufficient knowledge of and involvement in the case so that they are able and willing to protect interests of class against possible competing interests of attorneys.” Harris,
In determining whether plaintiff can adequately represent the interests of the class, courts are free to consider the honesty and trustworthiness of the class representative. See Savino v. Computer Credit Inc.,
Defendant asserts that Ms. Dupler does not have the requisite knowledge of the action to be an adequate class representative. “[C]lass representatives are inadequately informed only when they have so little knowledge of and involvement in the class action that they would be unable or unwilling to protect the interests of the class against the possibly competing interests of the attorneys.” In re Omnicom Group, Inc. Sec. Litig., No. 02 Civ. 4483(RCC),
Defendant further argues that Ms. Dupler is an inadequate class representative because she is too closely affiliated with class counsel. Defendant asserts that plaintiffs brother, Mr. Held, is an attorney associated with the firm seeking to represent the Class. Defendant does concedе, however, that Ms. Dupler testified that Mr. Held is no longer employed with the prospective class counsel. (Dupler Tr. 58:16-19.) Defendant still contends that substantial conflicts exist because Mr. Held was involved in initiating this suit and may be called as a witness, as well as the assertion that he is counsel of record in a similar California class action and likely would have an interest in this case resulting in a sizable award for his former firm. Plaintiff responds by emphasizing that Mr. Held is no longer employed with prospective class counsel and Ms. Dupler has no financial conflict.
As a threshold matter, the Court notes that there is no per se rule against relatives of class counsel serving as class representatives. See In re Frontier Ins. Group,
5. Class Certification Under Fed.R.Civ.P. 23(b)(3)
When the prerequisites of Rule 23(a) have been met, a class may be certified if it fits within one of the three categories in Rule 23(b). Fed.R.Civ.P. 23(b). “The requirement of ‘rigorous analysis’ to ensure ‘actual, not presumed conformance’ with Rule 23(a) applies with ‘equal force to all Rule 23 requirements, including those set forth in Rule 23(b)(3).’ ” In re Vivendi,
a. Predominance of Common Issues of Law and Fact
As a general matter, the “Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” In re Nassau County Strip Search Cases,
Defendant argues that individual issues of law and fact predominate including: (1) whether there was a materially deceptive representation or omission as required under Section 349; (2) individualized showings to prove causation; (3) proof of injury; (4) whether the voluntary payment doctrine bars certain putative class members’ claims; and (5) whether certain Costco business members lack standing to bring a Section 349 claim.
(1) Deceptive Trade Practices Under Section 349
N.Y. Gen. Bus. Law § 349(a) states that “deceptive acts or practices in the conduct of any business, trade, or commerce or in the furnishing of any service in this state are hereby declared unlawful.”
Plaintiff alleges that Costco violated Section 349 in failing to adequately disclose Costco’s backdating policy. Defendаnt ar
However, courts have certified Section 349 where the claim is based on an omission, rather than an actual misrepresentation. For example, in In re Coordinated Title Insurance Cases, No. 010764/2002,
Plaintiff alleges that the Renewal Policy was not contained within the Privileges and Conditions of Membership, nor was it articulated to her by the Costco Customer Services Representative during a March 8, 2006 conversation. Plaintiff therefore asserts that, as a whole, Costco has failed to adequately disclose their backdating policy to its members. In this instance, as in In re Coordinated Title Insurance Cases, the allegation is one of omission, not an actual misrepresentation. See also Weinberg v. Hertz Corp.,
(2) The Voluntary Payment Doctrine
Defendant also argues thаt class certification is not appropriate because the “voluntary payment doctrine” would bar recovery for any class member who, after learning of
As the Second Circuit held, “[although a court must examine the relevant facts and both the claims and defenses in determining whether a putative class meets the requirements of Rule 23(b)(3), the fact that a defense may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.” In re Visa Check/MasterMoney Antitrust Litig.,
Moreover, although some courts have denied class certification based upon individualized issues created by disputes about the application of the voluntary payment doctrine to particular plaintiffs, the Court does not view this issue as a barrier to class certification under the particular circumstances of this case. It is not the law that any time a voluntary payment doctrine issue is raised that certification must be denied. Such an absolute rule would bar almost all class actions involving alleged non-disclosures (even in standard form contracts) because there is always the possibility that a particular plaintiff, despite a nondisclosure by the defendant, somehow stumbled upon the nondisclosed fact at issue on his or her own and continued to make payments. Instead, the court must examine in each particular case how the voluntary paymеnt doctrine issue may impact the common issues of law and fact.
Here, as discussed supra, it appears that defendant may be trying to apply the voluntary payment doctrine broadly to any class member who had multiple renewals after expiration of the membership. Therefore, even if the doctrine applied, no complex, individualized assessment is required as to those members. See, e.g., Miller v. Optimum Choice, Inc., No. DKC 2003-3653,
[W]here common issues otherwise predominated, courts have usually certified Rule 23(b)(3) classes even though individual issues were present in one or more affirmative defenses. After all, Rule 23(b)(3) requires merely that common issues predominate, not that all issues be common to the class. If, moreover, evidence later shows that an affirmative defense is likely to bar claims against at least some class members, then a court has available adequate procedural mechanisms. For example, it can place class members with potentially barred claims in a separate subclass, or exclude them from the class altogether.
(3) Breach of Contract Claims
Under New York law, the elements of a breach of contract claim are: “(1) a valid contract; (2) plaintiffs performance; (3) defendant’s failure to perform; and (4) damages resulting from the breach.” Macaluso v. U.S. Life Ins. Co., No. 03 Civ. 2337(GEL),
All members of the Proposed Class are bound by the same membership agreement and Privileges and Conditions of Membership. (See Brosius Tr. 125:19 to 126:21). As the Court discussed supra, the alleged breach of standard-form contracts are particularly appropriate for class action. See Steinberg v. Nationwide Mut. Ins. Co.,
(4) Unjust Enrichment
Plaintiff pleads in the alternative that a claim for unjust enrichment exists.
Plaintiff alleges that Costco was unjustly enriched at the Class members’ expense when members paid renewal membership fees for periods of time that had already elapsed. Defendant makes the same argu
Similarly, to the extent defendant further argues that some members suffered no injury because they were allowed to shop with expired memberships under certain circumstances and therefore cannot recover under a claim of unjust enrichment, the Court’s analysis swpra on that issue in connection with the Section 349 claim applies equally here. In particular, under plaintiffs’ theory of the case, any Costco member who received less than 12 months of membership after a renewal would have a claim that they did not receive the full benefit of their bargain, regardless of whether they attempted to shop in a Costco warehouse. In short, as with the other claims, the Court finds that common issues predominate over any individual questions which may present themselves with regard to the unjust enrichment claim.
b. Superiority of Class Action
Where common questions of law and fact predominate over individual issues, Rule 23 further requires the Court to determine “that a class action is superior to other available mеthods for the fair and efficient adjudication of the controversy.” In determining whether these requirements are met, the Court should consider:
(A) the interest of the members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating litigation in a particular forum; and (D) the difficulties likely to be encountered in the management of a class action.
Fed.R. Civ. P. 23(B)(3).
In the instant case, the Proposed Class consists of thousands of potential class members, most of whom are likely to have suffered a small economic loss if they prevailed on individual claims arising from the dispute that is the subject of this lawsuit. Therefore, “ ‘[f]ew individuals could even contemplate proceeding with this litigation in any context other than through their participation in a class action, given the expense and burden that such litigation would entail[,]’ particularly when many of the putative plaintiffs have suffеred economic loss of de minimis value. ” In re Flag Telecom Holdings, Ltd. Sec. Litig.,
III. Conclusion
For the reasons set forth above, plaintiffs motion for class certification is GRANTED. The Court certifies the following Class under Fed.R.Civ.P. 23(b)(3):
All New York Citizens and residents who, from March 1, 2001 to the present purchased and paid for a new 12-month term of Costco membership (including Gold Star (individual), Business and Executive memberships) subsequent to the expiration of their prior annual memberships, and whose new 12 month membership terms were backdated by Costco to on or about the expiration date of their prior memberships.
Excluded from the Class are Defendant; any parent, subsidiary, or affiliate of Defendant; any entity in which Defendant has or had a controlling interest, or which Defendant otherwise controls or controlled; and any officer, director, employee, legal representative, predecessor, successor, or assignee of Defendant.
The Court further approves Meiselman, Denlea, Packman, Carton & Eberz P.C. as designated class counsel.
SO ORDERED.
Notes
. According to the complaint, annual membership prices range from $45 for a "Gold Star” individual membership or a "Business” membership to $100 for an "Executive” membership that offers certain rebates not available to other members. (Id. 1111.)
. It should be noted that Ms. Dupler allowed her membership to expire again on March 31, 2007. (Dupler Tr. 70:21 to 71:14.) Ms. Dupler subsequently renewed her membership on April 13, 2007. (Id. at 68:16 to 69:3.)
. Defendant argues that certain "business members” (that is, Costco memberships in the name of a business, rather than individuals) lack standing under Section 349 because this statute only applies to "consumer oriented” acts or practices. Defendant, however, misinterprets the statute. Courts have held that claims meet the consumer-orientation requirement of the statute if "some harm to the public at large is at issue.” Consol. Risk Servs., Inc. v. Auto. Dealers WC Self Ins. Trust, No. 06-CV-0871 (FJS/RFT),
. Defendant also contends (as highlighted in its supplemental letter to the Court) that "injury in fact” is an indispensable element of a Section 349 claim and putative class members who were able to shop despite their expired status cannot prevail under Section 349. For example, defendant argues that, in the Spring of 2002, Costco had the policy of allowing a shopper with an expired membership to complete one shopping transaction following expiration. See Defendant’s Opp. Br. at 6-7. However, the Court does not believe this issue precludes class certification. First, as plaintiff points out, the theory of injury and damages is not based upon how many times a person was denied the ability to shop during the expired period, but rather is based on the alleged prospective denial of a full 12-month membership at the time of renewal of their annual membership. In other words, the theory of injury and damages relates to the membership fee itself, rather than denial of shopping on a particular day. Thus, defendant's policy of overlooking expired cards in limited circumstances does not pose an insurmountable legal barrier to a Section 349 claim. Second, even assuming arguendo that damages could be impacted by defendant’s policy, it appears that there are large groups of putative class members who are similarly situated and that it is an issue that can be dealt with in a systematic way, rather than requiring mini-trials. See Defendant's Opp. Br. at 6 (noting that "at least 30% of lapsed members took advantage of this policy”). Finally, even assuming this policy required some individualized assessment on the issue of damages, the Court does not believe such a task would be so monumental in this case to preclude class certification. See, e.g., Murry v. Am.'s Mortgage Banc, Inc., No. 03 C 5811, 03 C 6186,
. The Court notes that, as to plaintiff’s unjust enrichment claim, it may only be asserted in thе absence of an agreement between the parties — be it oral, written or implied-in-fact. See, e.g., Beth Israel Medical Ctr. v. Horizon Blue Cross and Blue Shield of N.J., Inc.,
. The Court, having found that plaintiff satisfies Fed.R.Civ.P. 23(b)(3), finds it unnecessary to analyze whether plaintiff has satisfied the requirements of Fed.R.Civ.P. 23(b)(2).