ORDER AND OPINION GRANTING CLASS CERTIFICATION
THIS CAUSE is before the Court on Plaintiffs Delphia Simmons and Patricia Mattlage’s (“Plaintiffs”) Motion For Class Certification (DE #2384) (the “Motion”), filed January 6, 2012. The Court has carefully considered the Motion, Comerica’s Opposition (DE #2490), and Plaintiffs’ Reply (DE # 2583), as well as the parties’ voluminous evidentiary submissions and the oral argument of counsel. As announced at the hearing on this matter on July 18, 2012, and for the reasons set forth below, the Court grants the Motion.
I. FACTUAL ALLEGATIONS
Defendant Comerica Bank (“Comerica”) is a financial services company headquartered in Dallas, Texas that provides checking and debit card services to individual customers through approximately 550,000 consumer accounts in the United States and maintains approximately 443 banking centers in several states. {See Amended Compl. ¶¶ 15-18, DE # 990.) Plaintiffs are current and former Comerica customers who allege that Comerica employed specially designed software programs in a systematic scheme to extraсt the greatest possible number of overdraft fees from Plaintiffs and similarly situated Comerica customers across the country. {Id. ¶ 34.) Comerica allegedly collected millions of dollars in excessive overdraft fees as a result of this systematic scheme, much of it, according to Plaintiffs, from Comerica’s most vulnerable customers. {Id. ¶ 87.)
To carry out this scheme, Plaintiffs allege that Comerica manipulated debit card transactions by, among other things, employing a bookkeeping device to re-sequence the transactions from highest-to-lowest dollar amount at the time of posting. {Id. ¶ 24.) Plaintiffs allege that these account manipulations, which Comerica deponents testified were applied in the same manner to all class members as a result of Comerica’s standardized computer software, caused funds in customer accounts to be depleted more rapidly, resulting in more overdrafts and, consequently, mоre overdraft fees. {See Motion, at 10-12 (citing Deposition of Matthew Wind, Ex. 1 of Appendix III to the Motion).) Plaintiffs further allege that, in many instances, overdraft fees were levied at times when, but for Comerica’s manipulation, there would have been sufficient funds in the consumers’ accounts. (Motion, at 14-25.) Plaintiffs allege that Comerica did not fairly disclose its manipulations, took active steps to keep them secret, and engaged in these manipulations despite recognizing that it harmed its own customers. {Id. at 25-32.) Comerica disputes that it manipulated account transactions in a manner inconsistent with its deposit agreements and that it committed any violations of law. (Opposition, at 1-8.)
II. CLASS CERTIFICATION STANDARDS
Questions concerning class certification are left to the sound discretion of the district court, and the Court must undertake a rigorous analysis to insure that the Rule 23 prerequisites are met. Klay v. Humana, Inc.,
Courts “formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case.” Waste Mgmt. Holdings v. Mowbray,
Rule 23(a) states that a class may be certified “only if (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 claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). If the court finds that the class criteria of Rule 23(a) are satisfied, it then must also find that the class fits within one of the three categories of class actions defined in Rule 23(b).
III. DISCUSSION
A. The Class Definition
Before considering the requirements of Rule 23, the Court must determine whether a class exists that can adequately be defined. Singer v. AT & T Corp.,
All Comerica Bank customers in the United States who had or have one or more customer accounts and who, from the applicable statutes of limitation through August 15, 2010, (the “Class Period”), incurred one or more overdraft fees as a result of Comerica’s practice of sequencing debit card transactions from highest to lowest.2
(Motion, at 1.) Plaintiffs also seek the certification of subclasses for specific claims as set forth in Plaintiffs’ Proposed Trial Plan for Trial of Class Claims (the “Trial Plan”) (DE #2387). These subclasses are discussed below.
Comerica argues that the proposed class definition does not satisfy the requirements of Rule 23 because it lacks objective criteria to determine class membership, requires a merits determination, and is defined by reference to the applicable statutes of limitation.
The evidence demonstrates that class members can be identified from Comeriea’s own records. Plaintiffs propose to have their expert, Mr. Arthur Olsen, mine Comerica’s data to determine who the members of the class are. (See Declaration of Arthur Olsen (“Olsen Deck”), ¶¶ 37-52, Appendix IV tо Motion.) More specifically, Mr. Olsen will compare high-to-low sequencing (which yields the greatest number of overdraft fees) to low-to-high sequencing (which yields the lowest number of overdraft fees), which will define the outer parameters of the membership of the proposed class.
B. Rule 23(a)
1. Numerosity
The first requirement of Rule 23(a) is that the class must be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). “[A] numerical yardstick is not the determinant for class certification; rather a court should examine the numbers involved to see if joinder of all is impossible or impracticable.” Hastings-Murtagh v. Texas Air Corp.,
This case easily satisfies the numerosity requirement. Although the exact number of class members is not presently known, the proposed class appears to number in the tens- or hundreds-of-thousands. The evidence shows, for example, that Comerica has 550,000 consumer accounts and, in July 2010 alone, Comerica assessed over 129,000 individual overdraft fees. (See Motion, at 35.) Because of that great number, and the fact that the members of the class are geographically dispersed, there is no question that joinder is impractical. Kilgo v. Bowman Transp., Inc.,
2. Commonality
Rule 23(a)’s commonality prerequisite requires at least one issue common to all members of the class. See Fed.R.Civ.P. 23(a)(2). The “commonality” requirement of Rule 23(a)(2) “is a ‘low hurdle’ easily surmounted.” Duhaime v. John Hancock Mut. Life Ins. Co.,
Relying on Wal-Mart Stores, Inc. v. Dukes, — U.S. -,
Unlike the plaintiffs in Dukes, Plaintiffs here have provided evidence of a common corporate policy or practice, namely, Comerica’s systematic, computerized and uniform manipulation and re-ordering of debit card transactions, its development and implementation of overdraft limits, and its concealment of its overdraft practices, all to increase the number of overdraft fees imposed. Plaintiffs provided substantial evidence of Comerica’s uniform overdraft scheme, (Motion, at 35-36, 40-59), thereby satisfying the commonality and typicality standards. See Oakley v. Verizon Communications, Inc., No. 09-9175,
In particular, the common issues of law and fact in this case include whether Comerica:
• Manipulated and re-ordered transactions in order to increase the number of overdraft fees imposed;
• Disсlosed and/or refused to allow its class members to opt out of the overdraft protection program;
• Failed to alert class members that a debit card transaction would trigger an overdraft fee if processed and to provide them with an opportunity to cancel the transaction;
• Imposed overdraft fees when, but for re-sequencing, there would be sufficient funds in the account;
*653 • Concealed from class members the limits of their overdraft credit line and the existence of such a limit;
• Delayed posting transactions so that class members were charged overdraft fees even when sufficient funds were in the account to cover the transactions; and
• Breached the terms of its contracts with Plaintiffs and the class; engaged in practices that were substantively and proeedurally unconscionable; and/or was unjustly enriched at the expense of Plaintiffs and the class.
(Motion, at 36.)
Based on this and other evidence presented, the Court finds that Plaintiffs’ claims arise out of the same course of conduct and are based on the same legal theories as those of the absent class members. Comerica’s debit posting was done through a uniform, standardized, and automated process. All Plaintiffs and members of the proposed class, whose accounts were governed by common and materially uniform agreements, were subjected to Comerica’s practice of re-sequencing debit card transactions from high-to-low, and Plaintiffs allege that they and all members of the proposed class were assessed additional overdraft fees as a result. Thus, when the finder of fact determines whether Comerica’s uniform application of high-to-low reordering, as applied to all of customers in the same way, was unlawful, there will be a common answer that will resolve a central issue in the case, thus satisfying the commonаlity requirement.
3. Typicality
Plaintiffs have also satisfied the requirement of typicality. Typicality requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R.Civ.P. 23(a)(3). The typicality test centers on “whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named class plaintiffs, and whether other class members have been injured by the same course of conduct.” Hanon v. Dataprods. Corp.,
Like commonality, the test for typicality is not demanding. In re Disposable Contact Lens Antitrust Litig.,
To defeat typicality, the factual variation presented by a class representative’s claim “must be clear and must be such that interests of the class are placed in significant jeopardy.” Walco Invs., Inc. v. Thenen,
Moreover, to the extent that expectations are relevant, an objective standard governs.
In sum, the Court finds that Plaintiffs’ claims arise out of the same course of conduct and are based on the same legal theories as those of the absent class members. Pursuant to a standardized, automated process, Comerica posted all debit transactions that settled on a given day late in the evening or early the following morning before business hours. Throughout the Class Period, as to each Plaintiff and every member of the proposed class, it was Comerica’s uniform practice to post all debit transactions in a single “batch,” in the order of highest-to-lowest dollar amount. That is, all Plaintiffs and members of the proposed class, whose accounts were governed by common and materially uniform Deposit Agreement, were subjected to Comerica’s uniform practice of re-sequencing debit card transactions from high-to-low, and Plaintiffs allege that they and all members of the proposed class were assessed additional overdraft fees as a result. Plaintiffs propose discrete multi-state subclasses for some of the state law claims to ensure that the proposed class representatives’ claims are materially identical to all other class members that they seek to represent. (See Trial Plan, at 11-17.) Therefore, the Court finds that the typicality requirement is met.
4. Adequacy
The Court must be satisfied that the “representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). This requirement is satisfied when (i) the class representatives have no interests conflicting with the class; and (ii) the representatives and their attorneys will properly prosecute the case. Sosna v. Iowa,
The Court finds that neither the Plaintiffs nor their counsel have any interests
The law firms seeking to represent the class here include very qualified and experienced lawyers. The Court has reviewed the firm resumes setting forth their experience and expertise in class actions. In addition, the Court is familiar with many of the lawyers seeking to represent the class, as they have appeared before the Court a number of times. The Court is satisfied that the lead Plaintiffs and the firms seeking appointment as class counsel will properly and adequately prosecute this case. The Court therefore appoints Plaintiffs as representatives of the class, and appoints the following firms as class counsel pursuant to Fed.R.Civ.P. 23(g): Podhurst Orseck, P.A.; Bruce S. Rogow, P.A.; Baron & Budd, P.C.; Golomb & Honik, P.C.; Grossman Roth, P.A.; Lieff Cabraser Heimann & Bernstein LLP; Trief & Oik; and Webb, Klase & Lemond, L.L.C.
C. Rule 23(b)(3)
Plaintiffs bring this action under Rule 23(b)(3), which requires (i) that questions of law or fact common to class members predominate over any questions affecting individual members, and (ii) that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. See Fed.R.Civ.P. 23(b)(3).
1. Predominance
“Common issues of fact and law predominate if they ‘have a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to injunctive and monetary relief.’” Klay,
The predominance inquiry “focuses on the number and significance of common issues. This rule does not require a complete absence of individual issues. Cox v. American Cast Iron Pipe Co.,
The Court finds that predominance is satisfied in this case. Plaintiffs allege that Comerica’s course of conduct commonly, and adversely, affected the entire class, and have submitted evidence supporting that allegation. The class members are similarly situated with regard to the readily determined, allegedly excess fees they incurred as a result of a standardized process. The class is unified by both common questions and a common interest. The evidence necessary to establish Plaintiffs’ claims is common to both Plaintiffs and all members of the class; they all seek to prove that Comeriea’s high-to-low re-sequencing practice was wrongful. That evidentiary presentation involves the same evidence of (i) Comerica’s form contracts, with similar terms, applicable to all Plaintiffs and class members; (ii) Comerica’s systematic re-sequencing of debt transactions from high-to-low for all Plaintiffs and class members through its automated software programs; and (iii) the Matrix line of credit that Comerica secretly established for all Plaintiffs and class members in order to charge them overdraft fees. (See Trial Plan, at 3-6 & Ex. A; id. at 7-9 & Ex. C; id. at 9-10 & Ex. B; see also id. at Ex. D.) The evidence to be presented by the Plaintiffs has a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to relief. Klay,
Unique affirmative defenses rarely predominate where a common course of conduсt is established. Wahl v. Midland Credit Mgmt.,
As discussed below, Plaintiffs have met their burden of showing that common issues of fact and law will predominate within the subclasses they have proposed, as to each of their claims. As this Court observed in Larsen, the Court may certify multi-state classes even if “different claims or issues are subject to different bodies of law that are not the same in functional content but nonetheless present a limited number of patterns that the court ... can manage by means of’ sub-classing. Larsen,
For many of the reasons discussed above, the Court finds that common issues of law and fact relating to Plaintiffs’ breach of contract claims would predominate. Contrary to Comeriea’s contention that this claim requires consideration of the expectations, understandings, or preferences of each individual class member, (Opposition, at 46), the claim is amenable to common proof based on its uniform contract and the standardized contractual provisions in the Deposit Agreement.
Comerica does not deny that all class members received the same account agreements, which contained the same provision, or that none of the class members renegotiated or altered their agreements. Since the reasonable expectations of a party to a standardized form contract are judged objectively,
(ii) Unconscionability Claims
Common issues similarly predominate as to Plaintiffs’ unconscionability claims. As this Court has already recognized, common evidence of the bank’s conduct suffices to establish substantive and procedural unconscionability, making them appropriate for class certification. Larsen,
The Court has already ruled that Plaintiffs sufficiently pled the elements of uneonscionability, (DE # 305, at 28-31; DE # 1306, at 5), and Plaintiffs’ Trial Plan further identifies these common elements. (See Trial Plan, at 7-9.) Since the account agreements are materially similаr, a fact-finder could conclude, based on subclass-wide proof, that Comerica’s alleged failures to disclose the operative features of its overdraft policies were so unfair and overreaching as to be unconscionable. Moreover, considerations like the disparity in bargaining power between the parties, e.g., Kinkel v. Cingular Wireless L.L.C.,
(in) Unjust Enrichment Claims
Unjust enrichment claims can be certified for class treatment where there are common circumstances bearing on whether the defendant’s retention of a benefit received from class members was just or not. See James D. Hinson Elec. Contr. Co. v. Bellsouth Telecomms., Inc.,
The Court notes that the problems plaguing the proposed classes in Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc.,
In addition, the court’s certification in Gutierrez is instructive. Wells Fargo, like Comerica, also contended that individual issues would predominate, but the court found the “challenged practice is a standardized one applied on a routine basis to all customers.”
As discussed above, class members are readily ascertainable through objective criteria: Comerica’s own records of individuals who were assessed overdraft fees. Plaintiffs’ expert will formulate calculations that can identify members of the class by running queries in Comerica’s computer records. Such calculations will be merely ministerial in nature, and will not be plagued by resolution of individual class member issues. Damages will be calculated using the same Comerica records used to identify the class members. These facts make this case manageable as a class action.
Comerica argues that individual issues predominate with regard to these claims. Its argument relies on an incorrect reading of the relevant law. For example, it is not the case that the individual Plaintiffs’ and class members’ subjeсtive expectations are necessary to prove their claims. To the contrary, Plaintiffs’ claim can be shown by class-wide evidence of a defendant’s subjective bad faith or objectively unreasonable conduct. See, e.g., Menagerie Prods, v. Citysearch, No. CV 08-M263,
2. Superiority
A class action is the only realistic way Plaintiffs’ claims can be adjudicated. “Separate actions by each of the class members would be repetitive, wasteful, and an extraordinary burden on the courts.” Kennedy v. Tallant,
Class treatment is superior to other available methods for the fair and efficient adjudication of this controversy. Nearly all of the class members in this case have claims that are so small that it would cost them much more to litigate an individual ease than they could ever hope to recover in damages, and thus there is no reason to believe that the putative class members have any particular interest in controlling their own litigation. Comeriea suggests that class members may prefer an alternative posting order, (Opposition, at 24), but the legal and expert costs alone needed to litigate the case and calculate the damages would far exceed any individual class members’ recovery, and Comerica does not demonstrate anything to the contrary.
As discussed above, class members are readily ascertainable through objective criteria: Comerica’s own records of individuals who were assessed overdraft fees. Plaintiffs’ expert will formulate calculations that can identify members of the class by running queries in Comerica’s computer records. Such calculations will be merely ministerial in nature, and will not be plagued by resolution of individual class members’ issues. Damages will be calculated using the same Comeriea records used to identify the class members. These facts make this case eminently manageable as a class action. In any event, the mаnageability factor is seldom sufficient in and of itself to defeat certification, and multiple individual lawsuits would be substantially less manageable. See Klay,
Nor do Comerica’s affirmative defenses defeat certification of the class. (See Amended Answer, DE # 1709.) Although Comerica claims that its affirmative defenses require individualized proof, (Opposition, at 53-60), the Court finds the defenses are susceptible to class-wide proof. For example, defenses such as waiver and ratification,
These defenses may also pertain more to damages than liability, depending on how the facts develop in discovery. See, e.g., Coughlin v. Blair,
Of course, whether Plaintiffs’ or Comerica’s evidence will prevail is not the appropriate inquiry at this time. Instead, it is enough to note that both Plaintiffs and Comerica plan to rely on common evidence in making their eases, which makes the case appropriate for certification as a class action.
D. The Use of Subclasses
The Court certifies five subclasses: onе breach of contract subclass, two unjust enrichment subclasses, and two unconscionability subclasses. Plaintiffs’ Trial Plan, included in Appendix I to the Motion, contains an extensive analysis of state law breach of contract, unjust enrichment, and unconscionability. As the surveys demonstrate, variations are minimal, and are fiilly addressed by the subclasses proposed by Plaintiffs, which unify within each of the subclasses the state laws with common elements.
The Court finds that the creation of subclasses to address variations in state law is appropriate here and will make this case manageable as a class action. See, e.g., Klay,
The proposed materials submitted by Plaintiffs with their Trial Plan illustrate that the variations among the potentially applicable state laws are not material and can be managed to permit a fair and efficient adjudication by the fact-finder at trial. The state subclasses and representatives for each are
Class treatment is superior to other available methods for the fair and efficient adjudication of this controversy. Nearly all of the class members in this case have claims that are so small thаt it would cost them much more to litigate an individual case than they could ever hope to recover in damages, and thus there is no reason to believe that the putative class members in this case have any particular interest in controlling their own litigation. Concentrating the litigation in this forum is logical and desirable. And as noted above, this ease is eminently manageable as a class action.
IV. CONCLUSION
In accordance with the findings above, it is hereby ORDERED, ADJUDGED, and DECREED as follows:
1. Plaintiffs’ Motion for Class Certification (DE # 2384) is GRANTED. The Court certifies the following class:
All Comerica Bank customers in the United States who had or have one or more customer accounts and who, from the applicable statutes of limitation through August 15, 2010, (the “Class Period”), incurred one or more overdraft fees as a result of Comerica’s practice of sequencing debit card transactions from highest to lowest.
Excluded from the Class are Comerica; its parents, subsidiaries, affiliates, officers and directors; any entity in which Comerica has a controlling interest; all customers who make a timely election to be excluded; and all judges assigned to this litigation and their immediate family members.
2. The Court appoints Plaintiffs Delphia Simmons and Patricia Mattlage as representatives of the Class, and as representatives of the following specific, certified subclasses:
Subclass Number15 Representative States
Breach of Contract 1 Delphia Simmons and Patricia CO, IL, MI, TX, OH Mattlage
Unjust 1 Delphia Simmons CA, IL, MI, NE Enrichment
Unjust Enrichment 2 Patricia Mattlage TX
Unconseionability 1 Delphia Simmons and Patricia CA, CO, FL, MI, _Mattlage_NV, OH, TX_
Unconseionability 2 Delphia Simmons and Patricia AZ, IL Mattlage
3. The Court appoints the following firms as Class Counsel pursuant to Fed.R.Civ.P. 23(g): Podhurst Orseck, P.A.; Bruce S. Rogow, P.A.; Baron & Budd, P.C.; Golomb & Honik, P.C.; Grossman Roth, P.A.; Lieff Cabraser Heimann & Bernstein LLP; Trief & Oik; Webb, Klase & Lemond, L.L.C.
Notes
. Without making conclusive findings of fact at this preliminary stage, the record appears to indicate the following factual allegations are material to the Court’s certification analysis.
. Excluded from the Class are Comerica; its рarents, subsidiaries, affiliates, officers and directors; any entity in which Comerica has a controlling interest; all customers who make a timely election to be excluded; and all judges assigned to this litigation and their immediate family members.
. Courts commonly certify classes with start dates that are linked to the statute of limitations where, as here, the challenged conduct predates the relevant limitations periods. See, e.g., Nelson v. Mead Johnson Nutrition Co.,
. The Court finds that the expert testimony and evidence offered by Comerica is insufficient to rebut Mr. Olsen's findings and conclusions at this stage. Plaintiffs have put forth sufficient evidence to demonstrate Mr. Olsen’s ability to
. See 7A Wright, Miller & Kane, Federal Practice & Procedure: Civil 3d § 1760 (3d ed. 2005) ("If the general outlines of the membership of the class are determinable at the outset of the litigation, a class will be deemed to exist.”).
. Klay,
. See also, e.g., Sadler v. Midland Credit Mgmt., No. 06 C 5045,
. "The typicality and commonality requirements are distinct but interrelated, as the Supreme Court made clear: ‘The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.' ” Cooper v. Southern Co.,
. See Larsen, 275 F.R.D. at 680 ("For example, it is not the case that the individual Plaintiffs’ and class members' subjective expectations are necessary to prоve their claims. To the contrary, breach of the covenant good faith and fair dealing may be shown by class-wide evidence of a defendant's subjective bad faith or objectively unreasonable conduct.”).
. See, e.g., Parcel Tankers, Inc. v. M/T Stolt Luisa Pando,
. See also County of Monroe v. Priceline.com, Inc.,
. See Thirteenth & Fifteenth Affirmative Defenses (DE # 1702).
. See, e.g., Frans v. Harleysville, No. 280173,
. Moreover, to the extent Comerica could prove that some customers nonetheless learned of their Matrix limit, yet continued to incur and pay overdraft fees, the presence of individualized defenses as to a small number of class members would not destroy the predominance of common liability questions. See Smilow v. Southwestern Bell Mobile, Sys., Inc.,
. The Subclass Numbers are those set forth at pages 13-17 of Plaintiffs’ Trial Plan.
. The Court will address the procedure for providing notice to class members regarding the certification of the class and these claims separately.