ORDER
Plaintiffs James D. Hinson Electrical Contracting Co., Inc. (Hinson) and Jensen Civil
I. Background
The facts of this ease are set forth in this Court’s previous orders. (Docs. 33, 97, 167.) To provide a brief summary, Hinson and Jensen damaged BellSouth’s underground facilities in connection with their construction and infrastructure services. (Doc. 104 at 5-6.) Since July 1, 2003, they have received numerous bills from BellSouth for such damages and, in many instances, have paid the full amount billed. {Id. at 5-7.) In this suit, Hinson and Jensen claim that BellSouth charged more for its repair work than it would have been entitled to recover in an action under Florida law.
Plaintiffs have moved to certify the following class:
All excavators or excavating contractors within the meaning of the Underground Facility Damage Prevention and Safety Act, F.S.A. § 556.101 et seq., who paid a bill from BellSouth for the cost of repairing damage to its underground facilities in Florida during the period from June 28, 2003 through the date of certification.
(Doc. 131 at 8.) Plaintiffs would exclude the following from the proposed class: “Bell-South’s officers, directors and employees; any damagers who have furnished BellSouth with a written release of their claims; and any damagers who have entered into a contract with BellSouth requiring that their claims be arbitrated.” (Id.) Each member of the class would assert claims based on the same four legal theories: violations of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 (FDUTPA), fraud, unjust enrichment, and money had and received. (Id. at 9.)
II. Legal Standard
Before a district court certifies a class, it must find that “all the requirements of Fed.R.Civ.P. 23(a) and at least one of the alternative requirements of Rule 23(b)” have been met. Jackson v. Motel 6 Multipurpose, Inc.,
(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all members 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.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.*642 Fed.R.Civ.P. 23. The movant has the burden of proving that class certification is appropriate under Rule 23. See Hudson v. Delta Air Lines, Inc.,90 F.3d 451 , 456 (11th Cir.1996); Gilchrist v. Bolger,733 F.2d 1551 , 1556 (11th Cir.1984).2
III. Discussion
a. The Requirements of Rule 23(a)
The Court first turns to the requirements of Rule 23(a) in analyzing whether the proposed class may be certified. While Bell-South does not contest all four prongs of Rule 23(a), “a court nevertheless has the responsibility of conducting its own inquiry as to whether the requirements of Rule 23 have been satisfied in a particular ease.” Valley Drug Co. v. Geneva Pharm., Inc.,
1. Numerosity
The numerosity requirement of Rule 23(a)(1) is satisfied if “the class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). “Although mere numbers are not dispositive, the Eleventh Circuit’s general rule is that ‘less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.’ ” Kuehn v. Cadle Co., Inc.,
The numerosity requirement is satisfied in this case. Plaintiffs have submitted evidence that there are more than 6,500 members of the proposed class (Doc. 131 at 4, 10.), and BellSouth does not contest these numbers or the establishment of numerosity under Rule 23(a)(1). Accordingly, the Court finds that joinder is impracticable and numerosity is present.
2. Commonality
“Under the Rule 23(a)(2) commonality requirement, a class action must involve issues that are susceptible to class-wide proof.” Murray v. Auslander,
Plaintiffs have established commonality in this case. BellSouth sent each class member similar bills for the cost of repairing its damaged facilities, and each bill included charges for general corporate overhead and claims processing expenses. This conduct presents several common legal issues, including whether corporate overhead and claims processing expenses are recoverable under Florida law, whether BellSouth’s bills were deceptive, and whether BellSouth acted intentionally.
3. Typicality
“A class representative must possess the same interest and suffer the same injury as the class member in order to be typical under Rule 23(a)(3).” See Murray,
Plaintiffs’ claims are typical of the claims of the class because they all arise from similar BellSouth billing practices and rely on the same legal theories. Although BellSouth contends typicality is not met because proving plaintiffs’ claims would not necessarily prove the claims of each class member (Doe. 146 at 19), plaintiffs are not required to make such a showing. Instead, the named plaintiffs are merely required to show that they “share the issues common to other class members,” a requirement they have easily met. See Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 3:13 at 317 (4th Ed. 2002).
4. Adequacy
“The adequaey-of-representation requirement ‘encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.’ ” Busby v. JRHBW Realty, Inc.,
BellSouth contends, however, that plaintiffs have a substantial conflict of interest with certain class members. According to BellSouth, 183 of the approximately 6,500 members of the proposed class are also operators of underground facilities and thus members of Sunshine State One-Call of Florida, Inc. (“One-Call”), the statutorily created corporation used to process claims for damage to underground facilities under the Florida Underground Facility Damage Prevention and Safety Act, Fla. Stat. § 556.101 (the Damage Prevention Act). According to Bell-South, members of One-Call have an interest in maximizing recovery for facility damage and thus have interests opposed to those of the class representatives. (Doc. 146 at 18-19.)
“It is axiomatic that a putative representative cannot adequately protect the class if his interests are antagonistic to or in conflict with the objectives of those he purports to represent.” Pickett v. Iowa Beef Processors,
The specific issues in this controversy concern whether BellSouth’s billing practices were deceptive, fraudulent, or resulted in unjust enrichment. It is unclear why any class members, including members of One-Call, would benefit from BellSouth’s alleged practice of overcharging for damages caused to BellSouth’s facilities. If plaintiffs’ claims are successful on a class-wide basis, all class members will benefit by recovering the amounts overcharged.
Moreover, there is no evidence that any of the One-Call class members bill excavators that damage their facilities in the same manner as BellSouth. Even if such evidence were presented,
the fact that an illegal [activity] tends to favor the long-term interests of several large members of the putative class is not sufficient to prevent class certification. This is not an interest the law is willing to protect. See 3B Moore’s Federal Practice ¶ 23.06-2 at 23-182 (2d ed. 1993 & Supp. 1994) (a court is not authorized to dismiss a class action based upon a substantial legal claim merely because some members of the class prefer to leave the violation of their rights unremedied) (citing cases).
In re Potash Antitrust Litig.,
Plaintiffs seek to certify their class under Rule 23(b)(3). That rule provides that a class for damages may be certified when:
the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Fed.R.Civ.P. 23(b)(3).
1. Predominance
Plaintiffs must first establish that common questions of law and fact predominate over any individual, plaintiff-specific issues. “ ‘It is not necessary that all questions of fact or law be common, but only that some questions are common and that they predominate over individual questions.’” See Klay v. Huma-na, Inc.,
i. Plaintiffs’ Claims under FDUTPA
“The FDUTPA broadly declares unlawful any unfair or deceptive acts or practices committed in the conduct of any trade or commerce.” True Title, Inc. v. Blanchard, No. 6:06-cv-1871,
BellSouth argues that common questions do not predominate because some class members were aware that BellSouth charged indirect costs such as overhead in its repair bills. According to BellSouth, although plaintiffs need not demonstrate reliance on BellSouth’s allegedly deceptive practices, a member of the proposed class who had actual knowledge of the disputed costs cannot prove causation or damages. (Doe. 146 at 13-14.) BellSouth’s argument, however, conflates the elements of a cause of action under the FDUTPA.
Both of the cases BellSouth relies on in its motion, Hutson v. Rexall Sundown, Inc.,
Similarly, in Green, the plaintiff brought a class action claiming that the defendant had engaged in deceptive advertising with regard to its product, Splenda.
Unlike in the instant case, the plaintiffs in Green and Hutson only suffered damages if they were actually deceived by the defendants’ conduct. Consumers in those cases who purchased the product with full knowledge of its contents received the same product they bargained for and thus were not harmed by the defendant’s deceptive advertising. Unlike the consumers in Green and Hutson, plaintiffs in this case suffered damages by paying BellSouth’s alleged overcharges regardless of their knowledge regarding BellSouth’s billing practices. If BellSouth had not charged the disputed amounts, plaintiffs would have paid Bell-South less for the damage to its facilities. In fact, the court in Green distinguished cases where “each member of the respective class sustained a loss whether or not he relied on the defendant’s alleged violation of FDUP-TA.” Id. at *7.
Rather than affect causation and damages, plaintiffs’ knowledge of BellSouth’s billing practices is instead relevant to the element of deception. To show that a defendant’s conduct was deceptive, a plaintiff must show that the conduct was “likely to mislead [a] consumer acting reasonably in the circumstances,,” Zlotnick,
In the Amended Complaint, plaintiffs allege that BellSouth’s billing practices were deceptive because, among other things, a reasonable excavator would have believed that BellSouth only billed amounts that could be recovered in an action at law. (Doc. 104 at 16-18.) BellSouth has presented no reason to believe that any of the putative class members were aware of the amount of indirect costs charged or that BellSouth was allegedly billing in excess of what it could legally recover. Instead, BellSouth merely contends that some class members were aware that their bills included indirect costs such as overhead.
ii. Plaintiffs’ Fraud Claims [12,13] Under Florida law, “there are four elements of fraudulent misrepresentation: (1) a false statement concerning a material fact; (2) the representor’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation.” Butler v. Yusem,
BellSouth, however, mischaracterizes the issue of reliance in this case. To demonstrate reliance, plaintiffs must show that the putative class members paid BellSouth’s bills in reliance on BellSouth’s representation that the bills reflected the amounts it could recover in an action at law. The issue thus is not whether the putative class members knew that BellSouth’s bills included indirect costs; instead, the question is whether the putative class member knew that BellSouth charged amounts that were not legally recoverable. Although any class member who was aware that BellSouth had overcharged for its repair work would be unable to claim reliance, as discussed above, there is no evidence that any putative class members had such knowledge.
“Under well-established Eleventh Circuit precedent, the simple fact that reliance is an element in a cause of action is not an absolute bar to class certification.” Klay,
iii. Plaintiffs’ Unjust Enrichment and Money Had and Received Claims
“The elements of a cause of action for unjust enrichment are (1) the plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) the defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.” Greenfield v. Manor Care, Inc.,
BellSouth contends plaintiffs’ unjust enrichment claims are not susceptible to class treatment. (Doc. 146 at 20.) BellSouth relies on Vega v. T-Mobile USA, Inc., which states that, “[d]ue to the necessity of [an] inquiry into the individualized equities at
In County of Monroe, Florida v. Price-line.com, Inc., however, the court held that common questions can predominate in unjust enrichment claims where “the defendant’s conduct is the same as to all members of the putative class.”
Although unjust enrichment ordinarily requires individualized inquiries, this is not an ordinary case. As in Priceline.com, Bell-South’s conduct was the same with regard to each class member in all relevant respects. The issue of whether it is equitable for Bell-South to retain the full amount of its bills when such amounts exceeded what BellSouth could recover in an action at law thus appears to be subject to common proof. Bell-South has failed to explain why it would be equitable for it to retain the amounts collected from some of the putative class members, but inequitable to retain the amounts collected from others.
iv. BellSouth’s Counterclaims
BellSouth contends that, even if liability under plaintiffs’ claims is subject to common proof, its counterclaims will raise numerous issues requiring individual determinations that will predominate over plaintiffs’ claims. Although the Court has dismissed most of the counterclaims on jurisdictional grounds, including all counterclaims against the putative class members, the counterclaims against the named plaintiffs for damages arising from incidents for which plaintiffs paid BellSouth’s bills are compulsory. (Doc. 168.) “In determining whether individual or collective issues predominate, we look not only to the plaintiffs allegations, but also to any compulsory counterclaims.” Klay,
BellSouth’s compulsory counterclaims against the named plaintiffs will not predominate over plaintiffs’ claims. Although these counterclaims relate to seventeen separate incidents of damage to BellSouth’s facilities, the claims will be significantly streamlined by the procedures set out in the Damage Prevention Act. Litigation of the counterclaims will thus primarily concern damages, and common questions of damages are likely to predominate. While the counterclaims will require some individualized determinations, “[i]t is not necessary that all questions of fact or law be common, but only that some questions are common and that they predominate over individual questions.” See Klay,
BellSouth also argues that, even if its counterclaims are dismissed, the same issues will be raised in its affirmative defense of set-off, thus precluding certification on predominance grounds. “A set-off is a permissive counterclaim____that is interposed defensively ... to defeat or reduce a plaintiffs recovery but which does not seek affirmative relief.” Allapattah Services, Inc. v. Exxon Corp.,
BellSouth’s set-off rights, however, do not defeat certification. “Courts traditionally have been reluctant to deny class action status under Rule 23(b)(3) simply because affirmative defenses may be available against individual members.” Smilow v. Sw. Bell
2. Superiority
The second prong of Rule 23(b)(3) requires the plaintiffs to demonstrate that “a class action is superior to other available methods for the fair and efficient adjudication of the [claims].” Fed.R.Civ.P. 23(b)(3). The rule lists four factors the Court should consider in assessing superiority:
(A) the interest of 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 the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the management of a class action.
Id.
There is no indication that any class members are separately pursuing other cases involving the same controversy. The parties also have not identified any interest the class members may have in individually controlling separate actions. Similarly, no party has argued that it would be desirable to litigate any claims in a different forum. Considering that the Court has already addressed a host of preliminary matters in this case (including motions to remand, to dismiss, and for summary judgment), it seems appropriate to adjudicate these claims here. See Klay,
BellSouth does, however, contest the manageability of the class. (Doc. 146 at 16.) Among other concerns, BellSouth states that it will be difficult to identify which class members actually paid BellSouth’s bills. According to BellSouth, many bills were paid by insurers and many class members were reimbursed. (Id.)
When determining if a class action is superior, “we are not assessing whether this class action will create significant management problems, but instead determining whether it will create relatively more management problems than any of the alternatives (including, most notably, [thousands of] separate lawsuits by the class members).” Klay,
ORDERED:
1. Plaintiffs’ Motion for Class Certification (Doc. 131) is GRANTED.
A. The Court hereby certifies the following class under Rule 23(b)(3):
i. All excavators or excavating contractors within the meaning of the Underground Facility Damage Prevention and Safety Act, F.S.A. § 556.101,
ii. who paid a bill from BellSouth for the cost of repairing damage to BellSouth’s underground facilities in Florida
iii. during the period from June 28, 2003 through March 28, 2011,
iv. with the following exceptions: Bell-South’s officers, directors and employees; any damagers who have furnished Bell-South with a written release of their claims; and any damagers who have entered into a contract with BellSouth requiring that their claims be arbitrated.9
B. The class is certified with respect to plaintiffs’ claims in Counts I-TV for violations of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201, fraud, unjust enrichment, and money had and received.
2. The Court may establish sub-classes on the question of damages after liability is determined to address BellSouth’s set-offs and counterclaims.
3. James D. Hinson Electrical Contracting Co., Inc. and Jensen Civil Contracting Co., Inc. are hereby certified as class representatives.
4. Kenneth S. Canfield, David S. Hagy, and John S. Kalil are hereby certified as Class counsel.
5. No later than April 7, 2011, plaintiffs shall submit to the Court for approval a proposed notice to the class members in accordance with Federal Rule of Civil Procedure 23(c)(2)(B). Plaintiffs shall also identify and describe any measures they propose to take to locate and notify potential class members. Prior to filing this proposed notice, plaintiffs shall confer with Defendant in an attempt to agree on the language of the class notice. If an agreement is not reached, Bell-South may file objections to plaintiffs’ proposed notice or submit an alternative proposed notice no later than April 14, 2011. To the extent BellSouth has not already done so, it is directed to make available to plaintiffs all evidence in its possession that may assist plaintiffs in locating members of the class. The issue of class notice will be discussed at the April 18, 2011 status conference.
Notes
. Before proceeding to determine class certification, the Court determined that plaintiffs’ claims are viable. (Docs. 97, 167.)
. The named plaintiffs must also demonstrate that they “personally suffered injury" with respect to each claim to establish standing. See Griffin v. Dugger,
. Rather than, challenge commonality, BellSouth argues that common questions do not predominate under Rule 23(b). The issue of predominance is a separate inquiry addressed below.
. In Egwuatu, for example, the plaintiffs alleged that the defendant, a chain of oil service stations, violated the FDUTPA by charging an "environmental fee” without disclosing that the fee was not a tax. The court held that class certification was inappropriate because the circumstances in which the plaintiffs were charged the fee varied and some plaintiffs should have been aware that the fee was not a tax. Id. at 53-54. Because a consumer acting reasonably in such circumstances would not have been misled, the court held that individual issues predominated over the issue of whether the defendant's actions were deceptive.
. As evidence, BellSouth claims: (1) some plaintiffs discussed their bills with BellSouth; (2) many plaintiffs are sophisticated business entities; and (3) some billing forms indicated that "indirect costs” were included. (Doc. 146 at 13.) BellSouth has identified 168 occasions in which it discussed its damage calculations with putative class members. According to Bell-South, "it is reasonable to assume that during these conversations, overheads and indirect costs were discussed.” (Doc. 146 at 5.) This evidence, however, does not show that any putative class member knew that BellSouth allegedly billed more than it was entitled to recover.
. Although Florida courts have found that “multiple claims of intrinsic fraud cannot meet the test of commonality” under Florida class action law, see Egwuatu,
. Although equitable differences could exist for class members who knew that BellSouth was charging amounts that it could not recover in an action at law, as explained above, BellSouth has presented no evidence that any of the class members had such information.
. Plaintiffs alternatively seek to certify the class under Rule 23(b)(2). That Rule provides that certification is appropriate where: "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed.R.Civ.P. 23(b)(2). Certification un
. Under Rule 23(c)(1)(C), this class is subject to decertification or adjustment as appropriate before a final judgment is rendered.