*1 documents, contains which one of regard its with abused discretion According- in issues this case. is not relevant to the ordinary product work and in and part, reversed part trial court affirmed ly, judgment opinion. this consistent with turned over to Hohler are to be the documents in part affirmed Judgment part, and reversed cause remanded. and JJ., concur. Vukovich, Donofrio al., Appellants,
MAESTLE et
al., Appellees.
et
BUY COMPANY
BEST
App.3d
No. 96265.
Decided Nov. *2 Ruschel; Brian and Dworken & L.P.A., Bernstein Perotti, and Patrick J. for appellants. Berne,
Ulmer L.L.P., & Michael Ungar, N. Isaac J. Eddington, and David D. Yeagley; Sater, and Yorys, Pease, Seymour L.L.P., & and Anthony J. O’Malley, for appellees.
Frank D. Judge. Jr., Celebrezze Plaintiff-appellant, Maestle, Shawn W. appeals from the judgment of the Cuyahoga County Court of Common Pleas denying his Civ.R. 23 motion for class certification. reasons, For the following we affirm the judgment of the trial court. Appellant’s suit against One, defendants-appellees, N.A., Bank and Best
Buy Company (collectively, “defendants”), related to his purchase of consumer products from Best Buy using Buy Best “private-label” credit card. Best Buy, a large retail seller of consumer products, has in the past designated certain banks to establish private-label credit cards for its customers’ use. One such private-label program card was run Bank One from 1990 to 1998. On December Bank One all private transferred its label Best Buy credit- Buy private- Best and not administered to a bank has accounts different card since that date. accounts label governed by written credit cards private-label Bank One’s
3}{¶ they applied for store when received the Best that cardholders agreement card The credit allowed the card was delivered. and in the mail when the card paying credit avoid interest certain items on and customers to purchase Best Custom- “promotional period.” within a set paid if was completely the purchase receipt their which of two sales purchases made such were informed ers who “optional financing plans” separate and plans received applied of each obligations plan. and that described the benefits disclosure through the card promotional plans offered general categories The two 4}{¶ former, as cash.” With interest” “same pay/deferred were “no *3 required. which no was during payment a enjoyed promotional period customer contrast, but the promotional period, plan, year-long had The same-as-cash that monthly payments during minimum time. required to make buyer was 13, 2000, against suit the defendants on appellant filed September On {¶ 5} contract, fraud, situated, similarly alleging and breach of behalf himself others of Act. Specifically, of the Sales Practices violations Ohio Consumer and that alleged improperly: defendants complaint (1) having promotions by as cash” their denied the benefit “same (when they multiple promotional had allocated payments
credit-card period; outstanding) expiring promotional the balance with the latest balances to (2) charge” promotional pur- minimum on monthly assessed “a amount, cents, any agreement amount or other when the made in the of 50 chases charges; no for such or provision (3) balance, assessed, accruing interest promotional-credit-card on a
8}{¶ day following than from first from transaction date rather the retroactively the of the promotional period. the expiration 23, 2006, pursuant for class to appellant moved certification On June
9}{¶ 23, 10,000 subject Buy’s to Best stating alleged that over people Civ.R. 9, 2007, trial court charges. February hearing the scheduled improper On 26, 11, 2007, February for defendants moved On April class certification hearing. moved to the class-certification On summary judgment stay for and 2, 2007, stay motion class certification. April the trial court denied defendants’ 10, 2007, hearing trial court rescheduled class-certification On April the trial noted that no By journal entry May dated May 2, 2007, that would its stated the court “make hearing May oral was held on and On December days.” class within approximately as to certification ruling for later, trial motion class years three court denied over certification, stating appellant could not establish requirements for class certification except numerosity. Appellant appeals court, from the judgment of the trial raising
{¶ one 10} assignment of error for review. Analysis
Law and error, In his assignment sole appellant argues that {¶ “the trial court 11} erred in ordering and determining this action may not be maintained as a class action.” 23(A) Civ.R. permits courts to group into classes large numbers of
persons whose claims for rights or remedies
questions
involve common
of law and
fact.
implicit
Two
prerequisites to certification of a class action under Civ.R.
23(A)
(1)
(2)
are
that there
an unambiguous,
be
identifiable class and
that the
class representatives
23(A)
addition,
be members of that class.
In
Civ.R.
sets
forth four explicit requirements that must be met before a
may
be certified.
(1)
The moving party must establish that
the class is so
that joinder
numerous
(2)
all members is impracticable,
there are questions of law or fact common to the
(3)
class,
the claims or defenses of the representative parties
typical
are
(4)
class,
claims or defenses of the
representative
party or parties will
fairly and adequately protect the interest of the class.
Hamilton
Ohio Sav.
Bank
action conforms least one of actions, the three categories of as set forth in *4 23(B), Civ.R. that qualify for class treatment. Id. An action may brought be as a (1) class action if a series of separate actions would create a risk of inconsistent adjudications or incompatible standards of conduct for the party opposing the (2) action, class injunctive relief would be an appropriate remedy for the entire (3) class, or common questions of law or fact predominate over questions involving only individual members of the class and class treatment is the superior 23(B). method of resolving the controversy. Civ.R. Class action ais creature of equity, so the plaintiff
{¶ 14}
bears the
burden of
establishing
right to a class action. Shaver v.
(1990),
Std. Oil Co.
783,
68
App.3d
Ohio
Ohio St.3d court. of the trial part on the attitude unreasonable, arbitrary, or unconscionable Id. support arguments raise number defendants Although 16}
{¶ of them certification, not discuss each we need class denial of the trial court’s class prerequisite. to the identifiable relating analysis of our light above, that an identifiable requires stated Civ.R. As This unambiguous. be of the class must the definition exist and must “ is description class] of [the satisfied unless ‘willnot be deemed requirement to for the court administratively feasible it sufficiently definite so Alan 7A Charles is a member.’ individual particular whether determine (2d Kane, and Procedure Federal Practice Mary Kay Arthur R. Miller & Wright, Thus, precise must be class definition Ed.1986), 120-121, Section Warner Waste [v. within a reasonable effort.’ identification enough permit ‘to Hamilton, (1988) 91], 96, 82 Ohio 521 N.E.2d [1091].” Mgt., Inc. a class should be defined 71-72, possible, 442. When 694 N.E.2d St.3d at Id. at 73. conduct. reference to the defendant’s for the class: following definition proposed Appellant 18}
{¶ 1985 were Best any September time after persons “All who card, assessed interest or customers, who were: with a Best credit each (or any of 50 cents other monthly charge finance a minimum charges; finance day first earlier than the amount); purchases charges promotional finance or finance assessed interest period; or expiration after days.” of 90 prior expiration charges upon payments demanded to show an identifiable failed appellant trial court concluded The 20} {¶ unambiguous class because: who it all account holders overbroad as includes class is “[Appellant’s regard without charges’ present, from 1985 ‘assessed interest or were practices the account related subject said account holders to whether class includes Additionally, proposed [appellant’s in the alleged complaint. or issued credit cards not administered unrelated label private account holders of by defendants.” by conclud- trial court abused its discretion that the Appellant contends *5 it would be argues class and was not an identifiable
ing there
person
was member
particular
whether
administratively feasible to determine
available records.
readily
defendants’
by looking
class
the
us,
with the trial court.
agree
we
However,
review of the file before
upon
case,
in the definition indicates
used
language
In this
the
purported class would include all account holders who were
interest or
charged
reason,
finance
for
charges
even if the charged interest or finance charges
were unrelated to
alleged
account
improper
practices relating
purchases. Therefore, the definition
Buy
would include Best
card holders who
were justifiably assessed interest or
charges
finance
and consequently suffered no
injury as
in
alleged
the complaint.
parties
Such
would include those who failed to
monthly payments
make
according to the written agreement or those who failed
to pay the cost of the purchased
goods
consumer
within the applicable promotion-
al period. To include “all” those who were assessed
or
charges
interest
overly broad and ambiguous as a matter of law. See Miller v.
Supply
Painters
&
¶
Equip.
Cuyahoga
95614,
persons
injured
who were
by the
allegedly
defendants’
improper
handing
would be
subset of the class rather than the class. “If this
type
class were
permitted, plaintiffs would be able to define a class as
as
in
broadly
possible
hope of netting a certain percentage
injured
Petty
members.”
v. Wal-Mart
Stores
148 Ohio App.3d
purported class is illustrated by the fact that the definition does not include any co-defendant, reference to Bank One. appellant Because has join failed to other action, banks in this class, effect, purported would include all Best account holders since 1985 without consideration of whether Bank One was fact the entity that private-label issued the card and despite the fact that Bank One operated the Best private-label only card from 1990 to 1998. While we acknowledge availability records, defendants’ account
we disagree with appellant’s position that each member of the class could be
readily identified merely because such
view,
records exist.
In our
the overly
broad
nature of
current class
require
would
the lower court to conduct
an
inquiry
individualized
with respect
to each individual’s account in order to
determine whether that
injured and, therefore,
individual was in fact
a proper
member
the class.
Servs.,
Barber v. Meister Protection
No.
App.
81553,
WL Hoang v. E*Trade Group, 151 Ohio App.3d 2003-Ohio- *6 254 Servs., Franklin App. Family 151; Dept. Job & v. Bungard N.E.2d 784 of 242550. 05AP-43, 2006 WL to deter- required be fact-finding would When, here, as individualized
{¶ 27} overly the upon based practices alleged improper to the subjected mine who was definition, prerequi- class fails the identifiable of the class nature broad site. its discretion did not abuse Therefore, that the trial court conclude we
{¶ 28} basis, we On for class certification. 23 motion Civ.R. denying appellant’s raised arguments remaining error. The of assignment first appellant’s overrule our foregoing to pursuant of error are moot assignment sole within analysis.
Judgment affirmed. Blackmon, J., concurs.
Kilbane, A.J., dissents.
Mary dissenting. Judge, Administrative Kilbane, Eileen has established appellant I would find I dissent. respectfully an identifiable class. broad overly class definition is majority The concludes charged interest or holders who were includes “all account appellant
because reason, charges interest or finance charged if the for even charges relating practices alleged improper to the were unrelated trial court require that this definition would majority The found purchases.” account. respect with to each inquiry an individualized to conduct identify a class certification However, require 23 does not “Civ.R. members[,] provides long so as the certification are individuals who specific Cincinnati, Inc. Parenthood Assn. Planned identify persons.” means to such 56, 63, citing Wright, 7A (1990), 556 N.E.2d 52 Ohio St.3d Jericho Project 115, 118; (1986), at Kane, & Procedure Section Federal Practice Miller & 91, 96, 1091. (1988), 521 N.E.2d Ohio St.3d Inc. Mgt, v. Waste Warner test is class is defined. ‘The is on how the Rather, stage focus at this “[t]he whether of certification to determine at the time specified the means is whether Parenthood Assn. the class.’ Planned a member of individual is particular 556 N.E.2d 52 Ohio St.3d Cincinnati, Project Inc. v. Jericho issues legal factual and differing there are to whether The as question to consider the Civ.R. begins until the analysis enter into the not ‘do[es] [Marks, at 31 Ohio St.3d 23(B)(3) superiority.’ requirement predominance Hamilton, 694 N.E.2d 1249.]” 509 N.E.2d Hamilton, In plaintiffs sought certification with respect groups bank customers who had mortgage obtained loans from the defendant-bank and had been interest at rates other than charged those set forth the loan agreements. proposed The classes were defined in terms of charges imposed *7 argued customers. The bank that the class definition was indefinite proposed it necessary because would be to make individual inquiries about each individual subjective class member’s intent and awareness of his or her loan terms in order to determine whether the part individual was of the class. The Supreme Ohio rejected Court this argument, finding that is difficult to that accept “[i]t individu- al knowledge inquiries required case, are in membership determine class this when ascertain, effort, was able to [the defendant-bank] with a reasonable two thousand seven hundred prospective class members without inquiring as to then- knowledge or of understanding the terms of agreements.” their Id. at 74. Likewise, case, in the instant the trial court only need look to Best Buy’s names, addresses, records of the and transaction details for each class member to determine whether an individual is a appellant’s member of proposed class. See Inc., also Washington v. Spitzer Mgt., 81612, Cuyahoga App. No.
79827,
{¶ the class action mechanism 35} is to overcome the problem small provide recoveries do not the incentive for any individual to a solo bring action or prosecuting rights. his her A class action solves problem by this aggregating relatively paltry potential recoveries into something worth (usually Prods., someone’s an attorney’s) labor.’ Inc. [Amchem
256
689],
Mace
quoting
L.Ed.2d
S.Ct.
521 U.S.
v. Windsor
Here,
cardhold-
(C.A.7, 1997),
each
109 F.3d
344.”
Corp.
v. Van Ru Credit
Thus,
action treatment would eliminate
less than
damages
“[c]lass
are
$50.
er’s
providing
while
judgments,
inconsistent
varying
of
or
danger
any potential
individually would be
who
groups
people
rights
for the vindication
forum
Hamilton,
their claims.”
litigate
strength
without effective
N.E.2d
trial court.
judgment of the
I would reverse the
Accordingly,
36}
{¶
Ohio, Appellee,
The
STATE
*8
ROSEBERRY, Appellant.
Roseberry,
App.3d
[Cite Ohio, Appeals Court of District, County. Eighth Decided Nov.