United States District Court, M.D. Florida, Tampa Division
KARA TEGGERDINE, individually and on behalf of all others similarly situated, Plaintiff,
SPEEDWAY, LLC and WORLDPAY U.S. INC., Defendants.
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE
THE COURT is Plaintiffs Motion for Class
Certification (Dkt. 58), which Defendants oppose (Dkt. 65).
Argument was heard on April 26, 2018. Upon consideration,
Plaintiffs motion is DENIED.
purported class action arises from the implementation of a
payment processing program, the Real Time Clearing program
("RTC"), at Speedway's retail gasoline
convenience stores on November 16 and 17, 2016, and the
preauthorization requests and holds placed on customers'
accounts who purchased gasoline at the pump. Plaintiffs
Amended Complaint included claims of negligence, breach of
implied contract, unjust enrichment, and violations of the
Florida Deceptive and Unfair Trade Practices Act. (Dkt. 48).
Defendants' motion for summary judgment was granted on
all claims except Plaintiff s negligence claim, and the case
is proceeding on that claim. (Dkt. 94).
moves for class certification under Rule 23(b)(3) for this
All persons residing in the United States who made a gasoline
purchase with a Visa payment card at a Speedway station from
November 16, 2016 through and including December 31, 2016,
and had a $125 authorization hold placed on their personal
she seeks certification under Rule 23(c)(4) on certain
CLASS CERTIFICATION STANDARD
class action is 'an exception to the usual rule that
litigation is conducted by and on behalf of the individual
named parties only.'" Wal-Mart Stores, Inc. v.
Dukes, ___ U.S. ___, ___, 131 S.Ct. 2541, 2550, 180
L.Ed.2d 374 (2011) (quoting Califano v. Yamasaki,
442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)).
Accordingly, the burden of establishing the propriety of
class certification rests with Plaintiff, the advocate of the
class, who must "affirmatively demonstrate [her]
compliance with [Rule 23]." Brown v. Electrolux Home
Prod., Inc., 817 F.3d 1225, 1231 (11th Cir. 2016),
quoting Vega v. T-Mobile USA, Inc., 564 F.3d 1256,
1232 (11th Cir. 2009); Valley Drug Co. v. Geneva Pharms.,
Inc., 350 F.3d 1181, 1187 (11th Cir. 2003); Jones v.
Diamond, 519 F.2d 1090, 1099 (5th Cir. 1975).
may be certified only if (1) the class is so numerous that
joinder of all members would be impracticable; (2) there are
questions of fact and law common to the class; (3) the claims
of the representatives are typical of the claims of the
unnamed members; and (4) the named representatives will be
able to represent the interests of the class adequately and
fairly. Fed.R.Civ.P. 23(a). These prerequisites to class
certification are referred to as "numerosity,
commonality, typicality, and adequacy of representation,
" and are "designed to limit class claims to those
fairly encompassed by the named plaintiffs' individual
claims." Prado-Steiman exrel Prado v. Bush, 221
F.3d 1266, 1278 (11th Cir. 2000).
addition to the requirements of Rule 23(a), at least one of
the three alternative subsections of Rule 23(b) must be
satisfied. Babineau v. Fed Express Corp., 576 F.3d
1183, 1190 (11th Cir. 2009). Plaintiff seeks certification
under Rule 23(b)(3), which requires her to demonstrate (1)
that questions of law or fact common to class members
predominate over questions affecting only individual members,
and (2) that a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy. Id. Failure to establish any of the
required elements of Rule 23(a) or Rule 23(b)(3) precludes
class certification. Valley Drug Co., 350 F.3d at
1188 (citing Amchem Prods., Inc. v. Windsor, 521
U.S. 591, 615-18, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)).
proof is required to satisfy the provisions of Rule 23.
Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013).
And, Plaintiff bears the burden of showing that the proposed
class satisfies Rule 23 by a preponderance of the evidence.
See Messner v. Northshore Univ. Health Sys., 669
F.3d 802, 811 (7th Cir. 2012); In re Hydrogen Peroxide
Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2009);
Teamsters Local 445 Freight Div. Pension Fund v.
Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008). Even
when the parties have not contested an element of Rule 23,
"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 case."
Valley Drug, 350 F.3d at 1188.
outset of the hearing, Plaintiff limited the scope of her
class to a liability only class, leaving the issues of
causation and damages to be determined on an individualized
basis by an alternative method such as a special master. And
she announced that she would seek only nominal damages.
class certification analysis begins with the issue of
standing. Prado-Steiman, 221 F.3d at 1280.
"'[A] class representative must be part of the class
and possess the same interest and suffer the same injury as
the class members."' Id. at 1279 (citations
omitted). Only after determining whether the named plaintiff
has standing can it be determined whether the named plaintiff
has representative capacity to assert the rights of others.
Id. at 1280. "[A] plaintiff must allege and
show that [s]he personally suffered injury." Griffin
v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). A
plaintiff must demonstrate individual standing and "be
part of the class and possess the same interest and suffer
the same injury as the class members." Mills v.
Foremost Ins. Co., 511 F.3d 1300, 1307 (11th Cir. 2008)
(quoting Prado-Steiman, 221 F.3d at 1279).
contend that Plaintiff lacks standing as a putative class
representative because she did not suffer a concrete injury,
cannot represent class members injured outside Florida, and
her injury from the $125 preauthorization request is distinct
from a credit card user's injury, as well as those
customers who had more than $125 in their bank account.
Plaintiff counters that she suffered the same injury as
others in the proposed class, the loss of use of her money.
describes her injury as the denial of use of her funds
resulting from Defendants' implementation of RTC and the
$ 125 preauthorization request made by Speedway, and the time
and effort she spent attempting to resolve that. This
description is sufficient to show a concrete injury to
sustain Article III standing. See Pedro v. Equifax,
Inc., 868 F.3d 1275, 1280 (11th Cir. 2017) (finding a
concrete injury where plaintiff '"lost time . . .
attempting to resolve the credit inaccuracies'").
Plaintiff, part of the proposed class, possesses the same
interest and same injury as the proposed class members.
Mills, 511 F.3d at 1307. She therefore has standing
to represent the class.
Adequately Defined and Clearly Ascertainable
next step in the rigorous class certification analysis is
determining whether the proposed class is
'"adequately defined and clearly
ascertainable.'" Carriuolo v. Gen. Motors
Co., 823 F.3d 977, 984 (11th Cir. 2016) (citation
omitted). The class members must be ascertained by objective
criteria. See Bussey v. Macon Cty. Greyhound Park,
Inc., 562 F. App'x. 782, 787 (11th Cir. 2014). And,
the process should be "administratively feasible, "
meaning "that identifying class members is a manageable
process that does not require much, if any, individual
inquiry." Id. at 787-88 (citation omitted).
proposed class members, individuals residing in the United
States who purchased gasoline at the pump during an
identified time frame and who had a $125 authorization hold
placed on their accounts, are ascertainable by
administratively feasible and objective criteria. Defendants
identified approximately 400, 000 VISA transactions by
customers who were not notified of the $ 125 preauthorization
request. Worldpay's corporate representative testified
that a partial card number, the issuing bank, the transaction
amount, and the transaction location can be retrieved from
its records. (Fengler Dep. 55:19-57:7, Dkt. 58-8). Plaintiffs
expert, Charles Marr, Esq. avers, based on his review of
documents produced in discovery, that his firm is able to
identify class members in a manageable process. (Marr Decl.,
Dkt. 58-2). And while Defendants contend that the class
definition is "unworkable" because it includes
individuals who "experienced no impact" from RTC,
that contention goes to whether questions of individual
damages predominate, not whether the class is adequately
defined and clearly ascertainable. Comcast Corp. v.
Behrend, 569 U.S. 27, 34 (2013). Moreover,
Defendants' contention is negated by Plaintiff having
limited class certification to the issue of liability and
seeking only nominal damages.
Defendants contend that class members are not clearly
ascertainable because they do not "store or maintain
full payment card numbers, " (Claar Decl. ¶ 7, Dkt.
65-6), and in order to obtain the full card number, it must
"reverse engineer" one card number at a time,
(Fengler Decl. ¶ 7, Dkt. 65-7). Defendants, however, do
not explain why a full payment card number is necessary to
identify class members or why the time and expense associated
with determining the full payment card number renders the
class definition administratively unfeasible.See Bussey v.
Macon County Greyhound Park, Inc., 562 Fed.Appx. at 788
(reports generated provided sufficient data to identify class
members). Indeed, Defendants have already identified the