Blake Williams v. Oberon Media, Inc. , 468 F. App'x 768 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 22 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLAKE R. WILLIAMS, an individual; No. 10-56255
PEGGY J. McGREGOR, an individual, for
themselves and on behalf of all others D.C. No. 2:09-cv-08764-JFW-
similarly situated, AGR
Plaintiffs - Appellants,
MEMORANDUM*
v.
OBERON MEDIA, INC., a Delaware
corporation; DOES 1 THROUGH 10,
INCLUSIVE,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted February 14, 2012
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FARRIS and W. FLETCHER, Circuit Judges, and HELLERSTEIN,
Senior District Judge.***
Plaintiffs Blake R. Williams, Peggy J. McGregor, Candice K. Schutz, Mark
Lindsey, and Barbara Jean Parks appeal the district court’s denial of their motion
for class certification. Plaintiffs sought class certification for seven sub-classes in
their consumer class action against online game designer and retailer Oberon
Media, Inc. (“Oberon”). The district court denied certification to all seven classes.
We have jurisdiction under 28 U.S.C. § 1367(a), and we affirm the district court.
We review the denial of class certification for abuse of discretion. Knight v.
Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 816 (9th Cir. 1997).
The district court did not abuse its discretion in finding that Classes One,
Two, and Seven are not “precise, objective or presently ascertainable.” O’Connor
v. Boeing N. Am. Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998). As to Classes One
and Two, Plaintiffs failed to establish an objective way of determining which
GameSaver members failed to receive their monthly subscription game or enrolled
in the GameSaver program because of errors in Oberon’s computer system as
opposed to the consumers’ own errors or preferences. As to Class Seven, Plaintiffs
***
The Honorable Alvin K. Hellerstein, Senior U.S. District Judge for the
Southern District of New York, sitting by designation.
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did not establish an objective way to determine which GameSaver members were
unable to cancel their membership due to Oberon system errors and which
GameSaver members actually wanted to continue their memberships.
Nor did the district court abuse its discretion in determining that no named
plaintiff satisfied the typicality and adequacy requirements of certification for
Classes Four and Six. See Fed. R. Civ. P. 23(a)(3)-(4). As to Class Four, neither
of the proposed named plaintiffs alleges that she were billed multiple times for a
single game purchase. The proposed named plaintiff for Class Six never had her
subscription renewed because she commenced this lawsuit before her membership
term was complete.
Finally, the district court did not abuse its discretion in determining that
Classes Three and Five were not certifiable because “questions of law or fact
common to class members [did not] predominate over any questions affecting only
individual members.” Fed. R. Civ. P. 23(b)(3). For example, the district court
found that evaluating the claims of Class Three would require the court “to
determine whether Oberon’s acts or omissions, rather than some other factor” was
the cause of each customer’s additional GameSaver memberships. As to Class
Five, the information Oberon provided to its customers concerning the cross-
border nature of their purchases varied over time and from website to website.
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Further, the consumers’ individual credit card contracts would determine whether
or not a foreign transaction fee would apply to those transactions, not a uniform
Oberon policy.
On appeal, Plaintiffs also suggest that the district court abused its discretion
in denying Plaintiffs leave to amend, in refusing to grant Plaintiffs an extension to
file their class certification motion, and in denying Plaintiffs’ application to file
documents under seal. Reviewing the record, we do not find any of these decisions
to be an abuse of discretion.
AFFIRMED.
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