Just Film, Inc. v. Sam Buono

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUST FILM, INC.; RAINBOW No. 14-16132
BUSINESS SERVICES, DBA
PRECISION TUNE AUTO CARE; D.C. No.
VOLKER VON GLASENAPP; JERRY 4:10-cv-01993-CW
SU; DIETZ TOWING INC.; THE
ROSE DRESS INC.; VERENA
BAUMGARTNER; TERRY JORDAN;
LEWIS BAE; ERIN CAMPBELL,
Plaintiffs-Appellees,
v.
SAM BUONO; JAY COHEN; SARA
KRIEGER; MBF LEASING LLC;
LEONARD MEZEI; NORTHERN
FUNDING, LLC; NORTHERN
LEASING SYSTEMS, INC.; SKS
ASSOCIATES LLC,
Defendants-Appellants.
2 JUST FILM V. BUONO
RAINBOW BUSINESS SERVICES, No. 14-16133
DBA Precision Tune Auto Care;
VOLKER VON GLASENAPP; JERRY D.C. No.
SU; DIETZ TOWING INC.; THE 4:10-cv-01993-CW
ROSE DRESS INC.; VERENA
BAUMGARTNER; TERRY JORDAN;
LEWIS BAE; ERIN CAMPBELL, OPINION
Plaintiffs-Appellees,
v.
SAM BUONO; JAY COHEN; SARA
KRIEGER; MBF LEASING LLC;
LEONARD MEZEI; NORTHERN
FUNDING, LLC; NORTHERN
LEASING SYSTEMS, INC.; SKS
ASSOCIATES LLC,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted September 15, 2016
San Francisco, California
Filed February 7, 2017
JUST FILM V. BUONO 3
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges, and John R. Tunheim,* Chief District Judge.
Opinion by Judge Gould
SUMMARY**
Class Certification
The panel affirmed the district court’s orders certifying
two national classes pursuant to Federal Rule of Civil
Procedure 23(b)(3) in an action under RICO, the Fair Credit
Reporting Act, and state law.
Small businesses and small business owners who leased
“point of sale” credit and debit card processing equipment
alleged that the “Leasing Defendants,” a group of entities that
financed their acquisition of the equipment, defrauded them
in a scheme that involved equipment leases and credit card
processing services.
The panel held that the district court did not abuse its
discretion in certifying the “SKS Post-Lease Expiration
Class” and the “Property Tax Equipment Cost Basis Class” to
pursue claims under RICO and California state law. The
panel held that plaintiffs established typicality, commonality,
*
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 JUST FILM V. BUONO
and predominance for the SKS Post-Lease Expiration Class.
The plaintiffs established commonality, predominance, and
superiority for the Property Tax Equipment Cost Basis Class.
COUNSEL
Thomas J. Kavaler (argued), Cahill Gordon & Reindel LLP,
New York, New York; Robert D. Lillienstein and Scott E.
Silberfein, Moses & Singer LLP, New York, New York; Rod
Divelbiss, JRA Law Partners LLP, San Francisco, California;
for Defendants-Appellants.
Adam J. Gutride (argued) and Seth A. Safier, Gutride Safier
LLP, San Francisco, California, for Plaintiffs-Appellees.
OPINION
GOULD, Circuit Judge:
Plaintiffs-Appellees are small businesses and small
business owners who leased “point of sale” credit and debit
card processing equipment. They allege that Defendants-
Appellants (the “Leasing Defendants”) defrauded them in a
scheme that involved equipment leases and credit card
processing services. Plaintiffs moved to certify five national
classes with California-based subclasses under Federal Rule
of Civil Procedure 23(b)(3). Of the five proposed national
classes, the district court certified two: the “SKS Post-Lease
Expiration Class” and the “Property Tax Equipment Cost
Basis Class.” Leasing Defendants appeal the district court’s
orders certifying these two classes.
JUST FILM V. BUONO 5
Because we conclude that the district court did not abuse
its discretion in certifying the SKS Post-Lease Expiration
Class and the Property Tax Equipment Cost Basis Class, we
affirm.
I
A. Background
Plaintiffs are small businesses and small business owners
who leased “point of sale” credit and debit card processing
equipment, such as swipe terminals and pinpads. Plaintiffs
allege that Leasing Defendants, a group of entities who
financed their acquisition of the equipment, defrauded them
in a scheme involving equipment leases and credit card
processing services.
Plaintiffs describe the alleged fraud that swindled them as
follows: Credit and debit card transactions are processed
through financial networks called interchanges that are run by
entities such as Visa and Mastercard. Financial institutions
may become members of the interchange and can then sell
card processing services directly to merchants or indirectly
through entities known as Independent Sales Organizations
and Merchant Service Providers (“ISOs/MSPs”). ISOs/MSPs
must be licensed and registered with the financial institutions
and both Visa and Mastercard. Merchants must acquire
specific equipment necessary to process credit and debit card
transactions and must also pay a fee for each transaction.
Plaintiffs allege that Leasing Defendants conspired with
the ISO/MSP Defendants (the “Merchant Service
Defendants”) to market fraudulent, long-term equipment
leases and credit card processing services to merchants.
6 JUST FILM V. BUONO
Merchant Service Defendants sought merchants and induced
them to enroll in such leases through “a series of deceitful
misrepresentations and forged documents,” whereby
merchants paid fees in excess of standard industry rates. The
high lease costs did not pay for the equipment, but instead,
primarily went toward Merchant Service Defendants’
commissions for securing the leases and toward Leasing
Defendants’ profits.
1. The Post-Lease Tax Collection Scheme
More specifically, Plaintiffs allege that in 2011, Leasing
Defendants conspired among themselves to defraud former
lessee merchants by collecting or attempting to collect taxes
that were not actually due or paid to any taxing authority.
Leasing Defendants calculated property taxes using
inaccurate tax information, such as the wrong property tax
base and incorrect years that lessees were enrolled in the
leases, and compiled the results in a spreadsheet called
Schedule 1. Schedule 1 listed more than 107,000 merchants
owing over $10 million in back property taxes and
administrative fees. Leasing Defendants next instructed a
third party to send a form letter to the former lessees telling
them that Defendant SKS Associates LLC had acquired
collection rights, and deductions would occur based on the
purported back taxes merchants owed. Leasing Defendants
collected the taxes and fees from merchants with expired
leases by making misrepresentations to third party processors
and causing processors to authorize Automated Clearing
House (“ACH”) withdrawals from the merchants’ bank
accounts. Many accounts were actually debited, but Leasing
Defendants could only attempt to debit closed bank accounts
associated with expired leases. Leasing Defendants also
created a network of shell companies to “ensure[] that their
JUST FILM V. BUONO 7
unlawful acts remain hidden and that victims and the courts
are unable to identify the responsible party.”
Plaintiff Erin Campbell does business as the Silicon
Valley Pet Clinic. Campbell seeks to represent a class of
lessees targeted under this post-lease expiration tax collection
scheme. She entered into a lease for a credit card terminal
with CIT Corporation and provided her bank account
information to make monthly payments of about $86.55.
GCN Holdings, LLC later acquired Campbell’s lease, and
Defendant Northern Leasing Systems serviced the lease on
behalf of GCN. Campbell began taking steps to terminate her
lease in January 2007 and completed termination in June
2007. Yet, in March 2011, Campbell received a letter (the
“Notice of Debt”) from Defendant SKS Associates, which
Plaintiffs allege was written by Defendant Northern Leasing
Systems. The letter stated that SKS Associates had acquired
the rights and title to her old lease, that she owed $85.50 for
taxes and filing costs associated with her equipment, and that
the amount would be deducted on March 15, 2011. Campbell
called SKS Associates about the charge, and the customer
service representative stated that Leasing Defendants had
paid taxes on Campbell’s behalf and that she now owed them
for that payment. The representative warned Campbell that
if she did not pay, Leasing Defendants would report the
amount owed to credit bureaus and pursue other methods of
collection. Campbell alleges she spent several hours of her
normal work time investigating the claims in the letter and
paid an employee $7.50 to investigate the claims and compute
what Campbell paid during the lease.
8 JUST FILM V. BUONO
2. The Property Tax Scheme
Plaintiffs also allege that Leasing Defendants collected
property taxes using an inaccurate methodology: rather than
collecting property taxes based on the actual cost of
equipment (the “Equipment Cost”), Leasing Defendants
calculated taxes using a higher base—the stream of income
a lease generated (the “Acquisition Cost”). Plaintiffs contend
that the difference between the two costs is large. For
example, Plaintiff Just Film’s Acquisition Cost was
$5,429.19, and Plaintiff Dietz Towing’s Acquisition Cost was
$3,686. By contrast, the Equipment Cost was only $358.
Leasing Defendants collected property taxes using the
higher Acquisition Cost as the tax base for several years but
later switched to calculating property tax using the Equipment
Cost as the tax base. Plaintiffs allege that after the switch,
Defendant Northern Leasing Systems never told merchants
that it had wrongly overcharged them for property taxes and
did not take any steps to refund merchants for its mistakes.
B. Procedural History
Plaintiffs filed a putative class action in state court, which
Defendants removed to federal court. In their Third
Amended Class Action Complaint, Plaintiffs allege violations
of Sections 17200 and 17500 of the California Business and
Professions Code; violations of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962;
violations of the Fair Credit Reporting Act (“FCRA”),
15 U.S.C. § 1681; breach of contract; deceit and/or
misrepresentation; negligent misrepresentation; and
conversion.
JUST FILM V. BUONO 9
In April 2011, Plaintiffs filed an application for a
temporary restraining order, asking the district court to enjoin
Leasing Defendants’ collection of post-lease expiration taxes
and administrative fees. The district court granted the
application, and in June 2011, issued a preliminary
injunction. We affirmed the preliminary injunction order in
Just Film, Inc. v. Merchant Servs., Inc., 474 F. App’x 493
(9th Cir. 2012).
In December 2013, the district court granted a motion for
final approval of the class action settlement with respect to
the Merchant Service Defendants.
In May 2013, Plaintiffs filed a motion for class
certification, seeking to certify an overarching class and five
separate subclasses under Rule 23(b)(3). Two of the
subclasses were certified and are relevant to this appeal:
(1) the “SKS Post-Lease Expiration Class,” and (2) the
“Property Tax Equipment Cost Basis Class.”1 The SKS Post-
Lease Expiration Class is defined as “[a]ll persons and
businesses whose lease numbers appeared on Schedule 1”
with a national class pursuing RICO and RICO conspiracy
claims and a California subclass pursuing an Unfair
Competition Law (“UCL”) claim under Section 17200 of the
California Business and Professions Code. The Property Tax
Equipment Cost Basis Class is defined as “[a]ll persons and
businesses who [from March 26, 2006 to the present] paid
any Leasing Defendants property taxes based on a cost
greater than the ‘equipment cost’” with a national class
seeking to bring RICO, RICO conspiracy, fraud, and breach
1
The three non-certified classes—the “Excessive Lease Amount
Subclass,” the “Property Tax Fee Non-Disclosure Class,” and the “Credit
Monitoring Class”—are not at issue on appeal.
10 JUST FILM V. BUONO
of contract claims, and a California subclass seeking to bring
negligent misrepresentation, breach of the duty of good faith
and fair dealing, and UCL claims.
The district court granted Plaintiffs’ class certification
motion in part on December 20, 2012. The court certified the
California subclass of the proposed SKS Post-Lease
Expiration Class to pursue a UCL claim; the Property Tax
Equipment Cost Basis Class to pursue a breach of contract
claim; and the California subclass of the Property Tax
Equipment Cost Basis Class to pursue a claim for breach of
the duty of good faith and fair dealing and a UCL claim.
Thereafter, Campbell filed a motion requesting leave to
file a motion for reconsideration of that order. The district
court granted Campbell’s motion for reconsideration, and on
March 17, 2014, the court certified the nationwide SKS Post-
Lease Expiration Class to pursue RICO and RICO conspiracy
claims.
Leasing Defendants filed, pursuant to Federal Rule of
Civil Procedure 23(f), a petition for permission to appeal the
orders, which we granted. In this consolidated appeal,
Leasing Defendants challenge the district court’s class
certification orders, arguing that: (1) Plaintiffs did not
establish typicality, commonality, and predominance for the
SKS Post-Lease Expiration Class; and (2) Plaintiffs did not
establish commonality, predominance, and superiority for the
Property Tax Equipment Cost Basis Class.
II
We have jurisdiction under 28 U.S.C. § 1292(e). We
review a district court’s decision to certify a class for abuse
JUST FILM V. BUONO 11
of discretion, and accord the district court “noticeably more
deference” when reviewing a grant of class certification than
when reviewing a denial. Abdullah v. U.S. Sec. Assocs., Inc.,
731 F.3d 952, 956 (9th Cir. 2013) (quoting Wolin v. Jaguar
Land Rover N. Am., LLC, 617 F.3d 1168, 1171 (9th Cir.
2010)). “An abuse of discretion occurs when the district
court, in making a discretionary ruling, relies upon an
improper factor, omits consideration of a factor entitled to
substantial weight, or mulls the correct mix of factors but
makes a clear error of judgment in assaying them.” Parra v.
Bashas’, Inc., 536 F.3d 975, 977–78 (9th Cir. 2008) (internal
quotation marks omitted). Despite the considerable deference
we give to a grant of class certification, it will always be
considered an abuse of discretion if the district court
materially misstates or misunderstands the applicable law.
Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087,
1091 (9th Cir. 2010) (“[T]his court has oft repeated that an
error of law is an abuse of discretion.”) (emphasis in
original).
III
The district court certified two Rule 23(b)(3) classes.
Gaining certification under that provision is a two-step
process. A plaintiff must first show that the class meets the
following four requirements of Rule 23(a):
(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;
12 JUST FILM V. BUONO
(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); see Zinser v. Accufix Research Inst.,
Inc., 253 F.3d 1180, 1186 (9th Cir.), opinion amended on
denial of reh’g, 273 F.3d 1266 (9th Cir. 2001). Next, the
plaintiff must establish “that the questions of law or fact
common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3); see
Zinser, 253 F.3d at 1186. The party seeking class
certification bears the burden of demonstrating that the class
meets the requirements of Federal Rule of Civil Procedure 23.
Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir.
2012) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
350 (2011)).
A. The SKS Post-Lease Expiration Class
Campbell represents the SKS Post-Lease Expiration Class
in pursuing RICO, RICO conspiracy, and UCL claims. She
alleges that Leasing Defendants debited or attempted to debit
bank accounts of former lessees in a spurious tax collection
scheme. Leasing Defendants argue that Campbell’s RICO
claim is not typical of the class, and that Plaintiffs did not
establish commonality and predominance. To establish a
civil RICO claim, a plaintiff must establish: “(1) conduct
(2) of an enterprise (3) through a pattern (4) of racketeering
activity (known as predicate acts) (5) causing injury to
JUST FILM V. BUONO 13
plaintiff’s business or property.” Living Designs, Inc. v. E.I.
DuPont de Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005)
(internal quotation marks omitted).
We address the challenges to class certification raised on
this appeal.
1. Typicality
Typicality focuses on the class representative’s
claim—but not the specific facts from which the claim
arose—and ensures that the interest of the class representative
“aligns with the interests of the class.” Hanon v.
Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). The
requirement is permissive, such that “representative claims
are ‘typical’ if they are reasonably coextensive with those of
absent class members; they need not be substantially
identical.” Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir.
2014) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011,
1020 (9th Cir. 1998)). “Measures of typicality include
‘whether other members have the same or similar injury,
whether the action is based on conduct which is not unique to
the named plaintiffs, and whether other class members have
been injured by the same course of conduct.’” Torres v.
Mercer Canyons Inc., 835 F.3d 1125, 1141 (9th Cir. 2016)
(quoting Hanon, 976 F.2d at 508). A court should not certify
a class if “there is a danger that absent class members will
suffer if their representative is preoccupied with defenses
unique to it.” Hanon, 976 F.2d at 508 (internal quotation
marks omitted).
Leasing Defendants argue Campbell’s claim is not typical
of the class because (1) Campbell’s legal theory is different
from that of the class, (2) her injuries are based on a different
14 JUST FILM V. BUONO
predicate act than the injuries of the class, (3) her damages
are different from those of the class, and (4) she faces unique
defenses. We reject each argument and conclude that the
district court did not err in finding Campbell’s claim typical
of the class.
First, Leasing Defendants mischaracterize Plaintiffs’ legal
theory. Leasing Defendants describe it as follows: they made
misrepresentations to two third-party ACH processors, and
the ACH processors relied on the misrepresentations and
debited class members’ bank accounts without authorization.
Therefore, Leasing Defendants assert the class’s injuries are
attributable to third-party reliance on Leasing Defendants’
alleged misrepresentations, and Leasing Defendants assert
that Campbell’s own legal theory necessarily differs from that
of the class because her bank account was not actually
debited.
Plaintiffs actually allege a broader fraudulent scheme in
which Leasing Defendants conspired to defraud former
lessees through a course of conduct which injured Campbell
as well as other class members. Plaintiffs allege that Leasing
Defendants planned to collect from former lessees past taxes
that were not due, and that as part of the fraudulent scheme,
Leasing Defendants ran a faulty simulation to calculate the
taxes and fees of more than 107,000 merchants with expired
leases, with the results compiled on Schedule 1; sent letters
to merchants that inaccurately stated that an audit had
revealed that the merchants owed property taxes and
administrative fees; created another entity to ensure that ACH
regulators would not learn that Leasing Defendants were
collecting payments; applied to new banks to access the ACH
system to debit the bank accounts associated with the expired
JUST FILM V. BUONO 15
leases; sent collections letters to third party bank processors;
and sent electronic notices to merchants’ banks.
Campbell is one of the merchants from whom Leasing
Defendants made or attempted to make unauthorized ACH
deductions. Plaintiffs presented evidence showing that
Campbell was the personal guarantor of an expired lease; that
she received a letter from SKS advising her that an audit was
conducted and that she owed $85.50 for certain taxes and
related fees; that she called Defendants and they informed her
that she owed money; and that Defendants subsequently
admitted that the amount they sought to collect from
Campbell was inaccurate. Campbell’s claim is reasonably
coextensive with that of the class because she alleges Leasing
Defendants committed the same overall course of misconduct
against other members of the class—seeking to collect
alleged past taxes and fees through subterfuge and
misrepresentation—and the class’s alleged injuries also
resulted from that course of misconduct. See Parsons,
754 F.3d at 686 (concluding that the named plaintiffs met the
typicality requirement because their injury “is a result of a
course of conduct that is not unique to any of them; and they
allege that the injury follows from the course of conduct at
the center of the class claims”) (citing Hanon, 976 F.2d at
508). Her claim is typical of the class because it shares
“some common question of law and fact with class members’
claims.” Newberg on Class Actions § 3:31 (5th ed.).
Leasing Defendants next make the closely related
argument that Campbell’s claims are not typical because they
do not focus on the same injurious conduct as that of the
class. They contend that Campbell was harmed by the Notice
of Debt sent directly to her, whereas the class alleges injury
based on the misrepresentations made to the ACH processors.
16 JUST FILM V. BUONO
Plaintiffs stress that all class members need not have suffered
an identical injury; instead, they need to prove that Leasing
Defendants engaged in a pattern of racketeering, and that at
least one of the acts within the pattern caused the class injury.
According to Plaintiffs, all class members, including
Campbell, have been injured by Leasing Defendants’ course
of conduct.
Again, Leasing Defendants construe Plaintiffs’ claim too
narrowly. The proposed SKS Post-Lease Expiration class’s
RICO and RICO conspiracy claims are based on a broader
scheme that Leasing Defendants crafted to collect purported
back taxes and administrative fees. The pattern of
racketeering includes Leasing Defendants’ alleged
misrepresentations to ACH processors, but also include the
letters Leasing Defendants sent to class members claiming an
audit revealed additional property taxes and fees were owed
and concealing their identity to banks and merchants while
pursuing collection.
Campbell’s injuries stem from the same scheme, although
the specific predicate act that caused her injury may differ
from the acts that caused injury to other class members.
Substantively, Campbell’s allegation of harm based on some
of the activities comprising the RICO violation is sufficient.
See Deppe v. Tripp, 863 F.2d 1356, 1366 (7th Cir. 1988)
(“[N]o requirement exists that the plaintiff must suffer an
injury from two or more predicate acts, or from all of the
predicate acts. Thus, a RICO verdict can be sustained when
a pattern of racketeering acts existed, but when only one act
caused injury.”) (internal citation omitted); Town of Kearny
v. Hudson Meadows Urban Renewal Corp., 829 F.2d 1263,
1268 (3d Cir.1987) (holding that the RICO statute required
only injury from “any predicate act,” not from an entire
JUST FILM V. BUONO 17
pattern of racketeering). Given the nature of RICO liability,
the typicality requirement necessarily focuses on whether
Campbell was injured by the same pattern of racketeering as
the other class members.
Defendants next contend that Campbell’s injury is
different from the rest of the class because ACH processors
did not actually debit her account. It is true that Campbell’s
account was not actually debited because it was closed, while
members of the class did have funds debited from their bank
accounts without authorization. Instead, Campbell alleges
damages in the form of time taken off from work and
payment to an assistant to research her financial records upon
receiving the Notice of Debt. Plaintiffs describe the class’s
injuries as: (1) the amounts Defendants debited from their
bank accounts; and (2) costs class members incurred as a
result of Defendants’ bogus collection efforts. Plaintiffs
maintain that Campbell and the class were injured by the
same course of conduct, and argue that the differences in the
nature of the injuries are relevant only to the extent, and
calculation, of damages.
The district court cited to this court’s decision in Lozano
v. AT&T Wireless Servs., Inc., 504 F.3d 718 (9th Cir. 2007),
to support its conclusion that differing injuries do not defeat
typicality in this action. The district court was correct in its
analysis. The relevant portion of Lozano holds, “it is not
necessary that all class members suffer the same injury as the
class representative” to satisfy Rule 23(a)(3). Id. at 734.2
2
In Lozano, the plaintiff sought to represent a class of California
customers who were charged for calls made in a different billing period
than the billing period in which the calls were made. Id. at 721–22. The
plaintiff was charged an overage fee and received a one-time
18 JUST FILM V. BUONO
The requirement of typicality is not primarily concerned with
whether each person in a proposed class suffers the same type
of damages; rather, it is sufficient for typicality if the plaintiff
endured a course of conduct directed against the class.
Although Campbell was able to fend off the attempted fraud
before it reached into and diminished her bank account, there
is no reason why she cannot prove the nature of the
fraudulent scheme for benefit of all class members, whether
or not their precise injuries are identical.
The district court did not misapply Lozano, as Leasing
Defendants contend. The district court did not abuse its
discretion in concluding that Campbell’s RICO claims are the
same as those of the class and the claim is based on
Defendants’ conduct not unique to Campbell. Even if
Campbell’s damages differ from the damages of some class
members, typicality is not defeated. The class includes
merchants whose accounts were actually debited, as well as
merchants who spent resources to investigate the Notice of
Debt or other representations of the debt owed and so
frustrated the fraudulent scheme before it directly impacted
their bank accounts.
reimbursement after complaining about the fee. Id. at 722. The phone
carrier defendant argued that the plaintiff’s claimed damages of reserving
minutes, where a certain number of minutes were saved to compensate for
late-charged calls from the previous billing cycle, was unique. Id. at 734.
Although some customers were charged overage fees and other customers
reserved their minutes, this court affirmed the district court’s finding that
the plaintiff’s injuries were typical of the class. Id. A plaintiff who
reserved his minutes had a typical claim as the class, which included
customers charged an overage fee and customers who reserved their
minutes. Id.
JUST FILM V. BUONO 19
Leasing Defendants next argue that Campbell is subject
to a unique defense—lack of standing to pursue the RICO
claim—such that certification of the SKS Post-Lease
Expiration Class was wrong. To establish standing, “a civil
RICO plaintiff must show: (1) that his alleged harm qualifies
as injury to his business or property; and (2) that his harm
was by reason of the RICO violation, which requires the
plaintiff to establish proximate causation.” Canyon Cty. v.
Syngenta Seeds, Inc., 519 F.3d 969, 972 (9th Cir. 2008)
(internal quotation marks omitted). Leasing Defendants
contend that the district court did not address the second
element. They again stress that the wrongful conduct alleged
by the SKS Post-Lease Expiration Class is predicated on
Defendants’ misrepresentations toward two third-party ACH
processors. These two processors then relied on the
misrepresentations and went on to improperly debit class
members’ bank accounts without permission. By contrast,
Leasing Defendants argue that Campbell’s injury is not a
direct or indirect result of this conduct. Because Campbell’s
account was not debited, the argument goes, the
misrepresentations were not the proximate cause of
Campbell’s injuries.
We once more reject Leasing Defendants’ repeated
attempt to narrow the scope of activities that comprise the
alleged RICO violation. Campbell alleges she suffered an
injury to her “business or property” because of Leasing
Defendants’ misconduct. The district court properly
concluded that Campbell had standing to pursue the RICO
claim because, although Defendants did not deduct money
from her bank account, she spent time away from her usual
work and paid an assistant to help her research and compile
records responding to a fraudulent allegation. This amounted
20 JUST FILM V. BUONO
to a loss to business or property sufficient to confer standing.
See Diaz v. Gates, 420 F.3d 897, 900 (9th Cir. 2005).
Finally, Leasing Defendants argue that Campbell would
be a poor advocate for the SKS Post-Lease Expiration Lease
class members. They cite to In re Payment Card Interchange
Fee and Merch. Disc. Antitrust Litig., 827 F.3d 223 (2d Cir.
2016) (“Payment Card Interchange”), to support their
argument that Campbell could not zealously advocate for
class members with accounts actually debited. In Payment
Card Interchange, the Second Circuit vacated the final
approval of a class action settlement between merchants and
Visa, Mastercard, and other banks. See id. at 227. The court
concluded that class counsel’s unitary representation of the
plaintiffs was inadequate, as class counsel represented both
merchants in a Rule 23(b)(3) class, pursuing solely monetary
relief, and merchants in a Rule 23(b)(2) class, pursuing solely
injunctive relief. Id. at 233. The court reasoned that in this
settlement, “[u]nitary representation of separate classes that
claim distinct, competing, and conflicting relief create
unacceptable incentives for counsel to trade benefits to one
class for benefits to the other in order somehow to reach a
settlement.” Id. at 234. The court was concerned with
problems that arise when “(b)(2) and (b)(3) classes do not
have independent counsel, seek distinct relief, have non-
overlapping membership, and . . . are certified as settlement-
only.” Id. at 235.
None of the issues identified by Payment Card
Interchange is presented in this case. Campbell represents a
23(b)(3) class pursuing monetary damages only and the class
was not certified for settlement purposes only. Leasing
Defendants do not identify how Campbell’s status as class
JUST FILM V. BUONO 21
representative creates an unacceptable incentive as she
advocates for the SKS Post-Lease Expiration Class.
Campbell, like the proposed class, is a merchant who
appeared on Schedule 1. She asserts that Leasing Defendants
collected or tried to collect taxes that were not due or paid to
any taxing authority and alleges injury based on a course of
conduct that is not unique to her.
The district court did not commit a clear error of
judgment in concluding that Campbell had standing to assert
a RICO claim and that she would not be subject to unique
defenses such that typicality would be defeated, nor did it so
err in ultimately determining that Campbell met the typicality
requirement. We conclude that the nature of Campbell’s
individual claim is reasonably coextensive with that of the
class merchants found on Schedule 1. See Hanlon, 150 F.3d
at 1020; Parsons, 754 F.3d at 686.
2. Commonality and Predominance
“The predominance analysis under Rule 23(b)(3) focuses
on ‘the relationship between the common and individual
issues’ in the case, and ‘tests whether proposed classes are
sufficiently cohesive to warrant adjudication by
representation.’” Wang v. Chinese Daily News, Inc.,
737 F.3d 538, 545 (9th Cir. 2013) (quoting Hanlon, 150 F.3d
at 1022). “If anything, Rule 23(b)(3)’s predominance
criterion is even more demanding than Rule 23(a).” Comcast
Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013).
Leasing Defendants argue that the district court erred in
certifying the SKS Post-Lease Expiration Class because
damages are not capable of measurement on a classwide basis
22 JUST FILM V. BUONO
and because individualized issues regarding Campbell’s
reliance predominate.
Rule 23(b)(3)’s predominance requirement takes into
account questions of damages. “[P]laintiffs must be able to
show that their damages stemmed from the defendant’s
actions that created the legal liability.” Pulaski &
Middleman, LLC v. Google, Inc., 802 F.3d 979, 987–88 (9th
Cir. 2015) (quoting Leyva v. Medline Industries Inc.,
716 F.3d 510, 514 (9th Cir. 2013)). To satisfy this
requirement, plaintiffs must show that “damages are capable
of measurement on a classwide basis,” in the sense that the
whole class suffered damages traceable to the same injurious
course of conduct underlying the plaintiffs’ legal theory.
Comcast, 133 S. Ct. at 1433–35. However, “damage
calculations alone cannot defeat certification.” Yokoyama,
594 F.3d at 1094. “[T]he presence of individualized damages
cannot, by itself, defeat class certification under Rule
23(b)(3).” Leyva, 716 F.3d at 514. In a civil RICO action,
the measure of damages “is the harm caused by the predicate
acts constituting the illegal pattern.” Ticor Title Ins. Co. v.
Florida, 937 F.2d 447, 451 (9th Cir. 1991). To gain class
certification, Plaintiffs need to be able to allege that their
damages arise from a course of conduct that impacted the
class. But they need not show that each members’ damages
from that conduct are identical.
Leasing Defendants contend that Plaintiffs cannot
establish predominance because the damages model advanced
by Campbell is not capable of classwide proof. Leasing
Defendants stress that the economic impact of the
unauthorized ACH debits can be calculated, but Campbell’s
harm requires a completely different measurement.
JUST FILM V. BUONO 23
In Plaintiffs’ motion for class certification, Plaintiffs gave
examples of methods for calculating damages. Plaintiffs
stressed that it would be easy to identify amounts associated
with wrongful ACH withdrawals because Defendants
maintained searchable computer records of each lease and
each transaction, and because the disputed transactions used
common descriptors. Plaintiffs also offered that class
members could calculate other damages using their own
records. At the hearing on Plaintiffs’ motion for class
certification, Plaintiffs again proposed these methods for
measuring damages: either class members could establish the
unauthorized ACH debits or show the “time and effort
preventing them from getting money.”
Certainly some individual issues may arise in calculating
damages, particularly for class members whose funds were
never debited from their bank accounts. However, Plaintiffs
generally will be able to “show that their damages stemmed
from the [Leasing Defendants’] actions that created the legal
liability.” Pulaski, 802 F.3d 987–88. That some
individualized calculations may be necessary does not defeat
finding predominance. Id. This case is unlike Comcast,
where the Court noted that the courts below did not probe
whether the damages model proposed in the antitrust class
action measured damages attributable to the plaintiffs’ theory
of harm. See 133 S. Ct. at 1435. There, because the model
proposed did not “even attempt to” measure only damages
attributable to the legal theory, “it [could not] possibly
establish that damages are susceptible of measurement across
the entire class for purposes of Rule 23(b)(3).” Id. at 1433.
This case presents no issue similar to the one in Comcast.
Plaintiffs propose measuring damages that are directly
attributable to their legal theory of the harm. If class
24 JUST FILM V. BUONO
members establish Leasing Defendants’ liability, damages
can be calculated based on (1) the amount of fees, if any,
deducted from their bank accounts after their leases were
terminated using Leasing Defendants’ own records, and
(2) expenses, if any, spent by class members in investigating
the scheme using their own records. At this stage, Plaintiffs
need only show that such damages can be determined without
excessive difficulty and attributed to their theory of liability,
and have proposed as much here.
Leasing Defendants also contend that Plaintiffs did not
establish commonality and predominance because issues of
reliance are highly individualized. Leasing Defendants
contend that for Campbell to succeed on her RICO claim, she
“must prove that she received and read a Notice of Debt, that
she decided to investigate, and that she incurred monetary
damage as a result of that decision. If these issues applied to
the entire class, they could not be proved on a classwide
basis.” Leasing Defendants argue this individual issue
predominates over any common issues.
The district court properly identified several common
questions and determined they predominate in Plaintiffs’
RICO claim. These questions include the propriety of
Leasing Defendants’ simulation to determine whether taxes
were due, whether class members’ ACH form agreements
authorized the deductions after their leases had expired, and
whether ACH processors relied on fraudulent
misrepresentations by Leasing Defendants when they
processed the debits. These issues are “of such a nature that
[they are] capable of classwide resolution.” Wal-Mart,
JUST FILM V. BUONO 25
564 U.S. at 350.3 Although there are individualized issues
related to Campbell’s injury, common questions exist and
predominate for the alleged RICO violation. The district
court did not abuse its discretion in so concluding.
B. The Property Tax Equipment Class
Leasing Defendants also appeal the district court’s
certification of the Property Tax Equipment Class—the class
of persons and businesses who paid property taxes based on
the Acquisition Cost rather than the Equipment Cost. Leasing
Defendants argue that Plaintiffs did not establish
commonality, predominance, or superiority.
1. Commonality and Predominance
In certifying the Property Tax Equipment Cost Class, the
district court identified the following common questions that
predominate: whether Leasing Defendants’ use of the
Acquisition Cost to calculate taxes was improper, whether
3
Other common questions exist in this action. To prove Leasing
Defendants committed a RICO violation under 18 U.S.C. § 1962(c),
Plaintiffs will need to show: (1) Leasing Defendants are persons as
defined in 18 U.S.C. § 1961(3); (2) Leasing Defendants conducted or
participated in the complained of conduct; (3) Leasing Defendants
participation in the conduct is part of an enterprise as defined in 18 U.S.C.
§ 1961(4); and (4) Leasing Defendants participation in the enterprise was
performed through a pattern of racketeering activity as defined in
18 U.S.C. § 1961(5). These issues are appropriate for classwide litigation
because they focus on Leasing Defendants’ conduct. Whether Leasing
Defendants were part of an enterprise operating an alleged scheme to
defraud class members can be resolved on a classwide basis. See, e.g.,
Bias v. Wells Fargo & Co., 312 F.R.D. 528, 541 (N.D. Cal. 2015); In re
United Energy Corp. Solar Power Modules Tax Shelter Investments Sec.
Litig., 122 F.R.D. 251, 255 (C.D. Cal. 1988).
26 JUST FILM V. BUONO
Leasing Defendants had a fiduciary duty to Plaintiffs to
calculate their taxes properly when they assumed the duty to
assess and pay taxes on Plaintiffs’ behalf, and whether
Leasing Defendants breached their fiduciary duty by using
the Acquisition Cost to calculate taxes.
Leasing Defendants argue that the district court
incorrectly assumed that the Acquisition Cost is an “inflated
figure,” and this assumption has no factual support in the
record. We disagree that this argument is pertinent at this
stage. Plaintiffs have alleged that the Acquisition Cost
amounted to thousands of dollars for a piece of equipment
only worth a few hundred dollars, and that Leasing
Defendants assessed property taxes on the total commission
paid to the ISO rather than the true equipment cost. In their
motion for class certification, Plaintiffs gave examples from
two class members seeking to represent the Property Tax
Equipment Class: Plaintiff Just Film’s Acquisition Cost was
listed at $5,429.19 and Plaintiff Dietz Towing at $3,686. The
Equipment Cost was listed at $358. Plaintiffs stress that the
“difference between the two tax bases is significant” and that
by switching from the Acquisition Cost to the Equipment
Cost as the tax base, the property tax liability lowered
significantly. Plaintiffs also offered the deposition testimony
of Defendant Northern Leasing’s Rule 30(b)(6) witness who
conceded that using the Acquisition Cost was a mistake, and
that Defendants should have used Equipment Cost as the tax
base. The witness also stated that by switching from the
Acquisition Cost to the Equipment Cost, the property tax
liability would be “much less.” Plaintiffs’ position in this
regard may or may not prevail, but that is a merits question
not appropriately addressed at the class certification stage.
See Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct.
1184, 1191 (2013) (“Rule 23(b)(3) requires a showing that
JUST FILM V. BUONO 27
questions common to the class predominate, not that those
questions will be answered, on the merits, in favor of the
class.”); Stockwell v. City & Cty. of San Francisco, 749 F.3d
1107, 1112 (9th Cir. 2014) (stating that “demonstrating
commonality does not require proof that the putative class
will prevail on whatever common questions it identifies”).
Next, Leasing Defendants argue that Plaintiffs presented
no evidence regarding the variation in tax rates, and that
because of the variation, certifying a national class is
inappropriate. Leasing Defendants misconstrue Plaintiffs’
legal theory for their breach of contract claim. Plaintiffs
contend that Defendants MBF Leasing and Northern Leasing
breached their contracts by using the Acquisition Cost instead
of the Equipment Cost to assess property taxes and charging
those assessment amounts to the class. As the district court
reasoned, no matter the tax rate in the various jurisdictions,
using the Acquisition Cost would amount to an incorrect tax
assessment. Whether Leasing Defendants’ conduct breached
any contractual obligation turns on whether use of the
Acquisition Cost, rather than the Equipment Cost, was
improper under the contract. Because interpretation of the
leasing contracts would predominate, the district court did not
err in finding that Plaintiffs established commonality and
predominance as to the Property Tax Equipment Class Lease.
Leasing Defendants also argue that determining whether
it was improper to calculate property taxes using the
Acquisition Cost requires one to assemble the laws of 3,500
taxing jurisdictions. But Plaintiffs do not argue that using the
Acquisition Cost is wrong based on the laws of each taxing
jurisdiction. Rather, they contend that Leasing Defendants
breached their contracts by choosing to calculate taxes using
28 JUST FILM V. BUONO
the Acquisition Cost, rather than the Equipment Cost, as the
base.4
The district court did not abuse its discretion in
concluding that common questions—including whether
Leasing Defendants’ use of the Acquisition Cost to calculate
property taxes breached the parties’ lease contracts—
predominate.
2. Superiority
In addition to establishing predominance of a common
question, a class proponent must also demonstrate that the
class action is superior to other methods of adjudicating the
controversy. Fed. R. Civ. P. 23(b)(3); see Valentino v.
Carter-Wallace, Inc., 97 F.3d 1227, 1235 (9th Cir. 1996).
Leasing Defendants argue that Plaintiffs did not establish
superiority because the number of taxing jurisdictions
involved in this case makes adjudication unmanageable.
Again, Leasing Defendants’ argument manufactures a
manageability issue that does not exist. The factfinder will
determine as a matter of contract whether Leasing Defendants
improperly calculated property taxes using the Acquisition
4
Both parties discuss whether use of the Acquisition Cost as the tax
basis breached contractual obligations and whether use of this tax base
was arbitrary or irrational under New York law. These discussions,
however, encompass the merits of Plaintiffs’ claim, which we decline to
address as it is not relevant to determining whether Plaintiffs met the
requirements for class certification. See Amgen, 133 S. Ct. at 1194–95
(“Rule 23 grants courts no license to engage in free-ranging merits
inquiries at the certification stage. Merits questions may be considered to
the extent—but only to the extent—that they are relevant to determining
whether the Rule 23 prerequisites for class certification are satisfied.”).
JUST FILM V. BUONO 29
Cost. Calculating the differences in the taxed amounts
between the Acquisition Cost and the Equipment Cost, as it
pertains to measuring damages, would then require applying
the laws of the various taxing jurisdictions.
The district court did not err in determining that Plaintiffs
satisfied the superiority requirement. If a class action is not
superior, then individual actions must carry the day. The
court concluded that the “risks, small recovery, and relatively
high costs of litigation” make it unlikely that plaintiffs would
individually pursue their claims. These considerations are at
the heart of why the Federal Rules of Civil Procedure allow
class actions in cases where Rule 23's requirements are
satisfied. This case vividly points to the need for class
treatment. The individual damages of each merchant are too
small to make litigation cost effective in a case against
funded defenses and with a likely need for expert testimony.
The district court also found that class action was superior
because litigation on a classwide basis would promote greater
efficiency in resolving the classes’ claims. See Valentino,
97 F.3d at 1234.
IV
The district court did not abuse its discretion in certifying
the SKS Post-Lease Expiration Class and the Property Tax
Equipment Cost Basis Class. We affirm the district court’s
class certification orders.
AFFIRMED.