JON S. TIGAR, District Judge.
Plaintiff Michael Rodman has moved to certify the following class:
Plaintiff seeks certification of his claims for breach of contract, as well as for violations of California's Consumers Legal Remedies Act ("CLRA"), California Civil Code § 1750, et seq., False Advertising Law ("FAL"), California Business and Professions Code § 17500, et seq., and Unfair Competition Law, California Business and Professions Code § 17200, et seq. ("UCL") (collectively, the "statutory claims"). The matter came for hearing January 16, 2014.
Defendant Safeway, Inc. ("Defendant" or "Safeway") offers groceries for home delivery through Safeway.com. (It also has sold under the trade names Safeway.com, Vons.com and Genuardis.com, but the Court refers to all of these collectively as "Safeway" for purposes of simplicity.) When using Safeway.com, customers select items for home delivery, and the website displays a price for each selected item. Declaration of Steve Guthrie ("Guthrie Decl.") ¶ 8, ECF No. 131-8, Exh. 19 to Declaration of Brian R. Blackman ("Blackman Decl.") 194:22-23, ECF No. 132-21. Safeway employees or contractors then select the customer's items at brick-and-mortar Safeway stores and deliver them to the customer. Declaration of Joseph Anastasi ("Anastasi Decl.") ¶ 14, ECF No. 131-28. The store utilized to facilitate the delivery of goods purchased online is referred to by Safeway as the "Pick Store."
From 2006 to April 2010, the prices a customer paid for items at Safeway.com were the same as prices in the Pick Store, with a few specific exceptions. Exh. A to Declaration of Timothy Matthews ("Matthews Decl.") 4:16-17, ECF No. 120-9; Anastasi Decl. ¶ 16; Declaration of Michael McCready ("McCready Decl.") ¶ 4 at 35:20-39:11; Exh. 17 to Blackman Decl. 36:24-37:2.
During the relevant period, customers registering for Safeway.com checked a box on the bottom of the registration page indicating that they agreed to a set of "Special Terms," which displayed on a different page, to which the registration page hyperlinked. Exh. 17 to Blackman Decl. 178:19-179:16; Guthrie Decl. ¶ 3. The "Special Terms" stated, inter alia:
Exh. C to Declaration of Matthews Decl., ECF No. 120-12 (bold face in the original).
Several Frequently Asked Questions ("FAQ") pages on Safeway.com's website also contained information on home delivery pricing. Until October 26, 2011, Safeway had separate FAQ pages for different subject areas, but after that date all FAQs were consolidated on a single page. Sorensen Decl. ¶ 8. Before October 26, 2011, the "Main FAQ" page stated, inter alia:
Exh. OO to Supplemental Declaration of Tim Matthews., ECF No. 137-30. The "Prices and Promotions" FAQ page stated as follows:
Exh. 15 to Blackman Decl., ECF No. 132-17. The "Payment & Receipt" FAQ page stated, inter alia:
Exh. 15 to Blackman Decl.
On or about April 12, 2010, Safeway changed the formula used to set prices on safeway.com for items not sold on club-card-based promotions, adding a markup of $0.10 per each increment of $0.99 that the item cost in the Pick Store. Exh. A to Matthews Decl. 5:13-14; Anastasi Decl. ¶ 27. This charge did not appear separately as one of the delivery charges itemized on the customer's bill, but instead simply became part of the price displayed on safeway.com for the selected item.
Plaintiff Michael Rodman registered with Safeway.com in February 2011. He has testified that he reviewed the Special Terms "top to bottom" when registering. Exh. 19 to Blackman Decl. 135:21-136:9, ECF No. 132-21. He also read the FAQs.
Plaintiff filed his initial complaint in June 2011. ECF No. 1. In response to Defendant's motion to dismiss, Plaintiff filed the operative Amended Complaint, bringing causes of action for breach of contract, and for violations of the CLRA, FAL, and UCL. ECF No. 29. On November 1, 2011, the Court denied Defendant's motion to dismiss, finding that "Plaintiff adequately alleges the existence of a contract, which both parties construe to be binding, and which is susceptible to Plaintiff's reasonable construction," as well as that Plaintiff had alleged injury, reliance, and an actionable misrepresentation or omission sufficiently to state a claim under the CLRA, FAL, and UCL. ECF No. 38.
On November 15, 2011, Safeway.com revised the Special Terms "to state that online and physical store prices, promotions and offers may differ." Safeway's Opposition to Motion for Class Certification ("Opp.") 10:21-23, ECF No. 131-6.
After discovery, Plaintiff filed this Motion for Class Certification ("Motion"), ECF No. 120-5.
This Court has jurisdiction pursuant to 28 U.S.C. § 1332(d)(2) & (6), the Class Action Fairness Act of 2005 ("CAFA"), since there are 100 or more Proposed Class Members, the amount in controversy exceeds $5,000,000, and at least one plaintiff and defendant are citizens of different states.
Class certification under Rule 23 is a two-step process. First, Plaintiff must demonstrate that the four requirements of 23(a) are met: "numerosity," "commonality," "typicality," and "adequacy." "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." Fed. R. Civ. Pro. 23(a). "Class certification is proper only if the trial court has concluded, after a `rigorous analysis,' that Rule 23(a) has been satisfied."
Second, a plaintiff must also establish that one of the bases for certification in Rule 23(b) is met. Here, Plaintiff invokes 23(b)(3), which requires plaintiffs to prove the elements of "predominance" and "superiority": "questions of law or fact common to class members predominate over any questions affecting only individual members, and . . . a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. Pro. 23(b)(3).
The party seeking class certification bears the burden of demonstrating by a preponderance of the evidence that all four requirements of Rules 23(a) and at least one of the three requirements under Rule 23(b) are met.
In addition, "[w]hile it is not an enumerated requirement of Rule 23, courts have recognized that `in order to maintain a class action, the class sought to be represented must be adequately defined and clearly ascertainable.'"
"[F]or purposes of Rule 23(a)(2) [e]ven a single [common] question will do."
In seeking to certifying a Rule 23(b)(3) class, Plaintiff must further show that these common questions "predominate over any questions affecting only individual members." "Considering whether questions of law or fact common to class members predominate begins . . . with the elements of the underlying causes of action."
The Court considers whether there are common questions that predominate over individualized issues first with regard to the breach of contract claim and second with regard to the California statutory claims.
Plaintiff proposes two common questions relative to the breach of contract claim that can be resolved on a class-wide basis: "(1) did Safeway's Special Terms promise Plaintiff and Class members parity between "online" and "in store" prices?; [and] (2) if so, did Safeway breach its price parity promise by marking up the price of groceries by approximately 10%?" Motion 12:1-5. The Proposed Class Members have in common the same relationship to an alleged form contract. All of the Proposed Class Members have in common the fact that they signed up for Safeway.com, and in doing so checked a box indicating that they agreed to certain "Special Terms," the contents of which were the same at the time that all Proposed Class Members first registered. The question of whether, in so doing, the Proposed Class Members became parties to a contract whose terms Safeway breached is a question "capable of classwide resolution," because the "determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke."
Plaintiff argues that the Court can determine the parties' rights and obligations from the objective language of the Special Terms and other relevant evidence to which all members of the Proposed Class bear the same relationship. Defendant advances a contrary contractual interpretation, arguing that that the meaning of any alleged contract necessarily turns on the particular meaning the individual users placed on the words "local store" and "in-store," and that therefore both commonality and predominance fail. In addition, Defendant argues that assessing Plaintiff's contractual claims will require individualized inquiries regarding Defendant's contractual affirmative defenses, and that those determinations will predominate over the common issues.
The Court addresses each of these arguments in turn.
Defendant argues that the meaning of the parties' agreement turns on the question of "what `in store' or `local store' subjectively meant to each customer." Opp. 15:19-20. From this, Defendant argues that two things follow: (1) commonality fails under
Defendant argues that
Defendant also argues that "without ascertaining each individual class member's expectation of his own `local store,' there is no way the Court can reach common answers to Plaintiff's questions that are `apt to drive the resolution of the litigation' `in one stroke.'" Opp. 17:10-13 (quoting
The Court is unaware of any authority extending
The distinction here is largely academic since Defendant makes essentially the same argument against predominance as it does against commonality. In opposing commonality, Defendant emphasizes the fact that the interpretation of the Special Terms will not drive the resolution of the case since liability will hinge on more individualized issues. Defendant appears to argue that for some members of the class, the parties' agreement was that customers would pay the same prices as are charged in a particular brick-and-mortar store that that particular customer envisioned as being the reference point for the price parity promise. Phrased as a predominance issue, Plaintiff argues that, for those customers, if that particular store charged more than that customer paid for Safeway.com groceries, then those customers suffered no damages and can state no claim for breach of contract. And even as to those Class Members who did suffer damages, individualized damage calculations will predominate, since the particular prices at each local store at the time of purchase will have to be separately determined, and compared to the prices each individual customer actually paid.
At class certification, a court does not accept at face value a plaintiff's theory of the case; the court must engage in a "rigorous analysis . . . [into whether] . . . the prerequisites of Rule 23(a) have been satisfied," and "frequently that `rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim."
Plaintiff's possible interpretation of the contract is more than sufficiently plausible to lend itself to the high standard of class certification. The Special Terms state:
(Emphasis added.) In a later section discussing delivery, the Special Terms state: "[w]e reserve the right not to deliver items that your local store, where your groceries are selected, deem to be excessive in quantity."
Taken together, this language is susceptible to the interpretation that groceries will be purchased at a brick-and-mortar store, that the prices charged will be those charged at that brick-and-mortar store, and that the prices displayed online are attempts to estimate those prices. Plaintiff is likely to argue that, in stating that the prices quoted online may vary from "the prices in the store," the Special Terms must be referring to prices in a brick-and-mortar store. From Plaintiff's perspective, "[i]n the store" is unlikely to mean "in the online store," because otherwise the sentence would be nonsensical. Defendant's explanation of this language is that "[t]his section of the Special Terms explains variances in the prices quoted and charged in the online store between the time a customer places his or her order and the actual delivery time of the order . . . variances [which] arise due to the weight of random-weight items delivered . . . taxes, bottle deposits, products that are out of stock, substitutions, and price changes in the online store between the date of order and date of delivery of contracts." Guthrie Decl. ¶ 4.
The resolution of this dispute over the meaning of the Special Terms is far more likely to hinge on the objectively reasonable interpretation of the contractual language rather than the interrogation of each individual class member's personal understanding of these words. "California recognizes the objective theory of contracts, under which it is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation . . . [t]he parties' undisclosed intent or understanding is irrelevant to contract interpretation."
As Defendant correctly points out, there are times where, even with regard to a form contract, a court will need to inquire into the parties' subjective understanding of an ambiguous term, as well as to the parties' course of dealing, and that that necessity will defeat class certification.
Even more importantly, unlike in the
In addition, California contractual law generally expresses a preference for interpreting form contracts against the drafter:
For all of these reasons, the Court considers it likely that the meaning of the contract will be determined by the objective meaning of the Special Terms, without resort to extrinsic evidence. But even the need to take into account extrinsic evidence should not defeat certification, provided that the extrinsic evidence is common evidence. If the Court does need to consider extrinsic evidence (to determine whether the language is ambiguous or to resolve any identified ambiguity), extrinsic evidence about the reasonable objective meaning of these words can be considered without endangering predominance. But the Court is very unlikely to take into account extrinsic evidence for the purpose of concluding that for some customers (unlike others), the meaning of the parties' mutual agreement was to promise price parity with a specific particular store that was envisioned by the particular customer who registered.
It is possible, or even likely, that customers may not have even known that different Safeway stores charge different prices for the same goods, or at least may not have had that distinction firmly in mind at the time of contracting. Some customers (including Plaintiff Rodman) may have had the impression that items were coming from a specific brick-and-mortar store. But the Special Terms themselves do not indicate any relationship to any particular brick-and-mortar store. However, they are certainly susceptible to the interpretation that they promise (1) that the customer's groceries will be purchased at a brick-and-mortar Safeway store, and (2) that, with the exception of the disclosed special delivery fees, the prices charged to customers will be the same as those charged in the brick-and-mortar store where the groceries were purchased, whichever store that happened to be.
Before taking into account parol evidence to discern the meaning of a contractual term, the Court must first consider, inter alia, whether "the agreement [is] susceptible of the meaning contended for by the party offering the evidence."
Defendant objects that at earlier points in the litigation Plaintiff argued that the contract promised price parity with a particular, customer-specific brick-and-mortar store, rather than the Pick Store. The Court does not agree; at various points Plaintiff clearly referred to the prices "charged in the store from which their groceries are delivered," FAC ¶ 3; Motion 1-2, and the other references to which Defendant points are best explained by the fact that Plaintiff Rodman may not have understood before contracting that there was any distinction between Pick Store prices and prices in other brick-and-mortar stores. In any case, the Court granted Defendant's motion to file a sur-reply addressing this issue, and Plaintiff's Pick Store-based theory of the contract has now been fully briefed and argued.
For very similar reasons, the need to assess damages also does not defeat predominance. Plaintiff's theory of the contract is that Defendant promised all Class Members that, except for the disclosed extra charges, customers would be charged the same prices for groceries as were charged at checkout in the Pick Store. If Plaintiff can prevail on the merits on its theory of the contract, all Class Members will have damages in the amount of the undisclosed fees, and calculating damages is a simple matter of refunding those charges. Defendant argues that "[w]hile such a remedy might be capable of `mechanical' application, it is unmoored from the contract itself, Plaintiff's own understanding and would result in a windfall to many putative class members, and is far from sufficient under
The Court does not yet reach the question of how the alleged contract should be interpreted, but it can determine after rigorous analysis that there is no obstacle to commonality or predominance. The scope and proper interpretation of the objective words of the parties' agreement is a common question that applies commonly to all members of the class, is an issue whose resolution will drive resolution of the litigation, and will predominate over any individualized issues.
Defendant also argues that certain customers learned of the additional charges and continued to shop with Safeway.com after so learning. Defendant argues that, as to those customers, it will be able to assert the affirmative defenses of waiver/affirmation, consent, and estoppel, and that the inquiry into those defenses will require an individualized inquiry that will predominate over common questions.
It is far from clear that these customers legally consented to the undisclosed charges by continuing to use the Safeway.com service. The customers who indicated that they learned of the undisclosed charges were calling to complain about them.
If the Court needs to determine whether shoppers who continued to use the service after learning of the undisclosed charge legally waived their rights to enforce the contract, it can make such a legal determination commonly and then subdivide the class as appropriate. But individualized issues applying to such a small portion of the Class cannot defeat certification. Cases such as
If Defendant is arguing that predominance automatically fails if there is any possibility that any Class Members might have consented to the terms of a contract, it would be arguing that no class action could ever be maintained for breach of a form contract.
Plaintiff has satisfied its burden of demonstrating that, as to his breach of contract claim, common issues of law and fact predominate over individualized issues.
Defendant argues that the individualized issues regarding the statutory claims predominate over common questions because it appears that an overwhelming majority of Safeway.com customers did not view the alleged misrepresentations. The Court agrees.
"[California law does not] authorize an award . . . on behalf of a consumer who was never exposed in any way to an allegedly wrongful business practice."
"In the absence of the kind of massive advertising campaign at issue in Tobacco II, the relevant class must be defined in such a way as to include only members who were exposed to advertising that is alleged to be materially misleading."
Plaintiff hinges its claims on alleged misrepresentations contained in the Special Terms.
In its Reply Brief and at oral argument, Plaintiff objects that it would be unfair not to hold Defendant to the representations it made in its own Special Terms, and argues that the Proposed Class Members clicked the box indicating that they agreed to the Special Terms even if they did not actually view the terms. That is a potentially viable contractual argument; contract law recognizes that terms can be incorporated into the parties' agreement by reference, and a contracting party need not show that she subjectively read and relied on each term of the contract to enforce a particular term.
Plaintiff argues for the first time on Reply that, even if few Proposed Class Members viewed the challenged misrepresentations, he should still be able to certify a class challenging Defendant's omissions and nondisclosures. Reply Brief 12:5-25. But this is not the theory on which Plaintiff sought certification. Plaintiff's Motion does not contain the word "omission" or the word "nondisclosure," and focuses almost entirely on specific misrepresentations made by Safeway, mainly in the Special Terms. Motion 1:25-2:2, 3:6-14, 7:3-9:13. The relevant "common questions" Plaintiff argues will drive the litigation are whether "Safeway's Special Terms promise[d] Plaintiff and Class members parity between `online' and `in store' prices?," and whether "Safeway's price parity representations [are] false and likely to deceive the reasonable consumer." Motion 12:2-5 (emphases added). The Amended Complaint, too, focuses on what Safeway "states" and "affirmatively represents." ¶¶ 3, 5, 14-17, 21-24, 26.
Even later, Plaintiff raises a third possibility: that he can challenge as misleading a single representation which appeared on the Main FAQ, which received more visitors than the other specialty FAQ sites. That FAQ stated that "[w]e hand-select all your groceries from a Safeway store local to your area," and that "delivery [f]ees range from $6.95 to $12.95." Mathews Supp. Ex. OO. This argument is not mentioned in the Motion and was only elliptically referenced in a footnote in the Reply Brief, at 13:23-25. The first time Plaintiff made this argument clearly was in an administrative motion for leave to file a sur-reply, ECF No. 157, filed five days after oral argument on the class certification motion. The Court need not consider this new argument, but even if it did, the fact that this FAQ appeared on a higher-traffic webpage does not prove that all, or even most, Class Members actually viewed this page. Plaintiff does not allege that it appeared on a page all registrants necessarily would have seen while signing up. Plaintiff cannot invoke the presumption of common reliance, and cannot meet his burden of demonstrating that common issues will predominate over individualized issues going to reliance.
Finally, Plaintiff cites evidence that it says demonstrates that the "vast majority of Safeway.com purchasers believed that online and in-store prices were the same," and argues that if "Safeway had charged the prices that it said it would charge, and that it was obligated to charge under the contract, Class members would have paid less for groceries, regardless of whether they actually viewed the Special Terms or FAQs or not." Reply 13:1-2, 15-17. Even assuming all of this is true, it does not relax California's requirement that a plaintiff must demonstrate that she actually viewed a misleading misrepresentation to bring a UCL, FAL or CLRA claim, and Plaintiff cites no authority suggesting that it does.
Plaintiff has failed to demonstrate that the common issues he identifies will predominate over individualized issues relating to the merits of his statutory claims.
A class action must be "superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. Pro. 23(b)(3). "The superiority inquiry under Rule 23(b)(3) requires determination of whether the objectives of the particular class action procedure will be achieved in the particular case."
Defendant argues that superiority is not established for the same reasons discussed supra, and for the same reasons discussed supra, the Court agrees with regard to the statutory claims, but disagrees with regard to the breach of contract claim. Resolving the Proposed Class Members' claims for breach of a form contract in a class action is a superior method of resolving the dispute than conducting litigation on an individual basis.
As a secondary argument, Defendant argues that a class action is not superior because some customers like using the Safeway.com service, and that if Defendant loses this lawsuit it might consider shutting down the service. The sole authority it cites for applying this novel argument is plainly distinguishable. In
What decisions Safeway might choose to make to its customer offerings in the event that it is found liable is neither knowable by this Court nor a relevant factor in determining superiority. Superiority is established.
Typicality ensures that "the interests of the named representatives align with the interests of the class."
"The adequacy-of-representation requirement `tend[s] to merge' with the commonality and typicality criteria of Rule 23(a)."
Plaintiff Rodman is bringing these claims on behalf of Proposed Class Members who suffered the same alleged breach of contract injury, based on the same conduct Plaintiff shares with the Proposed Class Members (signing up for safeway.com, clicking the box indicating agreement with the Special Terms, and ordering groceries subject to the price markup). There is no reason to believe Plaintiff's interests or Proposed Class Counsel's interests are not aligned with the members of the Proposed Class, nor that Proposed Class Counsel is likely to be an inadequate representative.
Defendant raises three objections to Plaintiff's typicality and adequacy.
Defendant argues that Plaintiff Rodman is subject to a unique defense that he did not rely on Safeway's representation. This only directly imperils the statutory claims, which the Court will not certify. But in any case, Defendant's argument is based only this on the following interaction at Plaintiff's deposition:
Exh. 19 to Blackman Decl. 175:6-23. Plaintiff Rodman is not an attorney. Even assuming this argumentative, vague, and misleading colloquy is admissible, it isn't particularly relevant, because an "admission" extracted from a plaintiff who obviously does not understand the nature of the term he is being asked to apply says virtually nothing of value on the legal question of reliance. In fact, Plaintiff has testified that he read the Special Terms when he registered, that he understood Safeway's statements to mean that there would be price parity, that he subsequently placed two orders, and then made no further purchases after he conducted a price check and concluded the online prices were marked-up above those prices. He also has declared that he made the online purchase because, among other things, he "believed that Safeway's policy was to charge the same prices for delivery as were charged in the store." Exh. 20 to Blackman Decl., at Response No. 7. Taken as a whole, the available evidence will not place Plaintiff Rodman in a poor position to establish reliance compared to other members of the Proposed Class.
Defendant argues that Plaintiff's own subjective understandings and experiences formed his particular expectation of "price parity." They note that some of his understandings appeared to come from specific placards that he says he viewed at certain specific stores, that he incorrectly believed he had chosen a specific "local store" online, and that he had certain personal expectations and interests that were relevant to his decision to shop with safeway.com.
These factors do not defeat Plaintiff's typicality. "Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought."
Finally, Defendant argues that "Plaintiff's inconsistent and incredible statements under oath regarding issues central to his claims diminish his credibility and will expose him to damaging cross-examination contravening the interests of the class." Opp. 34:14-16. Defendant cites the same testimony discussed at III-D-2, supra, as well as other testimony in which Plaintiff's observations are inconsistent with the way Safeway claims to operate its business, and some statements that are probably inconsistent with each other or unlikely to be accurate. Opp. 34:20-35:13.
After careful review of these statements, nearly all of which are about minor details that are highly unlikely to affect the merits of this litigation, the Court sees nothing approaching the level where "attacks on the credibility of the representative party are so sharp as to jeopardize the interests of absent class members," which is the standard articulated in the case on which Defendant primarily relies.
The Court finds that Plaintiff and Proposed Class Counsel have established their typicality and adequacy to represent the Proposed Class in bringing the breach of contract claims.
"While it is not an enumerated requirement of Rule 23, courts have recognized that `in order to maintain a class action, the class sought to be represented must be adequately defined and clearly ascertainable.'"
The Proposed Class definition includes "[a]ll persons in the United States who: (1) registered to purchase groceries through Safeway.com at any time prior to November 15, 2011, and (2) purchased groceries at any time through Safeway.com that were subject to the price markup implemented on or about April 12, 2010." Plaintiff has submitted evidence indicating that Defendant maintains sufficient records to determine which Safeway.com customers registered with Safeway.com and placed orders during these time periods, and Defendant does not dispute this in its papers.
Defendant, however, raises five issues that it claims defeat ascertainability. In each of these arguments, Defendant maintains that certain members of the defined class will, for one reason another, not have viable claims or be unable to show any damages. But Defendant does not demonstrate that it would be administratively infeasible to identify those members; it argues only that their inclusion in the class is improper and therefore certification is inappropriate.
This Court is aware that, in addition to considering the standard "ascertainability" requirements described infra., "some courts also have considered whether the class definition must exclude anyone who does not have a viable claim." Wright & Miller, 7A Fed. Prac. & Proc. Civ. § 1760 (3d ed.). "In effect, this interpretation means that plaintiffs must plead what effectively is a `fail-safe' class."
There is a place in the Rule 23 analysis for considering whether a class definition is sufficiently "overbroad" as to preclude certification. The fact that a Proposed Class "will often include persons who have not been injured by the defendant's conduct . . . does not preclude class certification," but it is also the case that "a class should not be certified if it is apparent that it contains a great many persons who have suffered no injury at the hands of the defendant."
If Defendant is arguing that, even after a plaintiff establishes all of the Rule 23 factors, a defendant can still defeat certification by pointing to the possibility that certain members of the class will not be able to recover on their claims, the Court does not adopt that view of the "ascertainability" inquiry. This Court joins other in this district that hold that "[w]hen rejecting class certification based on overbreadth . . . the problem lies in the court's ability to ascertain the class, not whether the putative classmembers have been aggrieved."
The Court finds this analysis dispositive of the issue of ascertainability, but will go on to address the five objections Defendant has raised insofar as they raise issues beyond those described in the foregoing analysis.
On November 15, 2011, Safeway.com revised the Special Terms to state that "online and physical store prices, promotions, and offers may differ." Defendant argues that the proposed class definition is "overly broad as to time period," because while it only includes customers who registered before November 15, 2011, it includes customers who purchased groceries after that date.
Although the issue is not fully briefed, the parties dispute the legal effect of the November 15 amendment. Plaintiff invokes the familiar principle that "[p]arties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side."
As discussed infra, this does not affect whether the class definition is sufficiently definite or its members ascertainable. Moreover, to the extent that the Court needs to determine whether the November 15 amendment reduces certain class members' damages, or provides that certain class members suffered no damages, it can do so with a legal determination that is common to the entire class. Therefore, even if Defendant had framed the issue as a Rule 23 issue, the Court would find no obstacle to certification.
Defendant objects that "[p]laintiff's proposed class fails to exclude those customers who returned groceries to Safeway or sought their money back and therefore lack standing to sue." Opp. 37:7-10. For the reasons already discussed, this does not affect the definiteness of the class definition or the ascertainability of its members. Even if the Court were to re-construe this as a Rule 23 argument, it would find that this issue, which Defendant has not demonstrated affects any significant portion of the class, would not defeat certification.
Defendant argues the class is overbroad because certain "customers . . . perceived the price difference and consciously chose to continue using the service." Opp. 38:4-5 (citing Anastasi Decl. ¶¶ 70-76). This is the same very small subgroup of customers whose existence the Court previously found did not defeat predominance. The same argument derives no greater force as an ascertainability question.
Defendant objects that "the class fails to exclude individuals who never looked at or read Safeway's terms and conditions or FAQs." The Court agrees that this defeats certification, but for reasons of predominance rather than ascertainability. This determination does not affect the contractual claims.
Finally, Defendant argues that the class definition includes members who are not "consumers" as defined by the CLRA, namely businesses. Under the CLRA, a "consumer" is "an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes." Cal. Civ. Code § 1761.
Since the Court will not certify a class for purposes of bringing CLRA claims, the issue is moot. But again, since Safeway's records show which customers have registered as businesses, if the Court needed to exclude certain Class Members from CLRA-based recovery, it can do so with a common determination and based on common proof. The speculative possibility that certain businesses might have registered falsely as individuals is insufficient to defeat certification.
"[C]ourts generally find that the numerosity factor is satisfied if the class comprises 40 or more members."
It is hereby ORDERED as follows:
1. Plaintiff's Motion for Class Certification is hereby GRANTED IN PART and DENIED IN PART.
2. The following class is hereby certified pursuant to Rule 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure, solely for the purposes of bringing the breach of contract claim identified in the Amended Complaint in this action:
3. The Court also appoints Plaintiff Michael Rodman as class representative. Pursuant to Fed. R. Civ. P. 23(g), the Court appoints the law firms of Shepherd, Finkelman, Miller & Shah, LLP and Chimicles & Tikellis, LLP as counsel for the Class.
4. The parties are ordered to meet and confer, and to file with the Court a Joint Case Management Statement not later April 8, 2014 addressing the remaining case schedule, a class notice program and any disputed issues. The Court will conduct a Case Management Conference on April 23, 2014 at 2:00 p.m.
