ORDER

MARCIA MORALES HOWARD, District Judge.

THIS CAUSE is before the Court on Defendant's Motion to Tax Costs and for Recovery of Attorney's Fees (Doc. No. 219; Motion). Plaintiffs oppose the Motion. See Plaintiffs' Opposition to Defendant's Motion for Costs and for Recovery of Attorney's Fees (Doc. No. 220; Response). The Motion is ripe for the Court's review.

I. Procedural Background

This action has a well documented history. As noted by the Honorable Paul A. Magnuson, United States District Judge, in his Memorandum and Order dated July 22, 2015 (Doc. No. 237),

Id. at 1. As such, this Court will not repeat that history here. Nevertheless, for purposes of resolving the instant Motion, the Court notes that Plaintiffs asserted three claims against Defendant based on its financing of water treatment equipment in Plaintiffs' Third Amended Class Action Complaint (Doc. No. 63; Third Amended Complaint): that Defendant violated the Truth in Lending Act (TILA) in Counts One and Two and violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) in Count Three. See id. at 12-19. Specifically, in Count One, Plaintiffs alleged that Defendant violated 15 U.S.C. § 1637a(9) of TILA by failing to disclose examples of the minimum payments and maximum repayment period under the terms provided in the credit agreement. See id. at 12-14. In Count Two, Plaintiffs alleged that Defendant further violated TILA by failing to comply with Regulation Z, 12 C.F.R. § 226.15, which requires that consumers be given a three day rescission period for all credit agreements secured by a consumer's principal dwelling. See id. at 15. Plaintiffs alleged that Defendant violated Regulation Z by failing to wait to disburse funds, deliver materials, or perform services until after the rescission period expired and Defendant was "reasonably satisfied that the consumer ha[d] not rescinded." See id. at 15-17. In Count Three, which incorporates Count Two, Plaintiffs allege that, by violating TILA as well as the Florida Home Solicitation Sales Act (FHSSA), which also provides for a three-day cancellation period, Defendant has violated FDUTPA. See id. at 17-19.

After certifying a class of Defendant's Florida customers who entered into open-ended financing agreements to purchase water treatment equipment systems, see Order (Doc. No. 105) at 21, the Court granted summary judgment in favor of Defendant as to all three of Plaintiffs' claims. See Order (Doc. No. 200). Plaintiffs appealed and the Eleventh Circuit affirmed the entry of summary judgment. See Lankhorst, 787 F.3d at 1102-03. With this procedural background in mind, the Court turns first to Defendant's request for an award of attorney's fees.

II. Attorney's Fees

The parties do not dispute that neither TILA nor Regulation Z provide for an award of attorney's fees for a prevailing defendant. See Motion at 3; Response at 9. Nevertheless, Defendant contends it is entitled to an award of attorney's fees under Plaintiffs' financing agreement with Defendant and under FDUTPA. See Motion at 3-4. The Court addresses each argument in turn.

A. Contractual Right to Fees

Defendant cites paragraph 23 of the ISPC Open-End Credit Application and Agreement (Doc. No. 141-12; Financing Agreement) which Defendant argues "provide[s] various remedies for Plaintiffs' defaults" and specifically states that if there is a lawsuit and Plaintiffs lose, they agree to pay reasonable attorney's fees and costs to Defendant. See Motion at 3-4. Plaintiffs respond that the attorney's fee provision of the Financing Agreement is inapplicable to Plaintiffs' TILA and FDUTPA claims because those claims do not arise from any default under the terms of the Financing Agreement. See Response at 11-12. Paragraph 23, in its entirety, states:

Financing Agreement ¶23.

Under Florida law, courts strictly construe attorney's fee provisions and assess fees for each claim individually. Keys Lobster, Inc. v. Ocean Divers, Inc., 468 So.2d 360, 363 (Fla. 3d DCA 1985).2 As such "[a]ttorney's fees are not necessarily recoverable as to any and all litigation relating to a contract that provides for attorney's fees." Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 664 (Fla. 5th DCA 1983). Rather, the right to attorney's fees under a particular contract provision is limited by the terms of that provision. Id. For example, in Bay Lincoln-Mercury-Dodge, Inc. v. Transouth Mortgage Corporation of Florida, 531 So.2d 1027 (Fla. 1st DCA 1988), Florida's First District Court of Appeal reversed an award of attorney's fees where the contract only provided for attorney's fees in two separate instances: the buyer's default or a loss due to a buyer's claim against the assignee, neither of which had occurred. Id. at 1028 ("Since the repurchase agreement does not include a provision for attorney's fees, the trial court's application of the retail installment attorney's fee provision to the seller's repurchase obligation was improper.").

Here, the attorney's fee provision in the Financing Agreement is limited to lawsuits brought due to a failure to pay or other default specifically identified in paragraph 23 of the Financing Agreement, such as selling or encumbering the "Purchased equipment." See Financing Agreement ¶23. The contract does not contain a broad attorney's fee provision allowing an award of fees for any and all litigation arising out the Financing Agreement. See, e.g., Caufield v. Cantele, 837 So.2d 371, 379 (Fla. 2002) (reversing denial of award for attorney's fees for misrepresentation claim that was "inextricably intertwined" with the contract where attorney's fee clause provided for fee award "as the result of any litigation `arising out of' the contract). While the Financing Agreement is a part of the same factual transaction upon which Plaintiffs alleged that Defendant failed to comply with federal and state law, and they relied on some of the Financing Agreement provisions to contend that Defendant took a security interest in their real property, there is no dispute that the TILA and FDUTPA claims in this case had nothing to do with a failure to pay or any other breach of the Financing Agreement itself.

Notably, Defendant did assert a counterclaim against Plaintiffs alleging a breach of the Financing Agreement, specifically a default by failing to pay. See ISPC's Answer, Affirmative Defenses, and Counterclaim to Third Amended Class Action Complaint (Doc. No. 67; Counterclaim) at 18-21. However, Defendant stipulated to a dismissal of this claim with "each Party to bear its own attorneys' fees and costs" with respect to that claim. See Amended Joint Stipulation for Dismissal With Prejudice of Defendant's Counterclaim (Doc. No. 215). Thus, Defendant cannot suggest that it is seeking an award of attorney's fees based on Plaintiffs' default.

In interpreting the Financing Agreement, the Court recognizes that the language of paragraph 23 is somewhat broad in that it provided for the payment of attorney's fees if there is a lawsuit without any qualifying terms in that particular sentence. Additionally, paragraph 23 continues with broader language regarding the waiver of a jury trial "in any action brought" by either party against the other, "in any way connected with this Agreement." Nevertheless, the Court must strictly construe the attorney's fee provision, which does not stand alone, but rather is part of the failure to pay provision of the Financing Agreement. Accordingly, the Court concludes that the Financing Agreement limits attorney's fees to those incurred in connection with a failure to pay or any manner of default under the Financing Agreement. Thus, Defendant is not entitled to recover attorney's fees for defending the TILA and FDUTPA claims raised in this action pursuant to the Financing Agreement. See generally Cohen v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1350 (11th Cir. 1996) ("The fee provision in the contract, therefore, does not apply to permit United American to recover attorney's fees for successfully defending the original claim that was not predicated on the contract.")

B. Fees under FDUTPA

Defendant alternatively argues that it should be awarded attorney's fees because FDUTPA provides for such an award. See Motion at 4. The relevant statutory provision states:

Fla. Stat. § 501.2105(1). Notably, the Florida Legislature amended the language of this statute in 1994 to place "an award of prevailing party attorney's fees within the discretion of the trial court." Humane Soc'y of Broward Cnty., Inc. v. Fla. Humane Soc'y, 951 So.2d 966, 971 (Fla. 4th DCA 2007). In Florida Humane Society, the court interpreted this amendment "as a legislative recognition that mandatory fee awards had a chilling effect on consumer plaintiffs bringing suit under the FDUTPA," the primary policy of which is protecting the consuming public "from those who engage in unfair methods of competition, deceptive, or unfair acts or practices in the conduct of any trade or commerce." Id. In determining whether to award fees in its discretion, the Court considers factors such as:

Id. at 971-72.

Plaintiffs contend that the Court should deny Defendant's request for attorney's fees under FDUTPA because their FDUTPA claim was incidental to their TILA claims, Defendant failed to address the above factors that must be considered when awarding fees under FDUPTA, and Defendant failed to submit hours specifically spent litigating the FDUTPA claim. See Response at 12-17. In North American Clearing, Inc. v. Brokerage Computer Systems, Inc., 395 F. App'x 563, 565-66 (11th Cir. 2010), the Eleventh Circuit affirmed a denial of a request for attorney's fees under FDUTPA where the prevailing party "made no reference to the factors Florida courts consider when determining the appropriateness of discretionary fee awards." Indeed, the Eleventh Circuit determined that, in failing to address the factors that could justify a FDUTPA fee award, the appellant also waived the issue for purposes of appeal. See id. at 566.

In the Motion, Defendant notes that Plaintiffs brought a claim under FDUTPA in Count Three of the Third Amended Complaint and quote Florida Statutes section 501.2105. See Motion at 4. However, Defendant says nothing more. It does not make any attempt to address the relevant factors to be considered in determining whether to award discretionary attorneys fees or otherwise attempt to explain why the Court should award fees under FDUTPA. Nor does Defendant explain why an award of attorneys fees under FDUTPA would be appropriate here where the FDUTPA violation alleged in Count Three was based largely on a violation of TILA, which does not provide for attorney's fees. See JES Properties, Inc. v. USA Equestrian, Inc., 432 F.Supp.2d 1283 (M.D. Fla. 2006) (declining to award attorney's fees under FDUTPA when the claim was based on another federal statute that did not provide for fees).

In light of Defendant's failure to make any attempt to support its request for an award of discretionary attorneys fees in this action, the Court declines to find such an award to be warranted.

III. Costs

A. Amount

Rule 54(d)(1), Federal Rules of Civil Procedure (Rule(s)) provides in pertinent part that costs other than attorney's fees "should be allowed to the prevailing party." See Rule 54(d)(1).3 This provision "establishes a presumption that costs are to be awarded to a prevailing party, but vests the district court with discretion to decide otherwise." Chapman v. AI Transport, 229 F.3d 1012, 1038 (11th Cir. 2000) (en banc) (citations omitted). A "district court's discretion not to award the full amount of costs incurred by the prevailing party is not unfettered," however, "`since denial of costs is in the nature of a penalty for some defection on [the prevailing party's] part in the course of the litigation.'" Id. at 1039 (quotation omitted) (alteration in Chapman). Thus, "[t]o defeat the presumption and deny full costs, a district court must have and state a sound basis for doing so." Id. (citation omitted).

Nevertheless, "a court may only tax costs as authorized by statute." EEOC v. W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000) (citation omitted). Thus, a district court may not award costs under Rule 54 "in excess of those permitted by Congress under 28 U.S.C. § 1920." Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1225 (11th Cir. 2002) (citation omitted). Section 1920 allows taxation of the following costs:

28 U.S.C. § 1920.

Plaintiffs do not dispute that Defendant is entitled to an award of costs but object to certain items listed in Defendant's Bill of Costs (Doc. 219-1 at 1-2) as not recoverable under § 1920. Specifically, Plaintiffs assert that Defendant may not recover: "(1) copies made for the convenience of counsel, or for documents in the possession of [Defendant]; and (2) depositions that were not used by [Defendant] and that include charges for the convenience of counsel." See Response at 4. Notably, Defendant has not sought leave to reply to those objections nor has Defendant sought to amend its Motion or Bill of Costs to supplement any deficiencies identified by Plaintiffs.4 Upon review, the Court finds that Defendant's Bill of Costs must be reduced as follows.

i. Copying Costs

Defendant requests $6,465.67 in "fees for exemplification and the costs of making copies." See Affidavit of Murray B. Silverstein (Doc. 219-1 at 3; Silverstein Aff.) ¶ 3.I.5 Although § 1920(4) permits the taxation of costs for certain copies and exemplifications, these items must have been necessarily obtained for use in the case. See W&O, 213 F.3d at 623. To establish necessity, the prevailing party need not show that the documents were introduced into evidence or submitted to the court. See id.; see also Horton Homes, Inc. v. United States, No. CIVA5:01-CV-130-2, 2004 WL 1719354, at *2 (M.D.Ga. Jun. 10, 2004). Instead, the standard is "whether the prevailing party could have reasonably believed that it was necessary to copy the papers at issue." W&O, Inc., 213 F.3d at 623. Notably, the party seeking an award of copying costs bears the burden of establishing necessity. See Scelta v. Delicatessen Support Svcs. Inc., 203 F.Supp.2d 1328, 1339 (M.D. Fla. 2002).

Here, Defendant provides no explanation as to the nature of the copies or why the copies were made. See Cullens v. Ga. Dep't of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994) (finding that a district court did not err in disallowing photocopying costs where the plaintiffs did not provide evidence regarding the documents use or intended use). Moreover, Defendant fails to present any evidence or argument demonstrating that it "could have reasonably believed that it was necessary to copy the papers at issue." W&O, Inc., 213 F.3d at 623. Indeed, the only information Defendant offers in support of its request for copying costs are numerous invoices with a line item for "document duplication" and little other information.6 See Silverstein Aff., Exs. E-G. Although the Silverstein Affidavit generally states that the copies listed in Exhibit G were made in support of various motions, briefs and "deposition preparation," Silverstein does not explain why it was necessary to make those copies. See Silverstein Aff. ¶ 3.G. Because it is Defendant's burden to demonstrate that these costs are recoverable, in the absence of any information to support the necessity of obtaining these copies, the Court will deny Defendant's request to tax "fees for exemplification and the costs of making copies."

ii. Deposition Costs

Defendant also seeks $6,532.80 in "fees for printed or electronically recorded transcripts necessarily obtained for use in the case." See Bill of Costs. In support, Defendant provides the invoices pertaining to the court reporter fees and costs incurred with respect to various depositions, as well as to obtain a transcript of a May 1, 2012 motion hearing before this Court. See Silverstein Aff., Ex. C. Plaintiffs contend that the amount requested should be reduced because Defendant includes charges for depositions that were never used in Defendant's case, as well as a charge for the court reporter's attendance at a deposition Defendant inadvertently failed to cancel. See Response at 7. In addition, Plaintiffs object to an award of the transcription costs identified as "ASCII condensed version, Exhibit Link, Exhibit Scan, additional copies, DVD, and videoconferencing." See id. at 7-9. Plaintiffs maintain that these charges are not recoverable because they were incurred merely for the convenience of counsel. Id. at 8-9. Plaintiffs also argue that Defendant may not recover the videotaping and video-conferencing charges related to the deposition of Plaintiffs' expert, who was to appear live at trial. See id. at 9. In its Motion, Defendant did not offer any reason why the aforementioned charges were necessary for use in this case, and as noted above, Defendant has not responded to Plaintiffs' arguments.

Section 1920(2) allows taxation of costs for "[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case[.]" 28 U.S.C. §1920(2). However, as with the copying costs discussed above, the costs incurred in procuring the transcripts are recoverable only if necessarily obtained for use in the case. See W&O, 213 F.3d at 620-21 ("The question of whether the costs for a deposition [or hearing] are taxable depends on the factual question of whether the deposition was wholly or partially necessarily obtained for use in the case." (internal quotation omitted)). "Courts have generally held that depositions of persons named on the witness list at trial or relied upon in a motion of summary judgment are recoverable as costs necessary for the case." See Kobie v. Fithian, No. 2:12-cv-98-FtM-29DNF, 2014 WL 2215752, at *1 (M.D. Fla. May 28, 2014). In their Response, Plaintiffs state that "[t]here are deposition charges that Plaintiffs challenge because the depositions were never used in [Defendant's] case." See Response at 7. Remarkably, Plaintiffs fail to identify the specific depositions to which they refer. Defendant, equally unhelpful, fails to provide the Court with any information regarding how each of these depositions was "necessarily obtained for use in the case."

Nonetheless, the Court has independently reviewed the motions for summary judgment and witness lists filed in this case and finds that, with one exception, the depositions were necessarily obtained because they were of individuals listed as a witness for trial. See Plaintiffs' Witness List (Doc. 197). Thus, the Court will accept that these depositions, with the exception identified below, are appropriately taxed. See W&O, Inc., 213 F.3d at 621 ("Taxation of deposition costs of witnesses on the losing party's witness list is reasonable because the listing of those witnesses indicated both that the [prevailing party] might need the deposition transcripts to cross-examine the witnesses, and that `the information those people had on the subject matter of this suit was not so irrelevant or so unimportant that their depositions were outside the bound of discovery.'" (internal citation omitted) (quoting Independence Tube Corp. v. Copperweld Corp., 543 F.Supp. 706, 718 (N.D. Ill. 1982))); Daker v. Steube, No. 8:10-cv-1784-T-27TBM, 2012 WL 2384050, at *2 (M.D. Fla. June 25, 2012). However, the Court is unable to discern any reason why the deposition of Reid Westgard was necessary to this litigation as he was not listed as a witness on either party's witness list and his testimony was not cited in the summary judgment briefing. As such, and because Defendant has not come forward with any reason why it was necessary to obtain a copy of this deposition, the Court will not allow Defendant to recover the cost for obtaining Westgard's deposition transcript. The Court further determines that Defendant cannot recover the cost of the court reporter's attendance fee at the deposition Defendant inadvertently failed to cancel. See Silverstein Aff., Ex. C at 6. Plainly such a fee is not necessarily incurred.7

In addition, Plaintiffs' objection to the extraneous items included in the court reporter invoices is well-taken. Plaintiffs argue that the charges for extra copies, ASCII condensed versions, exhibit links, exhibit scans, DVDs and video-conferencing encompass items obtained merely for the convenience of counsel.8 See Response at 8-9. Defendant has not explained the meaning of these charges or their necessity. Thus, based on the current record, the Court agrees with Plaintiffs that these items appear to be merely for convenience, and will reduce the costs awarded accordingly. See Cannioto v. Louisville Ladder, Inc., No. 8:09-cv-1892-T-30TBM, 2011 WL 2473100, at *1 (M.D. Fla. June 22, 2011). Moreover, although not specifically challenged by Plaintiffs, the Court will also subtract the charges for shipping and handling from the total. See Watson v. Lake Cnty., 492 F. App'x 991, 997 (11th Cir. 2012) (holding that the district court abused its discretion in taxing costs for "shipment of the depositions" because "§ 1920 does not authorize recovery of costs for shipment of depositions"); Kobie, 2014 WL 2215752, at *2; Daker, 2012 WL 2384050, at *2.

Finally, Plaintiffs argue that the videography and video-conferencing charges related to the deposition of their expert, David Pelligrinelli, are costs incurred for the convenience of counsel and should not be taxed against Plaintiffs. See Response at 9. The Court agrees that Defendant has failed to establish the video-conferencing charges in this case are properly recoverable. See Watson, 492 F. App'x at 997 (finding that the district court abused its discretion in taxing costs for telephone-conference fees related to the taking of a deposition). With respect to the costs of videotaping the deposition, the Eleventh Circuit instructs that:

See Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460, 464-65 (11th Cir. 1996); see also Watson, 492 F. App'x at 997. Thus, if Defendant noticed the deposition to be videotaped and transcribed, and Plaintiffs did not object to this method of recordation, then Defendant could properly recover those costs. However, Defendant fails to provide the Court with any evidence that it noticed Pelligrinelli's deposition in this manner or that Plaintiffs failed to object. As such, Defendant fails to establish that it is entitled to an award of the costs associated with the video taping, and the Court will not award such costs. Rather, Defendant will be awarded only the cost of the stenographic transcript. See Morrison, 97 F.3d at 465

In light of the foregoing, the Court will tax the following amounts from each of the court reporter invoices:

iii. Witness Fees

Finally, the Court observes that Defendant requests $59.38 in "Fees for witnesses." See Bill of Costs. However, "[u]nder 28 U.S.C. § 1821(b), a witness attending court or a deposition shall be paid a $40.00 attendance fee per day plus travel expenses. This $40.00 is a maximum amount per witness, including expert witnesses." See Rosa v. City of Ft. Myers, No. 2:05-cv-481-FtM-29SPC, 2008 WL 1776458, at *2 (M.D. Fla. Apr. 18, 2008) (citing Morrison, 97 F.3d at 463); see also Zunde v. Int'l Paper Co., No. 3:98CV439-J-20B, 2000 WL 1763843, at *10 (M.D. Fla. July 20, 2000). Here, Defendant seeks to recover $59.38 as a witness fee for one witness, thereby slightly exceeding the $40 attendance fee authorized under the statute. See Silverstein Aff., Ex. H. However, Defendant has not demonstrated that the costs over and above the statutory fee are warranted as travel expenses because it did not provide the Court with any supporting documentation. See 28 U.S.C. § 1821(c)(1) ("A receipt or other evidence of actual cost shall be furnished." (emphasis added)). Accordingly, the Court will reduce the witness fee award to the $40 statutory maximum.

iv. Totals

In light of the foregoing, the Court will reduce the following line items in the Bill of Costs:

The remainder of the items listed in the Bill of Costs are appropriately taxed. Therefore, having made these reductions, the Court will award costs in the amount of $7,651.39.

B. Apportionment

While Plaintiffs do not dispute that Defendant is entitled to certain costs, they argue that each member of the plaintiff class is responsible for his or her pro rata share of the taxable costs. See Response at 1-4. In support, Plaintiffs cite Rand v. Monsanto Company as the seminal case on the rationale behind spreading the liability for costs among the class. Response at 1; see Rand, 926 F.2d 596 (7th Cir. 1991) overruled on other grounds by Chapman v. First Index, Inc., 796 F.3d 783, 786-87 (7th Cir. 2015). In Rand, the district court found the named plaintiff to be inadequate to serve as the representative plaintiff because he was unwilling to risk responsibility for the payment of costs, and denied class certification on this basis. Rand, 926 F.2d at 598. The Seventh Circuit Court of Appeals reversed this decision and instructed that while a representative plaintiff must be conscientious and willing to make some financial commitment to the case, he need not "stake his entire fortune for the benefit of strangers." Id. at 599. Indeed, after observing that class action lawsuits can be "frightfully expensive," the Rand court stated that "[n]o (sane) person would pay the entire costs of a securities class action in exchange for a maximum benefit of $1,135." Id. The court continued:

Id. The Rand court further determined that to the extent the local rules of the court, or ethical rules of the ABA Model Code, prohibited class counsel from covering the costs of the class action litigation, those rules were inconsistent with Rule 23, and therefore may not be applied to class action lawsuits. Id. at 600-01. Thus, having determined that a representative plaintiff may share the cost of a class action lawsuit with his attorney, the Seventh Circuit remanded the case for the district court to reevaluate the merits of class certification without the condition that the representative plaintiff must be willing to bear the entire cost of the litigation. See id. at 601 ("All we have held is that a district court may not establish a per se rule that the representative plaintiff must be willing to bear all (as opposed to a pro rata share) of the costs of the action."). Arguing that any award of costs should be spread among the class members, Plaintiffs cite to several cases where courts, following Rand, have found that to evaluate the adequacy of a representative plaintiff, the relevant inquiry focuses on the plaintiff's willingness to pay only their pro rata share of the expenses. See Motion at 3 (citing, e.g., Sandlin v. Shapiro & Fishman, No. 95-213-CIV-FTM-17D, 1997 WL 155418, at *6 (M.D. Fla. Mar. 18, 1997); Rivera v. Fair Chevrolet GEO P'ship, 165 F.R.D. 361, 365 (D. Conn. 1996)).

Upon careful review, the Court finds that Rand and its progeny are inapposite to the issue before this Court. The authority Plaintiffs cite stands for the proposition that a class representative need not be willing to fully cover the cost of prosecuting the class action claim. The Rand court explained that the representative plaintiff and his counsel can agree that counsel will advance the costs of pursuing the class action claim with the understanding that the representative plaintiff is potentially responsible only for his pro rata share of those costs. See Rand, 926 F.2d at 600-01. According to Rand, the lawyer who voluntarily undertakes to represent the class may be left covering the remainder of the costs because he is unable to collect those costs from his client, the class. Id. at 600. This decision and the cases that follow it do not address who is responsible for the taxable costs in the event a judgment is entered against the class. Regardless of whether an attorney can voluntarily agree to undertake the cost of pursuing a class action claim, nothing in Rand or its progeny suggests that passive members of a Rule 23 class, who have not taken any action to pursue the claim or expressed their consent to the risk of these costs, may nonetheless be held liable for the taxable costs in the event the class claim fails. Plaintiffs do not cite any authority to support this proposition.

Although it is not binding authority, the Court is persuaded by the reasoning in Earley v. Superior Court of Los Angeles Cnty., 95 Cal.Rptr.2d 57 (Cal. Ct. App. 2000). Unlike Rand, the court in Earley considered the same issue raised here: whether absent class members can be held liable for a successful defendant's costs. See Earley, 95 Cal. Rptr. 2d at 64.12 Noting that the issue was a novel one, the court relied on the rationale expressed in other cases for treating absent class members differently than other litigants to conclude that class members cannot be subjected to an award of costs. Id. at 64. Specifically, the Earley court cited the Supreme Court's decision in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). Id. In Phillips, the Supreme Court determined that absent class plaintiffs are not afforded the same due process protections as absent defendants in non-class suits. See Phillips, 472 U.S. at 806-12. The Court explained that fewer burdens are imposed on class plaintiffs in that:

Phillips, 472 U.S. at 810 (emphasis added) (internal footnote omitted). The Supreme Court recognized that absent plaintiffs "are entitled to some protection from the jurisdiction of a forum State which seeks to adjudicate their claims," but, because of the differences in the burdens imposed, the "opt-out" mechanism for creating a class of plaintiffs was sufficient to satisfy the Due Process Clause of the Fourteenth Amendment. Id. at 811-14. In contrast, the Due Process Clause requires greater protection for an absent defendant given the burdens imposed on defendants, including potential liability for court costs and attorney's fees. Id. at 808. In light of the reasoning in Phillips, the undersigned agrees with Earley that the members of this "opt-out" class cannot be held liable for their pro rata share of the taxable costs.13 See Earley, 95 Cal. Rptr. 2d at 64. Other federal authority supports this finding as well. See Wright v. Schock, 742 F.2d 541, 545 (9th Cir. 1984) ("Absent class members have no obligation to pay attorneys' fees and litigation costs, except when they elect to accept the benefit of the litigation."); Lamb v. United Sec. Life Co., 59 F.R.D. 44, 48-49 (S.D. Iowa 1973) ("[T]he Court has concluded that members of the class other than plaintiffs, who do not request exclusion, are not parties and would not be liable for costs even though otherwise bound by the judgment, whether favorable or unfavorable."); In re "Agent Orange" Prod. Liab. Litig., 100 F.R.D. 718, 732 (E.D.N.Y. 1983) (approving a class notice which states in part that "You will not be charged with costs or expenses whether or not you remain a member of the class"); see also Gay v. Waiters' & Dairy Lunchmen's Union, 86 F.R.D. 500, 502 n.3 (N.D. Cal. 1980) (noting the possibility that costs could be taxed against a plaintiff class, but observing that attempting to collect against the myriad class members would be prohibitively expensive and not worthwhile because "the representative plaintiffs are themselves jointly and severally liable for the whole amount"); William B. Rubenstein, Newberg on Class Actions § 16:13 (4th ed.) ("Absent class members who do not request exclusion are passive and not considered formal parties to the litigation. They are not liable for costs, though they may be otherwise bound by the judgment, whether favorable or unfavorable.").

Moreover, although there is some merit to Plaintiffs' argument that requiring a representative plaintiff to bear full responsibility for a defendant's taxable costs may deter class action lawsuits, the Court agrees with the finding in Earley that a pro rata approach would be "manifestly unfair" to the class members. See Earley, 95 Cal. Rptr. 2d at 65. As explained in Earley:

Id. at 66 (quoting Van de Kamp v. Bank of Am. Nat'l Trust & Savings Ass'n, 251 Cal.Rptr. 530, 556-57 (Cal. Ct. App. 1988)). Indeed, "the named representative plaintiff should not be allowed to use without consent the resources or credit of unnamed class members to finance the action." Id. at 68. Accordingly, the Court rejects Plaintiffs' contention that Defendant's costs must be taxed, pro rata, against the class as a whole.

To the extent Plaintiffs contend that they should only be liable for their pro rata share of the costs, regardless of whether Defendant can recover taxable costs from the class members, this argument is also unavailing. The Seventh Circuit Court of Appeals considered a similar argument in White v. Sundstrand Corp., 256 F.3d 580 (7th Cir. 2001). The Seventh Circuit explained that if representative plaintiffs are responsible for only their pro rata portion of the prevailing defendants' taxable costs, this rule would mean that "the defendants must bear most of their own costs: the larger the class, the greater the proportion of costs that prevailing defendants must bear." White, 256 F.3d at 585.14 The White court rejected this proposition given that Rule 54 allows a prevailing party to recover its costs, and "nothing in Rule 23 suggests that cost-shifting is inapplicable to class actions." Id. at 585-86. Moreover, the court found no justification for requiring the defendant to bear those costs. Id. at 586. In so finding, the Seventh Circuit acknowledged its reasoning in Rand regarding the potential for discouraging class actions across the board, but found that "[i]t does not follow from this, however, that the prevailing defendant must bear the costs." Id. at 586. Indeed, as discussed in Rand, counsel for representative plaintiffs can "eliminate the financial disincentive that costs awards otherwise would create" by agreeing to bear the risk of a costs award, as well as the risk that their time will go uncompensated. Id. While the undersigned has no knowledge of whether Plaintiffs have made any such arrangement with their counsel in this matter, the foregoing authority convinces the Court that Plaintiffs may not require the absent class members or the prevailing party Defendant to share in the liability for the taxable costs. Rather, as succinctly stated in White, "[Two] persons caused this litigation to be brought, caused the costs to be incurred, and should make the prevailing party whole." Id.

IV. Conclusion

The Court finds that Defendant has not made a sufficient showing that it is entitled to fees, and its Motion is due to be denied to the extent that it seeks such relief. However, Defendant is entitled to certain costs recoverable pursuant to § 1920, and the Motion is due to be granted to the extent the Court will award such costs in the amounts discussed herein. The Court rejects Plaintiffs' contention that they are liable only for their pro rata share divided amongst the class members, and therefore will award Defendants the full amount of its taxable costs. In accordance with the foregoing, it is

ORDERED: