Duane Morris Class Action Review - 2023 - Report - Page 299
action. Id. at *2. The court additionally ruled that since no common issue was present,
the plaintiffs’ claims were not typical of the claims of the class and common issues did
not predominate. The court also found that class certification was inappropriate on the
ground that even if liability could be proven on a class-wide basis, the plaintiffs did not
meet their burden to demonstrate to prove damages for tenants who incurred contractor
expenses on a class-wide basis. Thus, the court reasoned that any such determination
would require individualized damage assessments for thousands of tenant class
members that would overwhelm class-wide issues, thereby making class certification
inappropriate for class members who incurred contracting expenses. For these reasons,
the court denied the plaintiffs’ motion for class certification.
E.
Rulings On Arbitration Of RICO Class Claims
Especially in the consumer context, arbitration agreements with class action waivers are
often pertinent to RICO defenses.
An example in 2022 is Freitas, et al. v. Cricket Wireless, LLC, 2022 U.S. Dist. LEXIS
10843 (N.D. Cal. Jan. 20, 2022), where the plaintiffs, a group of cellular telephone
users, filed a class action alleging that the defendant advertised 4G service and sold
4G-capable phone in markets in which the defendant did not actually provide 4G
coverage in violation of the RICO. The Court previously had granted class certification.
The defendant subsequently filed a motion to compel arbitration of class members’
claims. The class certification order excluded from the class any customers that the
defendant proved was subject to an arbitration agreement. The defendant contended
that there were two means by which class members were subject to arbitration: (i) prior
to May 18, 2014, they would have received a “Quick Start Guide” inside phone boxes,
which included an arbitration provision; (ii) after May 18, 2014, the defendant placed a
“Terms and Conditions” booklet inside phone boxes, which included an arbitration
provision. Id. at *3. The plaintiffs argued that, because the defendant regularly
advertised that it had “no contract” customer service, class members did not believe that
they were entering into contractual relationships with the defendant, and thus could not
have thought they were assenting to any terms and conditions. The court rejected this
argument. It found that there was no evidence that the defendant was using advertising
to trick consumers into unknowingly assenting to arbitration. The court determined that
the defendant’s Quick Start Guide, but not the Terms and Conditions booklet, would
likely require arbitration of class members’ claims in several states. Id. at *16. The court,
however, noted that the Terms and Conditions was not enforceable because it did not
expressly extend a right to reject the terms. Therefore, the court determined that the
defendant failed to meet its burden to prove the existence of valid, written agreements
to arbitrate under the laws of the remaining states. For these reasons, the court granted
in part and denied in part the defendant’s motion to compel arbitration of class
members’ claims.
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Duane Morris Class Action Review – 2023
