The opinion
UNITED STATES DISTRIGF COURT
EASTERN DISTRICT OF NEW YORK
ANTHONY OLIVER, TERRY GAYLE QUINTON, RAN
SHAWN O’KEEFE, ANDREW AMEND, SUSAN vo-cy 56 5, vce. Comey |
BURDETTE, GIANNA VALDES, DAVID ~e ( ) (SUB)
MOSKOWITZ, ZACHARY DRAPER, NATE
THAYER, MICHAEL THOMAS REID, ALLIE
STEWART, ANGELA CLARK, JOSEPH
REALDINE, RICKY AMARO, ABIGAIL BAKER,
JAMES ROBBINS IV, EMILY COUNTS, DEBBIE
TINGLE, NANCI-TAYLOR MADDUX, SHERIE
MCCAFFREY, MARILYN BAKER, WYATT
COOPER, ELLEN MAHER, SARAH GRANT and
GARY ACCORD on behalf of themselves and all
others similarly situated,
Plaintiffs,
-against-
AMERICAN EXPRESS COMPANY and
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.,
Defendants.
NICHOLAS G. GARAUFIS, United States District Judge.
Before the court are Plaintiffs’ request to amend the Class
Certification Order and Amex’s opposition to amendment. (Let-
ter to Amend Class Cert. (Dkt. 221); Amex Amend Response
(Dkt. 222},} For the reasons discussed below, the court GRANTS
Plaintiffs’ request to certify non-rewards credit card classes for
D.C., Kansas, and Tlinois, and DENIES Plaintiffs’ request to cer-
tify a non-rewards credit card for North Carolina.
Rule 23 provides district courts with class action manage-
ment tools, and it is under the flexibility established by these
tools that the court modifies the Class Certification Order. (Class
Cert. M&O (Dkt. 22.0)); see also In re Flag Telecom Holdings, Ltd.
Sec. Litig., 574 F.3d 29, 37 (2d Cir. 2009) (citing Fed. R. Civ. P.
23(c)(1)(C), 23(c)(5)); Haley v. Tehrs. Ins. & Annuity Ass’n, 344
F.R.D. 284, 294 (S.D.N.Y. 2023) (“[T]his case could be ripe for
class treatment using tools permitting courts to identify sub-
classes of more homogenous groups defined by common legal or
factual questions.”). In the Class Certification Order, the court
granted class certification for the proposed debit card class and
denied it for the proposed credit card class. (Class Cert. M&O at
58-59.) The credit card class failed because Plaintiffs failed to es-
tablish that common issues predominated. (fd. at 39, 53-56.)
Plaintiffs’ expert’s model of harm did not show, through common
evidence, that class members’ annual fees net of rewards would
stay the same or decrease in the but-for world. (Id. at 53-54.)
Because not all credit card class members have rewards credit
cards that charge annual fees, Plaintiffs’ expert’s failure to pro-
vide common evidence about annual fees net of rewards would
not affect non-rewards credit card class members’ ability to sat-
isfy the Ruie 23(b) (3) predominance requirement. Ud. at 55-56.)
The court declined to certify non-rewards subclasses because
Plaintiffs had not shown that the proposed class representatives
were part of the non-rewards subclass, and therefore the court
could not establish that the class representatives would ade-
quately represent the class as required by Rule 23(a) (4). (d.) For
three statewide classes, they now do so. (See Letter to Amend
Class Cert., Exs. 1-11 (Dkts. 221-2 to 221-12) (providing evi-
dence that the credit cards used by proposed class
representatives Ricky Amaro, Andrew Amend, and Sarah Grant
did not offer rewards or charge an annual fee).)
The court therefore amends the Class Certification Order to in-
clude class certification for non-rewards credit card classes for
Illinois, Kansas, and D.C. The court modifies the proposed credit
card class as follows:
All card account holders, who are natural persons, and
whose account billing address was in [State] during the
applicable Class Period, and whose Visa, Mastercard, or
Discover General Purpose Credit or Charge Card ac-
count does not offer credit card rewards or charge an
annual fee and was used by an account holder or an au-
thorized user for a purchase of a good or service from a
Qualifying Merchant during the Class Period that oc-
curred in [same State].
The court does not find, however, that amendment is proper for
the North Carolina non-rewards card subclass because Plaintiffs
fail to satisfy the adequacy requirement under Rule 23(a). The
proposed class representative, Shawn O’Keefe, had a credit card
that charged an annual fee so the representative is not a part of
the class. (See Letter to Amend Class Cert., Ex. 18 (Dkt. 221-19}.)
Amex raises multiple objections. First, Amex faults Plain-
tiffs for not formally moving to amend the Class Certification
Order under Rule 23(c)(1)(C). (See Amex Amend Response at
1.) But at the January 16, 2024 hearing, counsel for Plaintiffs
moved in court to supplement the record to make the sufficient
factual showing to establish Rule 23(a) adequacy. (See Tr. for
Jan. 16, 2024 Hearing at 41-42.) See also Laurent v. Pricewater-
houseCoopers LLP, 565 F. Supp. 3d 543, 548 (S.D.N.Y. 2021)
(“Once a class is certified, Rule 23 provides district courts with
broad authority at various stages in the litigation to revisit class
certification determinations and to redefine or decertify classes
as appropriate.”) Amex also contends that the non-rewards credit
card class does not satisfy the predominance requirement. (See
Amex Amend Response at 1.) But for the reasons described in
the Class Certification Order and outlined above, a subclass of
non-rewards credit cardholders that have no annual fee satisfy
the predominance requirement. (See Class Cert. M&O at 53-56.)
Amex’s objections are therefore unavailing.
The court considers whether amendment would prejudice
the defendants. See In re Harcourt Brace Jovanovich, Inc. Sec.
Litig., 838 F. Supp. 109, 115 (S.D.N.Y. 1993). The court finds
that it would not. The reasoning of the Class Certification Order
is unchanged; the only change is a showing that class members
are part of a subclass created in the Class Certification Order.
Plaintiffs submitted evidence that proposed class representatives
were part of the subclass within seven days of the Class Certifi-
cation Order. (See Letter to Amend Class Cert. at 1-2.) The
methodology to calculate damages for the non-rewards credit
card subclass is likely to be substantially the same as the credit
card class because Plaintiffs’ expert calculated damages assuming
no increase in annual fees net of rewards. (See Lamb Report (Dkt.
138-4) { 272.) Damages calculations need not be exact at the
class certification stage of litigation. See Comcast Corp. v. Beh-
rend, 569 U.S. 27, 35 (2013). Plaintiffs’ damages calculation,
which does not account for offsets from annual fees net of re-
wards, is consistent with the theory of liability for the non-
rewards credit card subclass. For these reasons, Amex is not be
prejudiced by this amendment of the Class Certification Order.
In sum, the court GRANTS Plaintiffs’ request to certify non-re-
wards credit card classes for D.C., Kansas, and Illinois, and
DENIES Plaintiffs’ request to certify a non-rewards credit card for
North Carolina.
SO ORDERED.
Dated: Brooklyn, New York
January 19, 2024 jo. I,
s/Nicholas G. Garaufis
NICHOLAS G. GARAUFIS//
United States District Judge