Sihler v. Global e-Trading, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JANET SIHLER and

CHARLENE BAVENCOFF,

Individually and

on Behalf of All Others

Similarly Situated,

Plaintiffs,

v. Case No. 8:23-cv-1450-VMC-JSS

GLOBAL E-TRADING, LLC,

d/b/a Chargebacks911,

GARY CARDONE, and

MONICA EATON,

Defendants.

/

ORDER

This matter is before the Court on consideration of

Plaintiffs Janet Sihler and Charlene Bavencoff’s Sealed

Motion for Class Certification (Doc. # 121), filed on May 21,

2024. Defendants Global E-Trading, LLC, Gary Cardone, and

Monica Eaton responded on June 14, 2024. (Doc. # 134).

Plaintiffs replied on July 5, 2024. (Doc. # 140; Doc. # 147).

Defendants filed a surreply on August 1, 2024. (Doc. # 151).

For the reasons that follow, the Motion is granted.

I. Background

Plaintiffs initiated this putative class action against

Defendants on June 28, 2023. (Doc. # 1). The operative

complaint is the third amended complaint, in which Plaintiffs

assert two RICO claims: (1) for violation of 18 U.S.C. §

1962(c) (Count 1) — a substantive RICO claim; and (2) for

violation of 18 U.S.C. § 1962(d) (Count 2) — a RICO conspiracy

claim. (Doc. # 102). The essence of Plaintiffs’ claims is

that Defendants conspired with the architects of a Keto diet

pill scam (“the Keto Racket”), including Brightree Holdings

Corporation, to keep the Keto Racket alive and profitable.

The Keto Racket allegedly “made millions of dollars by using

false promises of ‘free’ Keto diet pill bottles to collect

consumers’ payment card information and then charge them for

the ‘free’ bottles alongside those they’d agreed to pay for.”

(Doc. # 121 at 2). When a purchase was made by a consumer

with a credit or debit card, the payment was processed so

that the funds were transferred between the purchaser’s bank

or credit card company and the Keto Racket’s merchant account

or “MID.” (Doc. # 102 at 3-7).

However, disgruntled purchasers, like the Plaintiffs,

would frequently “chargeback” the transactions through their

credit card companies in an attempt to receive a refund from

the Keto Racket. This is where Defendants, Chargebacks911 and

two of its executives, Cardone and Eaton, came in. Defendants

worked to dispute the Keto Racket’s chargebacks and, thus,

keep the Keto Racket’s chargeback percentages low enough that

banks and credit card companies would continue handling

transactions with the Keto Racket. (Id.). Defendants worked

to reduce chargebacks in a variety of ways, including creating

additional MIDs for the Keto Racket, handling the Keto

Racket’s chargeback representments, and orchestrating a huge

number of sham microtransactions to artificially reduce the

percentage of chargebacks on the Keto Racket’s MIDs. (Id. at

3-10). By keeping its chargeback rate down, the Keto Racket

could continue having their fraudulent sales of diet pills

processed by credit card companies and banks. Such payment

processing was the scheme’s “lifeblood.” (Id. at 3).

Now, Plaintiffs move to certify a nationwide class,

defined as follows:

All consumers in the United States who, within the

applicable statute of limitations period until the

date notice is disseminated, were billed for

shipments of either three bottles or five bottles

of Ultrafast Keto Boost, Insta Keto, or

InstantKeto.

(Doc. # 121 at 2). Plaintiffs exclude from the class “any

consumer who received a full refund for the ‘free’ products

for which they were improperly charged, governmental

entities, Defendants, any entity in which Defendants have a

controlling interest, and Defendants’ officers, directors,

affiliates, legal representatives, employees, co-

conspirators, successors, subsidiaries, and assigns. Also

excluded from the Class is any judge, justice, or judicial

officer presiding over this matter and the members of their

immediate families and judicial staff.” (Id. at 2 n.1).

Defendants oppose class certification. (Doc. # 134).

Plaintiffs have replied (Doc. # 147), and Defendants

surreplied. (Doc. # 151). The Motion is ripe for review.

II. Legal Standard

To certify a class action, the moving party must satisfy

a number of prerequisites. First, the named plaintiff must

demonstrate standing. Vega v. T-Mobile USA, Inc., 564 F.3d

1256, 1265 (11th Cir. 2009). Second, the putative class must

meet all four requirements enumerated in Federal Rule of Civil

Procedure 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;

(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).

Third, the putative class must fit into at least one of

the three class types defined by Rule 23(b). Vega, 564 F.3d

at 1265. Relevant to this case, Rule 23(b)(3) permits

certification of a class where (1) common questions of law or

fact predominate over questions affecting class members

individually, and (2) a class action is the superior method

for resolving these common questions. Id.

The party moving to certify any class or subclass

ultimately bears the burden of proving that all prerequisites

are met. Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225,

1233–34 (11th Cir. 2016).

III. Analysis

A. Ascertainability of Class

“Ascertainability is an implied prerequisite of Rule

23.” Cherry v. Dometic Corp., 986 F.3d 1296, 1302 (11th Cir.

2021). “Class representatives bear the burden to establish

that their proposed class is ‘adequately defined and clearly

ascertainable,’ and they must satisfy this requirement before

the district court can consider whether the class satisfies

the enumerated prerequisites of Rule 23(a).” Id. (citation

omitted).

The Eleventh Circuit has “collapsed class definition and

ascertainability into one inquiry. A class is inadequately

defined if it is defined through vague or subjective criteria.

And without an adequate definition for a proposed class, a

district court will be unable to ascertain who belongs in

it.” Id. (citations omitted). However, “[b]ecause

administrative feasibility has no connection to Rule 23(a),

it is not part of the ascertainability inquiry.” Id. at 1303.

Plaintiffs argue the class is ascertainable using

objective criteria “concerning the consumer’s location,

purchase, and date of purchase.” (Doc. # 121 at 8). They

intend to use a spreadsheet “detailing the names, addresses,

email addresses, and purchase dates of everyone to whom the

Keto Racket’s fulfillment company, The Fulfillment Lab,

shipped three bottles or five bottles of Ultrafast Keto Boost,

Insta Keto, or InstantKeto” to identify members of the class.

(Id. at 9; Doc. # 112-2 at ¶¶ 39-44).

Defendants disagree, insisting that the putative class

is “not ascertainable, as Plaintiffs lack records of class

members’ identities or reliable records of which consumers

received full refunds.” (Doc. # 134 at 2, 20). They insist

that no objective criteria exist “for the Court to determine

how to parse out those putative class members who were not

harmed because they have been made whole through refunds.”

(Id. at 20). Additionally, Defendants assert that the

Fulfillment Labs’ spreadsheet “does not include names, email

addresses, or mailing addresses.” (Id.; Doc. # 134-1 at ¶ 6).

The Court rejects Defendants’ arguments. Most

importantly, Defendants are incorrect about the contents of

the spreadsheet. The spreadsheet contains the names, email

addresses, mailing addresses, and phone numbers for hundreds

of thousands of putative class members, and is the same

spreadsheet used in the related California action. (Doc. #

140-3 at ¶ 12; Doc. # 140-2 at Ex. 19). As for putative class

members who may have received full refunds, this argument

goes towards administrative feasibility. See Cherry, 986 F.3d

at 1304 (“[A]dministrative feasibility is not a requirement

for certification under Rule 23.”). Regardless, as Plaintiffs

point out, Defendants’ “business records reflect the status

of over 20,000 chargebacks made by putative class members

along with their respective names and email addresses as well

as information about the identities of more than 6800 refund

recipients.” (Doc. # 147 at 3).

In short, the Court determines that the putative class

is sufficiently ascertainable.

B. Rule 23(a) Requirements

The putative class must meet all four requirements

outlined in Rule 23(a): “numerosity, commonality, typicality,

and adequacy of representation.” Vega, 564 F.3d at 1265

(quoting Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d

1181, 1188 (11th Cir. 2003)).

1. Numerosity

Federal Rule of Civil Procedure 23(a)(1) requires that

the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). While “mere

allegations of numerosity are insufficient,” Rule 23(a)(1)

imposes a “generally low hurdle,” and “a plaintiff need not

show the precise number of members in the class.” Manno v.

Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674, 684

(S.D. Fla. 2013); see Evans v. U.S. Pipe & Foundry Co., 696

F.2d 925, 930 (11th Cir. 1983) (explaining that the class

representative is not required to establish the exact number

in the proposed class). “Nevertheless, a plaintiff still

bears the burden of making some showing, affording the

district court the means to make a supported factual finding

that the class actually certified meets the numerosity

requirement.” Manno, 289 F.R.D. at 684 (quoting Vega, 564

F.3d at 1267).

Notably, Defendants do not challenge the numerosity

requirement here. And the Court agrees with Plaintiffs that

the numerosity requirement is met. The class far exceeds the

general minimum of forty members. See Cox v. Am. Cast Iron

Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (“[T]he trial

court’s decertification of the 47-member class for lack of

numerosity was by no means compelled by Rule 23 or the case

law. As the trial judge who originally certified the class

pointed out, citing 3B Moore’s Federal Practice ¶ 23.05[1] at

n. 7 (1978), while there is no fixed numerosity rule,

‘generally less than twenty-one is inadequate, more than

forty adequate, with numbers between varying according to

other factors.’”). Shipping data from the Keto Racket’s

fulfillment company indicates that the “InstaKeto/Instant

Keto product was shipped to 121,059 individuals in the United

States, 94,494 of which were shipped either 3 or 5 bottles.”

(Doc. # 121 at 10; Kneupper Decl. at ¶ 43).

2. Commonality

Federal Rule of Civil Procedure 23(a)(2) requires that

there be “questions of law or fact common to the class.” Fed.

R. Civ. P. 23(a)(2). Commonality pertains to the

characteristics of the group or class as a whole, unlike

typicality which refers to the individual characteristics of

the class representative as compared to those of the class

members. Piazza v. Ebsco Indus. Inc., 273 F.3d 1341, 1346

(11th Cir. 2001) (citing Prado–Steiman v. Bush, 221 F.3d 1266,

1279 (11th Cir. 2000)).

Commonality “does not require complete identity of legal

claims.” Johnson v. Am. Credit Co. of Ga., 581 F.2d 526, 532

(5th Cir. 1978).1 In fact, commonality can be satisfied even

with some factual variations among class members. Armstead v.

Pingree, 629 F. Supp. 273, 280 (M.D. Fla. 1986).

In Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011),

the Supreme Court clarified the commonality requirement for

class certification by specifically rejecting the use of

generalized questions to establish commonality. Noting that

“any competently crafted class complaint literally raises

common questions,” the Court focused the required discussion:

What matters to class certification . . . is

not the raising of common ‘questions’ — even

in droves — but, rather the capacity of a

class-wide proceeding to generate common

answers apt to drive the resolution of the

litigation. Dissimilarities within the

proposed class are what have the potential to

impede the generation of common answers.

Id. at 350 (internal citation omitted) (emphasis in

original). The Court explained that the “common contention”

1 The Eleventh Circuit, in an en banc decision, Bonner v. City

of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as

precedent decisions of the former Fifth Circuit rendered

prior to October 1, 1981.

underpinning a finding of commonality “must be of such a

nature that it is capable of class wide resolution — which

means that 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.” Id.

“[T]o establish a federal civil RICO violation under §

1962(c), the plaintiffs must satisfy four elements of proof:

(1) conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity,” as well as an “injury” to “business

or property” that was “by reason of” the RICO violation.

Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282-83 (11th

Cir. 2006) (citation and internal quotation marks omitted).

As for the conspiracy claim, “[a] plaintiff can establish a

RICO conspiracy claim in one of two ways: (1) by showing that

the defendant agreed to the overall objective of the

conspiracy; or (2) by showing that the defendant agreed to

commit two predicate acts.” Am. Dental Ass’n v. Cigna Corp.,

605 F.3d 1283, 1293 (11th Cir. 2010) (citation omitted).

According to Plaintiffs, their “RICO claims readily

satisfy the commonality requirement because these claims

focus on Defendants’ fraudulent scheme and ‘derive from a

single course of conduct.’” (Doc. # 121 at 11) (quoting

Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir.

2014)). Plaintiffs claim that many of the issues they must

prove for their RICO claims can be answered in one fell swoop

for the class with common evidence, including “the existence

of the Keto Racket as an associated-in-fact enterprise or

[Chargebacks911’s] role in conducting the Keto Racket’s

affairs are questions can be answered ‘in one stroke’ with

common evidence.” (Id. at 11-12). “Whether or not Defendants

conspired to violate 1962(c) by masterminding the

microtransactions scheme the Keto Racket used to conceal its

Keto pills scam is likewise a question that can be resolved

with evidence common to the Class.” (Id. at 12).

Notably, a district court in the Southern District of

California has granted class certification in Plaintiffs’

RICO action against other members of the Keto Racket. See

Sihler v. Fulfillment Lab, Inc., No. 20CV1528-LL-DDL, 2023 WL

4335735 (S.D. Cal. June 23, 2023). The court there found that

the commonality requirement was met “because whether there

are RICO violations raises common questions that are capable

of classwide resolution.” Id. at *6. The court highlighted

that “Plaintiffs have sufficiently shown that the pricing

information is likely to deceive class members.” Id.

Indeed, other courts have noted that the “issues of law

and fact in making out a RICO violation will generally be

common to all Plaintiffs’ claims, because Plaintiffs are

asserting a single fraudulent scheme by the defendants which

injured each plaintiff.” In re United Energy Corp. Solar Power

Modules Tax Shelter Invs. Sec. Litig.., 122 F.R.D. 251, 255

(C.D. Cal. 1988); see also Williams v. Mohawk Indus., Inc.,

568 F.3d 1350, 1356 (11th Cir. 2009) (“[C]laims under RICO,

in contrast with claims under Title VII, are often susceptible

to common proof.”); Belin v. Health Ins. Innovations, Inc.,

337 F.R.D. 544, 557 (S.D. Fla. 2021) (“In addition to raising

common questions that focus on a scheme, RICO claims likewise

raise questions of a standardized course of conduct.”).

Defendants do not challenge commonality, although they

raise arguments as to the more demanding predominance

requirement that will be addressed later. See Jackson v. Motel

6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997)

(“The predominance inquiry . . . is ‘far more demanding’ than

Rule 23(a)’s commonality requirement.” (citation omitted)).

Considering the common course of conduct and nature of

the RICO claims here, the Court determines that the

commonality requirement is met.

3. Typicality

The focus of Rule 23(a)(3) typicality is whether the

class representative’s interests are so aligned with the

proposed class that she may stand in the class’s shoes for

the purposes of the litigation and bind it in a judgment on

the merits. See Busby v. JRHBW Realty, Inc., 513 F.3d 1314,

1322–23 (11th Cir. 2008) (“[T]ypicality measures whether a

sufficient nexus exists between the claims of the named

representatives and those of the class at large.”).

To establish typicality, “there must be a nexus between

the class representative’s claims or defenses and the common

questions of fact or law which unite the class.” Kornberg v.

Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.

1984). When the class representative’s injury is different

from that of the rest of the class, her claim is not typical

and she cannot serve as the class representative. Murray v.

Auslander, 244 F.3d 807, 811 (11th Cir. 2001). Moreover, when

proof of the class representative’s claim would not

necessarily prove the claims of the proposed class members,

the class representative does not satisfy the typicality

requirement. Brooks v. S. Bell Tel. & Tel. Co., 133 F.R.D.

54, 58 (S.D. Fla. 1990). “Typicality, however, does not

require identical claims or defenses.” Kornberg, 741 F.2d at

1337. “A factual variation will not render a class

representative’s claim atypical unless the factual position

of the representative markedly differs from that of other

members of the class.” Id.

According to Plaintiffs, typicality is satisfied:

“Plaintiffs, like the prospective class members, were

overcharged as part of a scheme that: (1) misrepresented the

price of the Keto products and then overcharged each consumer;

(2) was aided, abetted, and enacted by CB911; and (3)

concealed as part of a conspiracy agreed to by all three

Defendants. Any one of these elements is enough.” (Doc. # 121

at 13); see also Sihler, 2023 WL 4335735, at *7 (holding that

“Plaintiffs have shown that each member’s claim arises from

the same course of conduct, each class member has the same

injury, and each member makes similar legal arguments, thus

satisfying typicality” and noting that “Plaintiff Sihler’s

claim is reasonably coextensive with those of absent class

members” even though it was unclear whether Sihler had viewed

the exact same “Buy 3, Get 2 Free” advertisement as some

putative class members).

Yet, Defendants argue that both Plaintiff Sihler and

Plaintiff Bavencoff are atypical of the class. (Doc. # 134 at

21-24). According to Defendants, Bavencoff is atypical of the

class because she “is subject to the unique defense of

reliance that threatens to become the focus of the

litigation.” (Id. at 22). Defendants reason that Bavencoff

“is unable to testify that the advertising at issue in this

case (the Buy X Get Y Free claim) is what she relied on — as

opposed to the weight loss claims — when she made her

purchasing decision.” (Id. at 22).

The Court disagrees. Despite Defendants’ efforts to cast

Bavencoff’s deposition testimony as problematic, her

testimony does not undermine Plaintiffs’ typicality. Indeed,

Bavencoff testified that she probably would not have made the

purchase of the keto diet pills if she knew she would be

charged $198.70, the total she was charged for all five

bottles. (Doc. # 134-6 at 42:24-43:18). She testified that

she thought she would only have to pay for three bottles.

(Id. at 43:9-11). Although she decided to get a refund after

the diet pills failed to work for her (Id. at 47:14-24), her

testimony nevertheless reflects that she was a victim of the

Keto Racket’s pricing misrepresentations. That is, she was

injured by the pricing misrepresentations just like the other

members of the putative class. Bavencoff’s additional

declaration also supports this conclusion. See (Doc. # 112-6

at ¶ 5) (“I understood that I would be receiving additional

bottles of ‘Ultra Fast Keto Boost’ at no extra cost given the

number that I had purchased. However, I was shipped five

bottles of ‘Ultra Fast Keto Boost’ and was charged $39.74 for

each of the five bottles for a total price of $198.70. The

charges for the additional bottles of ‘Ultra Fast Keto Boost’

were without my knowledge or authorization.”).

As to Plaintiff Sihler, Defendants maintain she is

atypical of the putative class because she “will face a strong

unique defense on the issue of causation.” (Doc. # 134 at

23). True, Sihler equivocated during her deposition testimony

about the name of the keto diet pills she purchased and could

not recall what advertisement she saw online. (Doc. # 134-7

at 67:2-69:24, 77:3-14, 79:22-80:25). Sihler also changed her

testimony during her deposition over whether she saw pricing

information on the website when she made her purchase of the

product and how she discovered the overcharge. (Id. at 47:20-

25, 53:15-54:10, 56:13-58:1, 100:20-25).

These minor issues with Sihler’s deposition testimony do

not convince the Court that Sihler’s claim is atypical of the

putative class. Despite some inconsistencies, Sihler remained

consistent in her deposition that she purchased keto diet

pills based on misrepresentations in the advertising about

the number of bottles for which she would be charged (a ‘Buy

3, Get 2 free’ advertisement). (Id. at 96:8-97:4). Just as

with Bavencoff, Sihler’s sworn declaration further supports

that her claims are typical. See (Doc. # 112-4 at ¶¶ 5-6)

(“The website promoted a ‘Buy 3 bottles, Get 2 free’ promotion

for the ‘Instant Keto’ product, and I decided to purchase the

‘Instant Keto’ product with the expectation that I would be

billed for three bottles at the price of $39.74 for each

bottle, and that I would receive two more bottles for no

additional cost such that the total purchase price would be

$119.12. Despite the advertisements for the ‘Instant Keto’

product, my debit card was charged $198.70, which was $39.74

for each bottle. Several days after ordering the product, I

received five bottles that were labeled ‘Instant Keto.’”).

Thus, there does not appear to be a strong causation argument

unique to Sihler. Nor does the Court consider Sihler atypical

because she purchased the product at a time when Defendants

were allegedly not providing services to the Keto Racket or

has a “rage” about her purchase of the product.

In short, the typicality requirement is met for both

Plaintiffs Bavencoff and Sihler.

4. Adequacy

Rule 23(a) requires that “the representative parties

will fairly and adequately protect the interests of the

class.” Fed. R. Civ. P. 23(a)(4). The adequacy of

representation analysis involves two inquiries: “(1) whether

any substantial conflicts of interest exist between the

representatives and the class, and (2) whether the

representatives will adequately prosecute the action.” Valley

Drug Co., 350 F.3d at 1189 (quoting In re HealthSouth Corp.

Sec. Litig., 213 F.R.D. 447, 460–61 (N.D. Ala. 2003)). “The

existence of minor conflicts alone will not defeat a party’s

claim to class certification.” Id. Rather, “the conflict must

be a fundamental one going to the specific issues in

controversy.” Id.

Defendants argue that both Plaintiffs Sihler and

Bavencoff are inadequate class representatives. (Doc. # 134

at 21-25). As for Bavencoff, Defendants argue she is

inadequate because the discrepancies between her deposition

testimony and declaration render her not credible, and due to

her alleged “lack of knowledge about the underlying case.”

(Id. at 22-23). Similarly, Defendants contend Sihler is

inadequate because of her “contradicting discovery responses

and deposition testimony” and “given her lack of knowledge

about this case.” (Id. at 24).

The Court disagrees. These issues with Bavencoff and

Sihler do not establish that they are inadequate class

representatives. Neither Sihler nor Bavencoff have any

conflicts of interest with the putative class. And, while

Defendants take issue with the extent of their knowledge of

the litigation, Bavencoff and Sihler are sufficiently

knowledgeable to adequately prosecute the action. See

Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 430 (4th

Cir. 2003) (“The lack of knowledge contention is particularly

meritless. It is hornbook law, as the district court

recognized, that ‘[i]n a complex lawsuit, such as one in which

the defendant’s liability can be established only after a

great deal of investigation and discovery by counsel against

a background of legal knowledge, the representative need not

have extensive knowledge of the facts of the case in order to

be an adequate representative.’” (citation omitted));

Dujanovic v. MortgageAmerica, Inc., 185 F.R.D. 660, 668 (N.D.

Ala. 1999) (noting that “lack of specific knowledge about the

claims generally is not grounds for denying certification

where the representative’s counsel is capable of handling the

litigation”).

As Plaintiffs highlight, both Bavencoff and Sihler have

participated in discovery and have met with counsel. (Doc. #

147 at 9-10). They understand their roles as representatives

of a class of injured individuals. See (Doc. # 140-2 at Ex.

20 at 122:25-123:6) (Bavencoff explaining her duty as class

representative “[t]o represent the best interest of everyone

in the class action, and to be involved and informed of the

class action”); (Doc. # 140-2 at Ex. 10 at 28:11-19) (Sihler

explaining that she is a plaintiff in this case on behalf of

other people like her, that is, “people that were deceived,

[and] people who were robbed of monies”). This is sufficient.

Regarding proposed class counsel, “[t]he Court finds

Plaintiffs’ counsel are experienced, able to fairly and

adequately protect the interests of the class, and capable of

prosecuting this consumer class action.” Sihler, 2023 WL

4335735, at *8 (finding the same Plaintiffs’ counsel adequate

class representation). Plaintiffs’ counsel are experienced in

class action litigation and have advocated zealously in this

case on behalf of the putative class.

The adequacy requirement is met here.

C. Rule 23(b)

In addition to the requirements of Rule 23(a), the class

must satisfy at least one of the three requirements of Rule

23(b). Plaintiffs rely on Rule 23(b)(3), which requires a

finding that (1) common questions of law or fact predominate

over questions affecting class members individually, and (2)

a class action is the superior method for resolving these

common questions. Vega, 564 F.3d at 1265. Defendants

challenge both requirements. (Doc. # 134 at 8-20).

1. Predominance

“Rule 23(b)(3)’s predominance requirement is far more

demanding than Rule 23(a)’s commonality requirement.” Sellers

v. Rushmore Loan Mgmt. Servs., LLC, 941 F.3d 1031, 1039 (11th

Cir. 2019). “Rule 23(b)(3) requires us to consider whether

‘the issues in the class action that are subject to

generalized proof and thus applicable to the class as a whole,

. . . predominate over those issues that are subject only to

individualized proof.’” Id. at 1040 (quoting Kerr v. City of

West Palm Beach, 875 F.2d 1546, 1557-58 (11th Cir. 1989)).

“To determine whether common issues predominate, a

district court first must ‘identify the parties’ claims and

defenses and their elements’ and ‘then classify these issues

as common questions or individual questions by predicting how

the parties will prove them at trial.’” Id. (quoting Brown,

817 F.3d at 1234). “Common questions are ones where the same

evidence will suffice for each member, and individual

questions are ones where the evidence will vary from member

to member.” Brown, 817 F.3d at 1234 (internal quotation marks

omitted). The Court then must “determine whether the common

questions predominate over the individual ones.” Id. at 1234-

35.

The Eleventh Circuit has “explained that certification

is inappropriate when after adjudication of the classwide

issues, plaintiffs must still introduce a great deal of

individualized proof or argue a number of individualized

legal points to establish most or all of the elements of their

individualized claims.” Sellers, 941 F.3d at 1040 (citation

and internal quotation marks omitted). “But this exercise is

not ‘bean counting’ — the relative importance of the questions

matters too.” Benson v. Enter. Leasing Co. of Orlando, LLC,

No. 6:20-cv-891-RBD-LRH, 2021 WL 2138781, at *8 (M.D. Fla.

May 11, 2021) (citing Brown, 817 F.3d at 1235). Importantly,

Rule 23(b)(3) “does not require a plaintiff seeking class

certification to prove that each ‘elemen[t] of [her] claim

[is] susceptible to classwide proof.’” Amgen Inc. v. Conn.

Ret. Plans & Tr. Funds, 568 U.S. 455, 469 (2013) (citation

omitted). Also, “individual damages do not always defeat

predominance.” Brown, 817 F.3d at 1239.

The heart of the parties’ dispute over class

certification lies with the predominance inquiry. Defendants

urge that individual questions on standing and causation

predominate over the common questions in this case.

(i) Standing

The Court disagrees with Defendants as to standing.

True, “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.” Cordoba v. DIRECTV, LLC, 942

F.3d 1259, 1276 (11th Cir. 2019) (citation omitted).

But Defendants have not convinced the Court that any

class members lack standing. The fact that Chargebacks911 did

not provide services to the Keto Racket for the entirety of

the class period and had “pauses” in service does not

undermine the standing of putative class members who were

injured during a time during which Chargebacks911 was not

providing services to the Keto Racket. Because Defendants

were co-conspirators in a RICO conspiracy, they can be held

liable for all acts of the conspiracy, including acts that

occurred before they joined the conspiracy. See United States

v. Westbo, 746 F.2d 1022, 1025 (5th Cir. 1984) (“Once

membership in a scheme to defraud is established, a knowing

participant is liable for any wire communication which

subsequently takes place or which previously took place in

connection with the scheme.”); Scholes v. Moore, 150 F.R.D.

133, 135 (N.D. Ill. 1993) (stating, in ruling on a motion for

class certification in a RICO case, “we assume here that Moore

would be liable for all damages caused by any acts in

furtherance of the conspiracy, even those committed before he

joined”); United States v. Philip Morris USA, 316 F. Supp. 2d

19, 27 (D.D.C. 2004) (“Every circuit in the country that has

addressed the issue has concluded that the nature of both

civil and criminal RICO offenses requires imposition of joint

and several liability because all defendants participate in

the enterprise responsible for the RICO violations.”).

Also, the alleged pauses in Chargebacks911’s service to

the Keto Racket, based on the Keto Racket’s late payments to

Defendants, do not appear to constitute a withdrawal from the

conspiracy. See Morton’s Mkt., Inc. v. Gustafson’s Dairy,

Inc., 198 F.3d 823, 838 (11th Cir. 1999) (“The defense of

withdrawal is not available to one who merely ceases to

participate and does not affirmatively withdraw.”), amended

in part, 211 F.3d 1224 (11th Cir. 2000). Thus, the existence

of times during the conspiracy in which Defendants were not

actively providing services to the Keto Racket does not

suggest that class members who purchased the diet pills during

these times lack standing in this action.

Likewise, the inclusion in the putative class of members

who potentially received some sort of refund does not create

a standing issue that predominates over other issues. Again,

Plaintiffs have explicitly excluded individuals “who received

a full refund for the ‘free’ products” from the putative

class. (Doc. # 121 at 2 n.1). Given this, Defendants’ concern

over individuals who received full refunds is best understood

as an administrative feasibility argument, rather than a

standing argument.

Furthermore, it is unlikely that large numbers of

individuals who received full refunds will need to be sorted

out from the actual class members. As Plaintiffs point out,

“the number of consumers who got full refunds for the ‘free

bottles’ directly from the Keto Associates is likely

negligible since the Keto Associates made it difficult for

customers to get refunds and charged a $5.00 per-bottle

restocking fee.” (Doc. # 147 at 4). Even for the 6,800

individuals who are recorded as receiving some form of refund,

affidavits can be provided to establish which individuals

received full refunds and which received a partial refund

that does not exclude them from the class. (Id. at 3-4).

(ii) Causation

Defendants’ argument regarding causation fares no

better. Defendants maintain that “the question of whether

[Chargebacks911’s] conduct enabled Brightree’s MIDs to

continue to allegedly ‘victimize[]’ consumers varies from

consumer to consumer based on the timing of their purchases

and the specific MID that their purchase was processed

through.” (Doc. # 134 at 12-13).

The Court agrees with Plaintiffs that “Defendants’

concern with divvying up fault MID by MID and bank by bank is

academic.” (Doc. # 147 at 4). Rather, “[w]hat matters for

causation is not this MID or that MID, but [Chargebacks911’s]

conspiracy and engagement in racketeering activity that

injured Plaintiffs.” (Id.). Importantly, “[e]very circuit in

the country that has addressed the issue has concluded that

the nature of both civil and criminal RICO offenses requires

imposition of joint and several liability because all

defendants participate in the enterprise responsible for the

RICO violations.” Philip Morris USA, 316 F. Supp. 2d at 27;

see also Gov’t Emps. Ins. Co. v. KJ Chiropractic Ctr. LLC,

No. 6:12-cv-1138-PGB-DCI, 2017 WL 9939048, at *3 (M.D. Fla.

Aug. 22, 2017) (“While the Eleventh Circuit has not

specifically addressed the issue of joint and several

liability in civil RICO cases, it has allowed joint and

several liability in a criminal RICO case. Moreover, several

other circuit courts of appeal have found defendants jointly

and severally liable in relation to civil RICO claims.”

(citations omitted)).

Thus, the fact that certain MIDs were not serviced by

Chargebacks911 at various times or at all, or that different

MIDs had different cut-off percentages for chargebacks does

not diminish Defendants’ liability. Defendants would still be

liable as to all the MIDs used by the Keto Racket such that

individual inquiries into which MID is associated with each

class member’s purchase are unnecessary. See In re JUUL Labs,

Inc., Mktg. Sales Pracs. & Prod. Liab. Litig., 609 F. Supp.

3d 942, 978 (N.D. Cal. 2022) (“The five schemes identified by

plaintiffs, interrelated and together, establish the overall

pattern of racketeering activity alleged. That Altria was

only directly involved in some of the racketeering activity

is not significant. Under Ninth Circuit precedent, all

defendants who participated in the RICO enterprise are liable

for the entire injury caused by the enterprise’s illegal

conduct, regardless of whether they personally participated

in every aspect of the conspiracy.”); Oki Semiconductor Co.

v. Wells Fargo Bank, Nat. Ass’n, 298 F.3d 768, 775 (9th Cir.

2002) (“Holding RICO conspirators jointly and severally

liable for the acts of their co-conspirators reflects the

notion that the damage wrought by the conspiracy ‘is not to

be judged by dismembering it and viewing its separate parts,

but only by looking at it as a whole.’” (citation omitted)).

The cause of each class member’s injury is the overall conduct

of the enterprise, in which Defendants took part.

Nor are Defendants correct regarding reliance. The issue

of reliance will not predominate over the common issues in

this RICO case. Reliance is not an element of the RICO claims.

See Williams, 465 F.3d at 1282-83 (explaining that “to

establish a federal civil RICO violation under § 1962(c), the

plaintiffs must satisfy four elements of proof: (1) conduct

(2) of an enterprise (3) through a pattern (4) of racketeering

activity,” as well as an “injury” to “business or property”

that was “by reason of” the RICO violation (citation and

internal quotation marks omitted)); Am. Dental Ass’n, 605

F.3d at 1293 (“A plaintiff can establish a RICO conspiracy

claim in one of two ways: (1) by showing that the defendant

agreed to the overall objective of the conspiracy; or (2) by

showing that the defendant agreed to commit two predicate

acts.” (citation omitted)). “The common-law requirements of

‘justifiable reliance’ and ‘damages’ . . . plainly have no

place in the [mail, wire, and bank] fraud statutes.” Neder v.

United States, 527 U.S. 1, 24–25 (1999). Thus, “no showing of

reliance is required to establish that a person has violated

§ 1962(c) [of RICO] by conducting the affairs of an enterprise

through a pattern of racketeering activity consisting of acts

of mail [or wire] fraud.” Bridge v. Phoenix Bond & Indem.

Co., 553 U.S. 639, 649 (2008). “RICO’s text provides no basis

for imposing a first-party reliance requirement.” Id. at 660.

The fact that some evidence of reliance may be provided

by Plaintiffs to prove causation for the class does not alter

this conclusion. As the Second Circuit has acknowledged,

“plaintiffs may be able to prove class-wide causation based

on first-party reliance without an individualized inquiry

into whether each class member relied on the defendant’s

misrepresentation if ‘circumstantial evidence’ generates a

sufficiently strong inference that all class members did, in

fact, rely.” Sergeants Benevolent Ass’n Health & Welfare Fund

v. Sanofi-Aventis U.S. LLP, 806 F.3d 71, 88 (2d Cir. 2015).

Here, “[i]t does not strain credulity to conclude that each

plaintiff . . . relied upon the [Keto Racket’s advertising]

representations and assumed they would be” charged the

advertised price for the two or three bottles chosen, and

then receive additional free bottles. Klay v. Humana, Inc.,

382 F.3d 1241, 1259 (11th Cir. 2004). In short, the issue of

reliance is not an individualized question that will

predominate over common questions here. See Sihler, 2023 WL

4335735, at *11 (“The Court finds individual proof of reliance

is not required in this case to establish proximate cause.

Proximate cause under RICO may be established without a

showing of reliance when the plaintiff’s injury is the direct

result — ‘a foreseeable and natural consequence’ — of the

defendant’s fraud. . . . Because Plaintiffs were the immediate

victims of Defendants’ fraudulent scheme to sell more Keto

Products at a higher price, the alleged RICO violation (mail

and wire fraud and conspiracy to commit mail and wire fraud)

has a direct relation to Plaintiffs’ alleged harm and

satisfies proximate cause.” (citations omitted)).

Rather, Plaintiffs are correct that the main issues in

this case are subject to generalized proof. Even setting aside

causation, the same generalized proof will be used to

establish the other elements of the RICO claims, including

conduct of an enterprise through a pattern of racketeering

activity being exactly the same for all class members. (Doc.

# 121 at 17); see also Williams, 568 F.3d at 1356 (“[C]laims

under RICO . . . are often susceptible to common proof.”). As

the Court in the related Sihler class action held, “Plaintiffs

will be able to show on a classwide basis whether Defendants

participated in the conduct at issue; whether Defendants’

participation in the conduct was part of an enterprise and

was performed through a pattern of racketeering activity;

whether it caused injury to Plaintiffs; or whether Defendants

knew about and agreed to facilitate the scheme.” Sihler, 2023

WL 4335735, at *11.

The predominance requirement is met.

2. Superiority

Additionally, a class action is a superior method of

resolving the common issues. “The focus of [the superiority]

analysis is on ‘the relative advantages of a class action

suit over whatever other forms of litigation might be

realistically available to the plaintiffs.’” Sacred Heart

Health Sys., Inc. v. Humana Military Healthcare Servs., Inc.,

601 F.3d 1159, 1183–84 (11th Cir. 2010).

Here, where each of the class members’ individual

damages are small, the class action mechanism is superior to

a “multiplicity of small individual suits for damages.” See

Deposit Guar. Nat. Bank, Jackson, Miss. v. Roper, 445 U.S.

326, 339 (1980) (“Where it is not economically feasible to

obtain relief within the traditional framework of a

multiplicity of small individual suits for damages, aggrieved

persons may be without any effective redress unless they may

employ the class-action device.”). As the court in the related

Sihler case explained, “[e]ach class member’s injury is a

small sum — no more than $200 — and the costs of litigation

would far exceed an individual’s recovery, so they would be

unlikely to pursue individual lawsuits. In this situation, a

class action may be the only way to resolve the dispute fairly

and efficiently.” Sihler, 2023 WL 4335735, at *12 (citations

omitted). “Furthermore, Plaintiffs allege a single common

fraudulent scheme, so it is more efficient and cost effective

to pursue this matter as a class action rather than as many

individual lawsuits with duplicate discovery.” Id.

The Court has already rejected Defendants’ predominance

arguments and, thus, those arguments do not undermine the

superiority requirement. See Sacred Heart Health Sys., Inc.,

601 F.3d at 1184 (“[T]he predominance analysis has a

‘tremendous impact on the superiority analysis . . . for the

simple reason that, the more common issues predominate over

individual issues, the more desirable a class action lawsuit

will be as a vehicle for adjudicating the plaintiffs' claims,’

both relative to other forms of litigation such as joinder or

consolidation, and in absolute terms of manageability.”

(citations omitted)).

IV. Conclusion

Plaintiffs have satisfied all of Rule 23’s requirements.

The Court will certify the nationwide class as defined in the

Motion.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Plaintiffs Janet Sihler and Charlene Bavencoff’s Sealed

Motion for Class Certification (Doc. # 121) is GRANTED.

(2) Plaintiffs Janet Sihler and Charlene Bavencoff are

appointed as lead plaintiffs and class representatives.

(3) Jordan Wagner of Kibbey Wagner and Kevin Kneupper, A.

Cyclone Covey, A. Lorraine Weekes, and Anthony Sampson

of Kneupper & Covey, PC, are appointed as class counsel.

(4) Within 14 days from the date of this Order, the parties

shall file a joint notice that (1) describes the

identification of class members and their contact

information; (2) describes the method of disseminating

class notice; and (3) proposes a notice to be

disseminated to the class.

(5) Prior to filing the joint notice, the parties are

directed to meet and confer and agree to the extent

possible on these issues. To the extent the parties

cannot agree, their disagreement should be described,

along with short legal briefing, in the joint notice.

DONE and ORDERED in Chambers in Tampa, Florida, this

13th day of August, 2024.

fan Hunaby (mei¥h

VIR! IA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

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