# Sihler v. Global e-Trading, LLC

> District Court, M.D. Florida · August 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10642663

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642663. Public record. Not legal advice.