Sanford v. MemberWorks, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA SANFORD, on behalf of 

herself and all others similarly

situated,

Plaintiff-Appellant,

PRESTON SMITH; RITA SMITH, on

behalf of themselves and all others

similarly situated,

Plaintiff-intervenors-Appellants, No. 09-55502

v. D.C. No.

MEMBERWORKS, INC., a Delaware  3:02-cv-00601-

MMA-AJB

corporation, AKA MWI Essentials,

AKA MWI Home and Garden, OPINION

AKA MWI Connections, AKA

MWI Valuemax; WEST

CORPORATION, a Delaware

corporation; WEST TELEMARKETING

CORPORATION, a Delaware

corporation,

Defendants-Appellees.



Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Argued and Submitted

May 6, 2010—Pasadena, California

Filed October 25, 2010

17489

17490 SANFORD v. MEMBERWORKS, INC.

Before: Diarmuid F. O’Scannlain and Richard C. Tallman,

Circuit Judges, and Frederic Block, Senior District Judge.*

Opinion by Judge O’Scannlain

*The Honorable Frederic Block, Senior United States District Judge for

the Eastern District of New York, sitting by designation.

17492 SANFORD v. MEMBERWORKS, INC.

COUNSEL

Eric A. Isaacson, Robbins, Geller, Rudman & Dowd LLP,

San Diego, California, argued the cause for the plaintiffs-

appellants and filed briefs. Patrick J. Coughlin, Frank J. Jana-

SANFORD v. MEMBERWORKS, INC. 17493

cek, Christopher Collins, and Amanda M. Frame, Robbins,

Geller, Rudman & Dowd LLP, San Diego, California; Jack

Landskroner, Landskroner Grieco Madden, LLC, Cleveland,

Ohio; and Artie Baran, Law Offices of Artie Baran APC, San

Diego, California, were also on the briefs.

Darrel J. Hieber, Skadden, Arps, Slate, Meagher & Flom

LLP, Los Angeles, California, argued the cause for the

defendants-appellees and filed a brief. Robert J. Herrington

and Jennifer E. LaGrange, Skadden, Arps, Slate, Meagher &

Flom LLP, Los Angeles, California, were also on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether consumers can pursue claims

against a company that allegedly deceived them into buying

memberships in a discount club.

I

A

In response to a television advertisement, Patricia Sanford

purchased Tae-Bo fitness tapes over the phone in February

1999. West Corporation (“West”) operated the call center that

received Sanford’s call. Pursuant to West’s joint marketing

agreements with MemberWorks, Inc. (“MWI”),1 a West oper-

ator read Sanford the following sales script in an effort to “up-

sell” a membership in the “MemberWorks Essentials”

program:

Mr(s). _____, for purchasing Tae-Bo today, we’re

1

MWI has since changed its name to Vertrue, Inc.

17494 SANFORD v. MEMBERWORKS, INC.

sending you a risk-FREE 30-day membership to

ESSENTIALS, a service designed to SAVE YOU

20% from leading stores such as EXPRESS and

FLORSHEIM, plus reward savings at VICTORIA’S

SECRET, TJ MAXX, PIER ONE and TARGET,

PLUS additional savings on eyewear, beauty prod-

ucts, haircuts, and more! After 30 days, the service

is extended to a full year for just $6 a month, billed

annually in advance to the credit card you’re using

today. If you want to cancel, just call the toll-free

number that appears in your kit in the first 30 days

and YOU WON’T BE BILLED. So look for that kit

in the mail, OKAY?

Sanford had no recollection of hearing the script, agreeing to

the free trial membership, or receiving the membership kit in

the mail. Because she did not cancel her trial membership, her

credit card was charged a $72 annual membership fee in

March 1999. In January 2000, her credit card was charged an

$84 renewal fee.

Preston and Rita Smith had a similar experience after pur-

chasing various so-called “bait products” over the phone,

including Tae-Bo videos, Nad’s hair removal products, and

Tai Vital Basics. The Smiths alleged that they were also read

the sales script and, without their knowledge or consent,

billed repeatedly for their membership in MemberWorks

Essentials. They did not, however, allege whether it was Pres-

ton or Rita who placed each particular phone call.

B

On March 28, 2002, Sanford filed a putative class action

against MWI2 asserting a claim for violation of the federal

2

Sanford also named West as a defendant, but the district court dis-

missed all of her claims against West, and we affirmed the dismissal in a

prior appeal. See Sanford v. MemberWorks, Inc., 483 F.3d 956, 965 (9th

Cir. 2007). The claims against West are not at issue in this appeal.

SANFORD v. MEMBERWORKS, INC. 17495

Unordered Merchandise Statute, 39 U.S.C. § 3009, as well as

state-law claims for conversion, unjust enrichment, and fraud.

The district court granted MWI’s motion to compel arbitration

of Sanford’s individual claims and dismissed the class claims

as moot. After the arbitrator found for MWI on all claims

except for Sanford’s claim for restitution under the Unordered

Merchandise Statute, the district court granted MWI’s motion

to confirm the arbitration award and denied the Smiths’

motion to intervene as alternative named plaintiffs. We

vacated the district court’s orders and remanded in Sanford v.

MemberWorks, Inc., 483 F.3d 956 (9th Cir. 2007).

On remand, MWI abandoned its efforts to go to arbitration.

Sanford filed a First Amended Complaint, which added the

Smiths as named plaintiffs and added a claim for violation of

the Electronic Fund Transfer Act (“EFTA”), 15 U.S.C. § 1693

et seq. MWI filed a motion to dismiss, but before the district

court ruled on the motion, Sanford and the Smiths (collec-

tively, “Plaintiffs”) moved for leave to file a Second

Amended Complaint on the ground that certain “ministerial”

revisions were required to effectuate a settlement in a state-

court action Sanford had filed against West. Although the dis-

trict court granted leave to amend the complaint to avoid any

impediment to the settlement, it dismissed the federal claims

with prejudice and the state-law claims without prejudice but

without leave to amend.

Plaintiffs then filed an ex parte application for leave to file

a motion for reconsideration. For the first time, they asserted

that “the facts alleged demonstrate that the fraudulent telemar-

keting practices at issue support a claim of RICO [Racketeer

Influenced and Corrupt Organizations Act] violations.”

Although the district court expressed doubt as to whether the

facts supported a RICO claim, it granted the motion in part,

allowing Plaintiffs to file a motion for leave to amend their

complaint that “should demonstrate on its face why amend-

ment would not be futile.”

17496 SANFORD v. MEMBERWORKS, INC.

Plaintiffs filed a proposed Third Amended Complaint,

which not only included new RICO claims, but also added

two new plaintiffs and realleged claims that had been dis-

missed with prejudice. MWI moved ex parte to dismiss or, in

the alternative, to strike the realleged claims and new plain-

tiffs. The district court granted the motion to strike and held

that it would assess only the new RICO claims in the pro-

posed Third Amended Complaint. As to those claims, the dis-

trict court denied leave to amend, holding that amendment

would be futile and that Sanford no longer had standing

because she had settled all of her claims in the state-court

action. The district court entered judgment in favor of MWI,

and this appeal timely followed.

II

We consider first whether the district court properly dis-

missed Sanford from the action for lack of standing.3

[1] “Mootness [is] the doctrine of standing set in a time

frame: The requisite personal interest that must exist at the

commencement of the litigation (standing) must continue

throughout its existence (mootness).” U.S. Parole Comm’n v.

Geraghty, 445 U.S. 388, 397 (1980) (internal quotation marks

omitted). “Generally, when a party settles all of his personal

claims before appeal, an appeals court must dismiss the

appeal as moot unless that party retains a personal stake in the

case that satisfies the requirements of Article III.” Smith v. T-

Mobile USA, Inc., 570 F.3d 1119, 1122 (9th Cir. 2009). “In

3

Sanford contends that we need not consider whether she continues to

have standing because the Smiths have standing, and “[i]n a class action,

standing is satisfied if at least one named plaintiff meets the requirements”

of Article III. Lowden v. T-Mobile USA, Inc., 512 F.3d 1213, 1215 n.1 (9th

Cir. 2008). Because the district court did not rule on class certification,

however, this action consists of Sanford’s individual claims and the

Smiths’ individual claims, which arise out of different facts. To bring her

individual claims, Sanford must satisfy the jurisdictional requirements of

Article III independently of the Smiths.

SANFORD v. MEMBERWORKS, INC. 17497

order to retain . . . a ‘personal stake,’ a class representative

cannot release any and all interests he or she may have had

in class representation through a private settlement agree-

ment.” Narouz v. Charter Commc’ns, LLC, 591 F.3d 1261,

1264 (9th Cir. 2010).

In the state-court action against West, Sanford entered into

a settlement agreement in which she agreed to relinquish “any

claims arising out of or that could have arisen out of the alle-

gations set forth” in her state-court case.4 Because her claims

against MWI in this action arise out of the same allegations

in her state-court case against West, see West Corp. v. Sup.

Ct., 11 Cal. Rptr. 3d 145, 149-50 (Ct. App. 2004) (describing

the allegations), she has indeed relinquished them.

[2] Sanford nevertheless contends that she retains a per-

sonal stake in this action in the form of shifting litigation

costs and fees to putative class members. We disagree.

Included within the scope of the claims expressly released by

the settlement agreement are “all claims, . . . whether class,

individual, or otherwise, including any claim for costs,

expenses, pre or post judgment interest, penalties, fees

(including attorneys’ fees, expert fees and consulting fees) . . .

for any kind of relief whatsoever (including injunctive relief,

monetary relief, damages, punitive damages, restitution, reim-

bursement, disgorgement, and economic injury).” Based on

this broad language, we conclude that Sanford has bargained

away not only her individual claims against MWI, but also

any claim for fees or costs in this action. Sanford “ha[s]

retained no interest in shifting the costs of litigation, and thus,

4

The only claims expressly excluded from the release are claims

“against any non-West entity (specifically including MWI) relating to

enrollment in one or more upsells that are outside of” the joint marketing

agreements at issue in Sanford’s state-court action. Notably, the settlement

agreement does not purport to release claims against MWI arising out of

the same joint marketing agreements, and indeed required Sanford to seek

dismissal in this action of “any allegations and claims against any party,

including MWI, relating to or seeking recovery for” such claims.

17498 SANFORD v. MEMBERWORKS, INC.

[her] case is plainly moot.” Pettrey v. Enter. Title Agency,

Inc., 584 F.3d 701, 705 (6th Cir. 2009). Because Sanford no

longer has any cognizable interest in the suit, she must be dis-

missed from the appeal. See Molski v. Evergreen Dynasty

Corp., 500 F.3d 1047, 1056 (9th Cir. 2007) (per curiam).

There is no contention that the claims of the other named

plaintiffs, the Smiths, have been satisfied. Therefore, we con-

clude that the Smiths may continue in this suit, and we pro-

ceed to the merits of the Smiths’ claims only.

III

We next consider whether the district court erred in deny-

ing the Smiths’ motion for leave to amend the complaint to

add claims alleging violations of RICO, 18 U.S.C. § 1962(c)

and (d). Where, as here, the district court denies leave to

amend on futility grounds, we will uphold such denial if “it

is clear, upon de novo review, that the complaint would not

be saved by any amendment.” Leadsinger, Inc. v. BMG Music

Publ’g, 512 F.3d 522, 532 (9th Cir. 2008).

A

[3] Under RICO, it is “unlawful for any person employed

by or associated with any enterprise engaged in, or the activi-

ties of which affect, interstate or foreign commerce, to con-

duct or participate, directly or indirectly, in the conduct of

such enterprise’s affairs through a pattern of racketeering

activity or collection of unlawful debt.” 18 U.S.C. § 1962(c).

“To state a claim under § 1962(c), a plaintiff must allege (1)

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

teering activity. “ Odom v. Microsoft Corp., 486 F.3d 541,

547 (9th Cir. 2007) (en banc). A “ ‘pattern’ . . . requires at

least two acts of racketeering activity.” 18 U.S.C. § 1961(5).

“ ‘[R]acketeering activity’ is any act indictable under several

provisions of Title 18 of the United States Code, and includes

SANFORD v. MEMBERWORKS, INC. 17499

the predicate acts of mail fraud, wire fraud and obstruction of

justice.” Turner v. Cook, 362 F.3d 1219, 1229 (9th Cir. 2004).

[4] In the proposed Third Amended Complaint, the Smiths

alleged the predicate acts of wire and mail fraud, including

the reading of deceptive sales scripts over the telephone and

the mailing of deceptive membership kits. Wire or mail fraud

consists of the following elements: (1) formation of a scheme

or artifice to defraud; (2) use of the United States mails or

wires, or causing such a use, in furtherance of the scheme;

and (3) specific intent to deceive or defraud. Schreiber Dis-

trib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1400 (9th

Cir. 1986). Federal Rule of Civil Procedure 9(b) provides that

“[i]n alleging fraud . . . , a party must state with particularity

the circumstances constituting fraud,” while “[m]alice, intent,

knowledge, and other conditions of a person’s mind may be

averred generally.” Consequently, “[t]he only aspects of wire

[or mail] fraud that require particularized allegations are the

factual circumstances of the fraud itself.” Odom, 486 F.3d at

554.

“Rule 9(b) demands that the circumstances constituting the

alleged fraud be specific enough to give defendants notice of

the particular misconduct . . . so that they can defend against

the charge and not just deny that they have done anything

wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th

Cir. 2009) (internal quotation marks omitted). “Any aver-

ments which do not meet that standard should be ‘disre-

garded,’ or ‘stripped’ from the claim for failure to satisfy Rule

9(b).” Id. Accordingly, “[t]o avoid dismissal for inadequacy

under Rule 9(b), [the] complaint would need to state the time,

place, and specific content of the false representations as well

as the identities of the parties to the misrepresentation.”

Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir.

2004) (internal quotation marks omitted).

[5] The Smiths failed to allege which of them made any of

the telephone calls to purchase the various bait products and,

17500 SANFORD v. MEMBERWORKS, INC.

thus, who was a party to the alleged misrepresentations. At

oral argument, their counsel conceded that the Smiths had no

recollection of who made the calls. While we have occasion-

ally relaxed the particularity requirement where “plaintiffs

cannot be expected to have personal knowledge of the rele-

vant facts,” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir.

1993), here, it is not unreasonable to expect the Smith who

placed the phone calls to have personal knowledge of the rele-

vant facts. We therefore conclude that the Smiths cannot sat-

isfy Rule 9(b)’s particularity requirement with respect to their

claims of wire fraud. See Moore v. Kayport Package Express,

Inc., 885 F.2d 531, 540 (9th Cir. 1989) (holding that a com-

plaint did not satisfy Rule 9(b) because it “d[id] not specify

which plaintiff received which prospectus, or which plaintif-

f(s) made purchases through the stockbroker defendants”

(emphases added)).5

[6] As to mail fraud, the proposed Third Amended Com-

plaint generally alleges that MWI mailed membership kits to

consumers after they called to purchase the bait products, and

that such kits were designed to look like junk mail so that

consumers would unwittingly throw them away without can-

celing their memberships. However, because the Smiths failed

to allege any specific mailings, they once again failed to sat-

isfy Rule 9(b)’s particularity requirement. See Lancaster

Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397,

405 (9th Cir. 1991).

[7] The Smiths cannot make any additional factual allega-

tions to supplement their deficient RICO claims without con-

ducting discovery. Although in some cases, discovery may be

appropriate where evidence of fraud is exclusively in the

defendant’s possession, see United States ex rel. Lee v. Smith-

5

Because we conclude that the failure to plead who placed the telephone

calls was insufficient under Rule 9(b), we need not decide whether the

failure to allege the identity of the telemarketing entity that took the calls

or the bait products purchased in each transaction was also insufficient.

SANFORD v. MEMBERWORKS, INC. 17501

Kline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001),

here, the deficiencies stem from the Smiths’ inability to

remember phone calls they made or mailings they received.

Because no amendment would allow the Smiths to plead the

factual circumstances of the alleged fraud with the requisite

level of particularity, we conclude that the district court did

not err in denying as futile the Smiths’ motion for leave to

amend the complaint to add a RICO claim under section

1962(c).

B

Section 1962(d) of RICO provides that “[i]t shall be unlaw-

ful for any person to conspire to violate any of the provisions

of subsection (a), (b), or (c) of this section.” 18 U.S.C.

§ 1962(d). “Plaintiffs cannot claim that a conspiracy to violate

RICO existed if they do not adequately plead a substantive

violation of RICO.” Howard v. Am. Online Inc., 208 F.3d

741, 751 (9th Cir. 2000). Because we conclude that the sec-

tion 1962(c) claim cannot be saved by amendment, it follows

that the section 1962(d) claim also cannot be saved. Denial of

leave to amend the complaint to add this claim was therefore

proper.

IV

[8] We next consider whether the district court erred in

dismissing the claims under the Unordered Merchandise Stat-

ute on the ground that the membership kits were not “merchan-

dise.”6 The statute prohibits “the mailing of unordered

6

MWI argues that we should affirm the district court on the alternative

ground that there is no private right of action under the Unordered Mer-

chandise Statute. Although we recognized such a private right of action in

Kipperman v. Academy Life Insurance Co., 554 F.2d 377 (9th Cir. 1977),

MWI contends that an intervening Supreme Court decision, Alexander v.

Sandoval, 532 U.S. 275 (2001), has undermined the rationale of Kipper-

man. See Wisniewski v. Rodale, 510 F.3d 294, 308 (3d Cir. 2007) (deem-

17502 SANFORD v. MEMBERWORKS, INC.

merchandise,” which is defined as “merchandise mailed with-

out the prior expressed request or consent of the recipient.” 39

U.S.C. § 3009(a), (d). But it does not define “merchandise.”

When interpreting a statute, we must give its terms “their

ordinary and plain meaning,” and may follow the common

practice of consulting dictionaries to determine how the terms

were defined at the time the statute was adopted. Johnson v.

Aljian, 490 F.3d 778, 780 (9th Cir. 2007). The Unordered

Merchandise Statute was enacted as part of the Postal Reorga-

nization Act of 1970, Pub. L. No. 91-375, 84 Stat. 749 (1970).

Accordingly, it is appropriate to turn to the Black’s Law Dic-

tionary edition that was current in 1970. There, “merchan-

dise” is defined as “[a]ll commodities which merchants usu-

ally buy and sell, whether at wholesale or retail; wares and

commodities such as are ordinarily the objects of trade and

commerce.” Black’s Law Dictionary 1138 (4th ed. 1951).

“Commodities” are “[m]ovable articles of value; things that

are bought and sold.” Id. at 342. “Merchandise,” therefore,

refers to movable articles of value that are bought and sold by

merchants.

[9] But MWI did not sell membership kits; it sold member-

ships. The membership kits were merely incidental to the sale

of the memberships, providing prospective members with

instructions on how to use their free trial memberships (i.e.,

by “contact[ing] defendant MWI either by telephone or via

ing Kipperman “inconsistent” with Sandoval). Therefore, MWI invites us

to overrule Kipperman. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003) (en banc) (holding that a three-judge panel may overrule another

three-judge panel “where intervening Supreme Court authority is clearly

irreconcilable with our prior circuit authority”).

We decline the invitation. “The question whether a [private] cause of

action exists is not a question of jurisdiction, and therefore may be

assumed without being decided.” Burks v. Lasker, 441 U.S. 471, 476 n.5

(1979). Because we dispose of the Unordered Merchandise Statute claim

on other grounds, we leave the question of Kipperman’s continuing vital-

ity for another day.

SANFORD v. MEMBERWORKS, INC. 17503

the Internet, and obtain[ing] certificates through MWI”). The

membership kits were therefore informational materials, not

valuable objects of trade. The Smiths conceded as much when

they alleged in the proposed Third Amended Complaint that

the membership kits “are mailed out bulk rate indicating the

lack of value of the material.” (emphasis added).

[10] Nor are the memberships themselves merchandise.

While they provided members with an opportunity to buy

merchandise at a discount, such intangible opportunities are

not in themselves merchandise. See Weinberg v. City of Chi-

cago, 310 F.3d 1029, 1035 (7th Cir. 2002) (“Merchandise is

generally considered as any tangible item held out for sale.”

(emphasis added)); cf. Walton v. United Consumers Club,

Inc., 786 F.2d 303, 304 (7th Cir. 1986) (“The United Con-

sumers Club sells both memberships and merchandise. Those

who purchase memberships then may buy the merchandise.”).

[11] Because nothing MWI allegedly mailed to the Smiths

fits within the definition of “merchandise,” we conclude that

the district court properly dismissed their claims under the

Unordered Merchandise Statute.

V

The Smiths next argue that the district court erred in dis-

missing the EFTA claims.

[12] The EFTA creates a “framework [of] rights, liabili-

ties, and responsibilities of participants in electronic fund

transfer systems.” 15 U.S.C. § 1693(b). The Act applies to

electronic fund transfers from a “consumer account,” which is

defined as a “demand deposit, savings deposit, or other asset

account.” Id. § 1693a(2). Consequently, it does not apply to

credit-based transactions. Cf. Bass v. Stolper, Koritzinsky,

Brewster & Neider, S.C., 111 F.3d 1322, 1328 (7th Cir. 1997)

(noting that the EFTA governs “electronic cash transactions”

and is “void of any credit reference or requirement”). The

17504 SANFORD v. MEMBERWORKS, INC.

Smiths concede that only their credit cards were charged by

MWI, and that the EFTA is therefore inapplicable to their

transactions with MWI. They nevertheless contend that they

should be allowed to represent putative class members whose

debit cards were charged.

[13] When a named plaintiff has no cognizable claim for

relief, “she cannot represent others who may have such a

claim, and her bid to serve as a class representative must fail.”

Lierboe v. State Farm Mut. Auto Ins. Co., 350 F.3d 1018,

1022 (9th Cir. 2003); see also Boyle v. Madigan, 492 F.2d

1180, 1182 (9th Cir. 1974) (“Until [the named plaintiffs] can

show themselves aggrieved in the sense that they are entitled

to the relief sought, there is no occasion for the court to wres-

tle with the problems presented in considering whether the

action may be maintained on behalf of the class.”). Here,

because the Smiths lack a cognizable EFTA claim, dismissal

of their individual claims was proper, and they cannot repre-

sent an EFTA class.

The Smiths contend that even if they cannot represent an

EFTA class, the district court should have permitted a debit

purchaser to intervene to represent the class.7 However,

where, as here, the original named plaintiffs fail to state a

cognizable claim from the outset, intervention is not required.

See Lierboe, 350 F.3d at 1023; see also Lidie v. California,

478 F.2d 552, 555 (9th Cir. 1973) (“[W]here the original

plaintiffs were never qualified to represent the class, a motion

to intervene represents a back-door attempt to begin the action

anew, and need not be granted.”).

VI

[14] Finally, the Smiths argue that the district court erred

7

Although no motion to intervene was ever filed, the district court noted

that it “would not grant a motion to intervene at this point even if the pro-

ceedings were stayed to allow such a motion to be filed.”

SANFORD v. MEMBERWORKS, INC. 17505

in declining to exercise supplemental jurisdiction over their

state-law claims. A district court “may decline to exercise

supplemental jurisdiction” if it “has dismissed all claims over

which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

“[I]n the usual case in which all federal-law claims are elimi-

nated before trial, the balance of factors to be considered

under the pendent jurisdiction doctrine—judicial economy,

convenience, fairness, and comity—will point toward declin-

ing to exercise jurisdiction over the remaining state-law

claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

n.7 (1988), superseded on other grounds by statute as recog-

nized in Fent v. Okla. Water Res. Bd., 235 F.3d 553, 557

(10th Cir. 2000). Because we conclude that the district court

properly dismissed all of the federal-law claims and the bal-

ance of factors does not tip in favor of retaining the state-law

claims,8 we cannot say that the district court abused its discre-

tion in dismissing the state-law claims without prejudice.

VII

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

8

Indeed, these state-law claims have already been re-filed by the Smiths

and numerous putative class members in various states, making any exer-

cise of supplemental jurisdiction at this point a waste of judicial resources.

See In re Vertrue Inc. Mktg. & Sales Practices Litig., No. 09-75000, 2010

WL 1539976, at *1 (N.D. Ohio Apr. 16, 2010) (listing actions consoli-

dated by the Judicial Panel on Multidistrict Litigation), appeal docketed,

No. 10-3928 (6th Cir. Aug. 5, 2010).