The opinion
Case: 14-20128 Document: 00513234567 Page: 1 Date Filed: 10/16/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20128 United States Court of Appeals
Fifth Circuit
FILED
JUAN RAMON TORRES; EUGENE ROBISON, October 16, 2015
Lyle W. Cayce
Plaintiffs - Appellees Clerk
v.
S.G.E. MANAGEMENT, L.L.C.; STREAM GAS & ELECTRIC, L.T.D.;
STREAM S.P.E. G.P., L.L.C; STREAM S.P.E., L.T.D.; IGNITE HOLDINGS,
L.T.D; ET AL,
Defendants - Appellants
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Stream Energy, its marketing arm Ignite, and a number of other
defendants (collectively, the “Defendants”) appeal the district court’s order
certifying a class of some 150,000 plaintiffs (the “Plaintiffs”) in this civil action
brought under the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1961–68. The Plaintiff investors are Independent
Associates in Ignite’s multi-level marketing program, who are claiming to be
victims of an illegal pyramid scheme. Specifically, the Plaintiffs claim that the
Defendants induced the Plaintiffs to participate in the scheme by
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misrepresenting that Ignite is a legitimate business opportunity, causing them
to suffer monetary losses.
The Defendants argue both that Ignite is not an illegal pyramid scheme
and, more significantly relevant here, that class certification is inappropriate
because individualized questions of reliance and knowledge predominate over
any common issues, defeating class certification under Rule 23(b)(3) of the
Federal Rules of Civil Procedure. The district court rejected the Defendants’
argument and certified the case as a class action. This Court granted the
Defendants leave to file this interlocutory appeal under Federal Rule of Civil
Procedure 23(f). After full briefing and argument, we VACATE the district
court’s class certification order and REMAND the case for the entry of a proper
order not inconsistent with this opinion and for such further proceedings as
may be appropriate.
I.
Stream Energy began in 2004 as a venture to provide energy services in
deregulated energy markets. Stream does not own energy infrastructure.
Instead, it resells gas and electricity that it buys from other utilities. According
to Stream, it can provide consumers with cheaper services through this
arrangement. Stream began its operations in Texas after it received approval
from the Texas Public Utility Commission in 2005. Beginning in 2008, Stream
sought to expand beyond Texas, and it has expanded operations to other states,
including Georgia, Maryland, New Jersey, New York, and Pennsylvania.
According to Stream, it has over one million energy customers, and it has sold
billions of dollars in electricity and natural gas. It claims that the vast majority
of its revenues come from energy sales, not from the profits it receives from its
multi-level marketing system.
This appeal, however, primarily involves Ignite and its multi-level
marketing venture designed to promote Stream’s energy services to
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consumers. 1 To participate in Ignite’s marketing program, a willing individual
pays a fee, typically $329, and may also pay an additional, but optional,
monthly fee for an Ignite-based website, or “homesite,” to promote his or her
Ignite marketing efforts. In return, the individual becomes an “Independent
Associate,” or “IA,” within the Ignite program and receives marketing
materials along with opportunities to attend training sessions hosted by Ignite
executives and other successful IAs. The IAs may then recruit potential energy
customers for Stream as well as additional IAs to join the Ignite program.
Ignite compensates IAs in three primary ways. First, as the Defendants
emphasize, IAs receive a monthly commission based on the number of
customers they have recruited to purchase energy from Stream. Ignite calls
this income Residual Income or Monthly Energy Income (“MEI”). Second, IAs
receive compensation for recruiting other IAs into Ignite, which Ignite calls
Leadership Income. Finally, Ignite also compensates IAs for completing an
initial recruitment of energy customers and IAs in a prompt manner. Ignite
has developed a “3&10” model, through which a new IA recruits three new IAs
and ten new customers. By meeting various targets, an IA is entitled to receive
various payments of what Ignite calls Quick Start Income.
An IA’s success depends primarily on recruiting a “downline” of other IAs
who, in turn, recruit other IAs and customers into the Ignite program. As an
IA recruits more IAs into the Ignite program, the IA proceeds up an Ignite
ladder of leadership positions. All IAs start out as Directors, the lowest level
of the Ignite leadership. By recruiting more IAs, the IA can move up three
additional leadership levels, to Managing Director, then to Senior Director,
1Many of the individual Defendants in this appeal came to Ignite after working at
Excel Telecommunications, a failed long-distance company that offered long-distance services
in the deregulated telecommunications market through a similar multi-level marketing
program.
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and finally to Executive Director. By building a downline, the IA also receives
MEI for the customers whom the downline IAs recruit to join Stream, along
with bonuses for recruiting additional IAs. As Ignite touts in its marketing
materials, “the power of Ignite’s Leadership Income plan is that these bonuses
are paid not just to five levels, but on every level to unlimited depth. That’s
geometric growth to infinity!”
For its top recruiters, Ignite also developed a “Presidential Director”
level. Presidential Directors received luxury cars and other perks from Ignite.
Many of these individuals promoted the opportunities of the Ignite program at
events across the country.
Ignite has promoted its multi-level marketing program through many
forms of media. Ignite developed a magazine called Empower, which featured
profiles of the most successful IAs along with other stories encouraging
prospective IAs to join Ignite. Presidential Directors promoted Ignite through
presentations to IAs and prospective IAs. For example, Presley Swagerty,
known as the “Coach,” and Randy Hedge, known as the “Cowboy,” were
particularly prolific in promoting Ignite through videos, presentations, and
conference calls. Ignite also produced a series of videos and presentations
explaining the basic structure of the program, and IAs were encouraged to
show these presentations to prospective IAs to inform them about the program.
In addition to its own promotional activities, Ignite drew attention from
a number of outside media sources. The Plaintiffs allege that, as early as 2005,
the Dallas Morning News published a story on Ignite that included a quote
from a marketing professor suggesting that Ignite was a pyramid scheme. In
years following, the Dallas Morning News, the Atlanta Journal-Constitution,
and other media outlets began to feature stories indicating that Ignite may be
a pyramid scheme. Indeed, IAs reported to Ignite executives and the
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Presidential Directors that many prospective IAs asked them to address
rumors that Ignite was an illegal pyramid scheme.
Although the parties appear to dispute the numbers, the clear majority
of IAs have lost money as a result of participating in Ignite. In contrast, a
small number of individuals have made significant sums of money.
This suit was brought by former IAs Juan Ramon Torres and Eugene
Robison, who allege that Stream, Ignite, and various individual defendants
have violated RICO. They have sought to certify a class consisting of those IAs
who have lost money as a result of participating in Ignite’s program. The
district court granted the Plaintiffs’ motion and certified a class. 2 In its
certification order, the district court considered whether the Plaintiffs could
establish the proximate cause element of their RICO claim through common
evidence of reliance. The district court concluded that the Plaintiffs could not
establish classwide reliance on any particular misrepresentation; but it
certified the class because it ruled that the Plaintiffs were entitled to an
inference of reliance, which a jury could draw from the fraudulent and illegal
nature of a pyramid scheme. Thus, the district court held that, if the Plaintiffs
can prove that Ignite is a pyramid scheme, which the parties concede requires
only common proof, then the jury is entitled to infer that the Plaintiffs only
invested in the pyramid scheme in reliance on an implicit representation that
Ignite is a legitimate business. This interlocutory appeal followed.
Thus, to summarize, the Plaintiffs seek to certify a class action for
victims of an alleged pyramid scheme. The underlying cause of action is
2 The district court defined the class more broadly than the Plaintiffs’ proposed
definition, extending the class to “all IAs who joined Ignite on or after January 1, 2005,
through April 2, 2011, excluding the IAs subject to the Eleventh Circuit opinion in Betts [v.
SGE Management, LLC, 402 F. App’x 475 (11th Cir. 2010)].” Thus, the district court did not
explicitly limit the class to consist only of those IAs who lost money by participating in Ignite.
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brought under RICO. The Plaintiffs allege that they were defrauded because
the Defendants misrepresented to them that Ignite was a legitimate company
when it was not. Ordinarily, the Plaintiffs must show that the class relied on
this misrepresentation in making their investment. The Plaintiffs have not
offered evidence that such an actual representation was ever made or that they
relied on such a misrepresentation. They argue, however, that such a general
representation, and reliance thereon, can be inferred, essentially because such
a representation is inherent in all investment opportunities and it is only on
such a reliance that a rational investor would invest in Ignite.
To establish a class action, the Plaintiffs must show that the evidence of
reliance is common to the class and predominates over individualized issues of
reliance under Rule 23(b)(3). In this connection, the Plaintiffs must show (if
inferred reliance is indeed a viable theory) that there is no other reasonable
scenario that could explain the investors’ decisions to invest, other than the
inferred misrepresentation that Ignite offered a legitimate business
opportunity. Here, we hold that the Plaintiffs have not met this standard.
This appeal involves several complex and overlapping issues. First, we
will discuss the standard for class certification under Rule 23(b)(3), along with
the substantive elements of the Plaintiffs’ RICO claim, which bears on the class
certification issue. We will also explain the district court’s basis for class
certification, which the Plaintiffs adopt on this appeal. Then, we will describe
the typical aspects of a pyramid scheme, along with the specific
representations, which suggest that Ignite might be a pyramid scheme.
Finally, we will consider the relevant legal authorities and explain why the
Plaintiffs’ case falls short under these precedents. For these reasons, we will
conclude that the Plaintiffs’ class must be decertified.
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II.
A.
The Defendants’ appeal seeks an interlocutory review of the district
court’s ruling on class certification. Thus, we begin with a discussion of the
standards applicable to our review of class certification orders.
District courts exercise substantial discretion when deciding whether to
certify a class, and we will reverse only if the district court abused its discretion
or applied an erroneous legal standard. Mullen v. Treasure Chest Casino, LLC,
186 F.3d 620, 624 (5th Cir. 1999). At the same time, we are mindful that “[t]he
class action is ‘an exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2550 (2011) (quoting Califano v. Yamasaki, 442 U.S.
682, 700–01 (1979)). Consequently, a plaintiff seeking to certify a class “must
affirmatively demonstrate his compliance” with Rule 23 of the Federal Rules
of Civil Procedure. Id. at 2551. The Plaintiffs have the initial burden of
demonstrating that the litigation should proceed on a class-wide basis. See
Howard v. City of Greenwood, 783 F.2d 1311, 1313 n.2 (5th Cir. 1986)
(concluding that “the plaintiffs failed to sustain their burden of proving” the
necessary commonality to support class certification under Rule 23(b)(3)).
On appeal, the Plaintiffs have focused their argument to contend that
class certification was appropriate specifically under Rule 23(b)(3). 3 “A class
may be certified under Rule 23(b)(3) only if it meets the four prerequisites
found in Rule 23(a) and the two additional requirements found in Rule
3 In the district court, the Plaintiffs sought certification under Rule 23(b)(2) and Rule
23(b)(3). The district concluded that the Plaintiffs were not entitled to certification under
Rule 23(b)(2) but certified the class under Rule 23(b)(3). Both parties now focus exclusively
on certification under Rule 23(b)(3).
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23(b)(3).” 4 Mullen, 186 F.3d at 623. The parties do not presently dispute that
the Plaintiffs meet the requirements of Rule 23(a). Instead, the arguments
address whether the Plaintiffs have satisfied Rule 23(b)(3), which permits class
certification if “the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Although
Rule 23(b)(3) requires both “predominance” of common questions of law and
4 Rule 23(a) provides as follows:
One or more members of a class may sue or be sued as representative parties
on behalf of all members only if:
(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).
Then, Rule 23(b)(3) provides that the district court may certify the putative class if:
the court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently
adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already
begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3).
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fact and “superiority” of a class action as a remedy, the Defendants here focus
only on the predominance requirement.
“The Rule 23(b)(3) predominance inquiry tests whether proposed classes
are sufficiently cohesive to warrant adjudication by representation.” Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). In short, “[w]here the
plaintiff seeks to certify a class under Rule 23(b)(3), the Rules demand ‘a close
look at the case before it is accepted as a class action.’” Madison v. Chalmette
Ref., L.L.C., 637 F.3d 551, 554 (5th Cir. 2011) (quoting Amchem, 521 U.S. at
615).
B.
We must consider the predominance issue under Rule 23(b)(3) in the
light of the elements of the Plaintiffs’ cause of action. See Castano v. Am.
Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996) (recognizing that “a court must
understand the claims, defenses, relevant facts, and applicable substantive law
in order to make a meaningful determination of the certification issues”). The
Plaintiffs’ claims here are RICO claims; thus, we turn to discuss the elements
of a civil RICO claim.
RICO provides, inter alia:
It shall be unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct 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). Additionally, RICO prohibits conspiracies to violate
§ 1962(c). Id. § 1962(d). A plaintiff may bring a civil action for RICO violations
under § 1962 if he or she is “injured in his business or property by reason of a
violation of section 1962 of this chapter.” Id. § 1964(c) (emphasis added).
This appeal thus implicates § 1964(c), which we have held requires “a
showing that the fraud was the ‘but for’ cause and ‘proximate’ cause of the
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injury.” Sandwich Chef of Tex., Inc. v. Reliance Nat’l Indem. Ins. Co., 319 F.3d
205, 218 (5th Cir. 2003). The Plaintiffs alleged a pattern of racketeering
activity consisting of acts of mail and wire fraud. See 18 U.S.C. § 1341 (mail
fraud); 18 U.S.C. § 1343 (wire fraud). We have traditionally required a plaintiff
presenting a civil RICO claim based on predicate acts of mail and wire fraud
to establish proximate cause by showing that he or she relied on a defendant’s
fraudulent misrepresentations. See In re Mastercard Int’l Inc., 313 F.3d 257,
263 (5th Cir. 2002) (“[A]lthough reliance is not an element of statutory mail or
wire fraud, we have required its showing when mail or wire fraud is alleged as
a RICO predicate.”). The Supreme Court has since held, however, “that a
plaintiff asserting a RICO claim predicated on mail fraud, need not show,
either as an element of its claim or as a prerequisite to establishing proximate
causation, that it relied on the defendant’s alleged misrepresentations.”
Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 661 (2008). Although
Bridge dispenses with first party reliance, “none of this is to say that a RICO
plaintiff who alleges injury ‘by reason of’ a pattern of mail fraud can prevail
without showing that someone relied on the defendant’s misrepresentations.”
Id. at 658. The extent to which Bridge alters the reliance requirement in RICO
class actions is not at issue on appeal, however, as the Plaintiffs concede that
proximate cause in their case depends on reliance. The Plaintiffs argue instead
that they have set forth an adequate common theory of reliance.
C.
The Plaintiffs must establish that they can prove reliance through
common evidence, as we have said that a class action cannot be certified if
proof of reliance will depend on individualized evidence:
[A] district court [considering a motion for class certification] must
perform sufficient analysis to determine that class members’ fraud
claims are not predicated on proving individual reliance. If the
circumstances surrounding each plaintiff’s alleged reliance on
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fraudulent representations differ, then reliance is an issue that
will have to be proven by each plaintiff, and the proposed class fails
Rule 23(b)(3)’s predominance requirement.
Unger v. Amedisys Inc., 401 F.3d 316, 321 (5th Cir. 2005). The Defendants
argue that the Plaintiffs’ theory of reliance is necessarily an individualized
inquiry.
Relying on the extensive record, the Defendants point out that the
Plaintiffs were subject to abounding representations about Ignite, including:
(1) positive and negative treatment in the popular press; (2) Ignite’s standard
forms and marketing materials, which new IAs received; and (3) varying
presentations from Presidential Directors who attempted to recruit new IAs to
join Ignite in presentations throughout the country. Because the record
establishes that each Plaintiff was subject to different representations about
Ignite, the Defendants argue that each Plaintiff must establish causation by:
identifying a particular misrepresentation that he or she received; and then
showing that the misrepresentation caused the Plaintiff to invest in Ignite,
thereby causing his or her loss. Similarly, the Defendants argue that even if
the Plaintiffs can make this showing, they are also entitled to rebut this
evidence with other evidence in the record, which might suggest that the
Plaintiffs knew that Ignite was an illegal pyramid scheme. See Sandwich Chef,
319 F.3d at 218–19 (recognizing that knowledge, which is actually a defense to
causation, is a relevant consideration when addressing class certification). In
sum, the Defendants contend that the nature of the proof in this case on the
issue of proximate cause will necessarily be individualized, meaning that
common issues of law and fact will not predominate over this significant
individualized issue.
The district court recognized that the Plaintiffs could not show through
common proof that they received an actual common misrepresentation about
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Ignite. Instead, the district court acknowledged that the Plaintiffs would have
to show the receipt of a misrepresentation through individualized proof and
that it was certainly possible that some class members may have known from
Ignite’s marketing pitches that it was a pyramid scheme. Nonetheless, the
district court certified the class on a second ground, that is, it concluded that a
jury could “infer” reliance if the Plaintiffs could establish that Ignite was a
pyramid scheme. The district court explained its decision as follows:
Although the litany of reasons that any individual class member
signed up to become an IA may vary, common sense compels the
conclusion that every IA believed they were joining a lawful
venture. That the defendants’ business opportunity is allegedly an
unlawful pyramid scheme in which the vast majority of
participants are sure to lose money, gives rise to an inference that
the only reason the class members paid the $329 sign-up fee (and
possibly other fees) is because the true nature of the ‘opportunity’
was disguised as something it was not. As such, establishing
proximate cause would not be an individualized inquiry; rather, it
could be determined as to all the class members at once. Because
it can rationally be assumed (at least without any contravening
evidence) that the legality of the Ignite program was a bedrock
assumption of every class member, a showing that the program
was actually a facially illegal pyramid scheme would provide the
necessary proximate cause.
On appeal, the Plaintiffs defend class certification on this basis, arguing that
they can establish proximate cause merely by establishing that Ignite was a
pyramid scheme.
The Plaintiffs’ theory relies not on a particular misrepresentation, but
instead on a “common sense” inference of reliance, which exists from the nature
of pyramid schemes. According to the Plaintiffs, a pyramid scheme is a unique
species of fraud because pyramid schemes are both illegal and require
participants to profit in the scheme by victimizing others, which, in the context
of Ignite, were most often friends and family. Thus, the Plaintiffs argue that
the fact-finder is entitled to infer that the Plaintiffs relied on a
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misrepresentation regarding Ignite’s legitimacy if the Plaintiffs can prove that
Ignite is a pyramid scheme, which the parties agree can be done through
common proof. Thus, the common proof that the Plaintiffs offer in this case is
evidence that Ignite is actually a pyramid scheme; and this evidence, they
claim, is sufficient to establish causation as well.
In response to this argument, the Defendants argue that the
individualized representations are still relevant. Even if Ignite was a pyramid
scheme, they say, it provided investors at the top of the scheme with an
opportunity to profit. Some individuals who lost money might still have
invested in the hope that they would be near the top of the pyramid. In this
connection, pyramid schemes are little different from other species of fraud—
some knowing participants in the fraud will profit, whereas many others will
lose money. Thus, the Defendants urge us to decertify the class so that the
Defendants can rebut the Plaintiffs’ common theory of reliance through
individualized trials.
For the reasons that will follow, we conclude that the Plaintiffs’ claimed
common theory of reliance does not hold together.
III.
First, the Plaintiffs’ theory of reliance depends on the premise that a
pyramid scheme is a unique type of fraud. We thus begin with a brief
discussion of pyramid schemes and turn to the actual representations about
the Ignite business, which are part of the record in this case.
A.
The Plaintiffs rely on Webster v. Omnitrition International, Inc., 79 F.3d
776 (9th Cir. 1996), to define the basic characteristics of an illegal pyramid
scheme. We now turn to the description of pyramid schemes in that case.
Initially, we should be clear that a “pyramid scheme” can be
distinguished from the many types of businesses organized in a “pyramid-
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shaped” hierarchical structure. A true pyramid scheme, as that term is used
here, refers to a type of illegal and fraudulent activity, structured in a fashion
that it “must eventually collapse.” Id. at 781. Pyramid schemes, unlike
pyramid-structured organizations, will collapse because such schemes are
designed to produce income from the continuous recruitment of new members
into a constantly narrowing sales market and not upon sales revenue from a
legitimate product to consumers in a normal market. Id. at 781–82. In short,
the scheme collapses when those recruited to sell dwarf the market of those
available to buy.
There are typically two elements to such a pyramid scheme: (1) payment
to an entity in return for the right to sell its product; and (2) the right, in
exchange for the payment, to receive rewards from the entity that are based
almost exclusively on the recruitment of new program participants. Id. at 781.
Under this standard, some businesses that engage in retail sales may still be
a pyramid scheme if “[t]he promise of lucrative rewards for recruiting others
tends to induce participants to focus on the recruitment side of the business at
the expense of their retail marketing efforts, making it unlikely that
meaningful opportunities for retail sales will occur.” Id. Thus, the primary
factor in deciding whether a business is a pyramid scheme is whether the
business focuses exclusively or almost exclusively on recruiting as opposed to
sales.
Pyramid schemes, however, are not losing propositions for all investors.
Instead, “pyramid schemes may make money for those at the top of the . . .
pyramid, but ‘must end up disappointing those at the bottom who can find no
recruits.’” Id. at 781 (quoting In re Koscot Interplanetary, Inc., 86 F.T.C. 1106,
1181 (1975)). Thus, an individual who participates in a pyramid scheme
necessarily takes a gamble that she will be reasonably near the top of the
pyramid. Although an individual may lose money if it turns out that she
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invested at the wrong time, this misjudgment does not, a fortiori, mean that
the individual is irrational. Such an investor may have rationally assumed
both that the business was a pyramid scheme and that the investment was
worth the gamble of being near the top of the pyramid. So, with this
background, we turn to examine some of the representations regarding Ignite
in this case.
B.
The record suggests that Ignite often promoted its multi-level marketing
program as just this sort of gamble to prospective IAs. Ignite’s Presidential
Directors, who traveled the country promoting Ignite to IAs and prospective
IAs, implied that Ignite was a pyramid scheme. In presentations to IAs and
prospective IAs, these officers repeatedly underscored that the way to make
money was by recruiting other IAs, not recruiting customers. The record shows,
for example, that Greg McCord admonished IAs in one presentation that “if
you keep concentrating on customers, you won’t make money.” Although these
Presidential Directors did not use the term “pyramid scheme” to describe
Ignite, a reasonable prospective IA could reasonably construe these
representations as the hallmarks of a pyramid scheme: Ignite predominately
pushes recruiting over selling, and thus expanding the number of IA
participants, over customer acquisition. 5 See Webster, 79 F.3d at 782.
Some representations were even more direct. Presidential Director
Randy Hedge repeatedly referred to the multi-level marketing business as a
“pyramid.” To illustrate, he told his audience on one occasion: “I don’t care if
you call [Ignite] an octagon, parallelogram, rectangle—they’re sending me a
check.” In another presentation, he shared an anecdote about recruiting an
5Although many of these pitches targeted IAs, the Presidential Directors apparently
often gave these presentations at widely-attended, “revival style” events attended by IAs and
prospective IAs alike.
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individual into Ignite after calling it a “pyramid deal” because the prospective
IA was only really interested in whether the deal was “makin’ any money.”
Similarly, various media outlets began to investigate whether Ignite was a
pyramid scheme. The Plaintiffs suggested in their complaint that the Dallas
Morning News published a story in 2005, which contained an indication that
Ignite could be an illegal pyramid scheme. Other media outlets produced
similar critical reports about Ignite in 2010 and 2011.
These promotions, although supportive of the Plaintiffs’ contention that
Ignite is a pyramid scheme, also buttress the Defendants’ position in opposition
to class certification, i.e., these comments suggest that the Plaintiffs will have
to prove RICO causation by relying on individualized, and not common, proof
of reliance. The Plaintiffs argue that these individualized representations
about Ignite drop from the case, however, based on the strength of their
proposed inference. Specifically, the Plaintiffs claim that a jury should infer
that the Plaintiffs did not rely on these representations because a rational
investor would not participate in a pyramid scheme.
IV.
Turning to the Plaintiffs’ argument that reliance may be inferred, we
hold that reliance cannot be inferred merely because a business is alleged to
be a pyramid scheme, particularly when the record in this case suggests that
investors were told that it was a pyramid scheme. Such an inference is
unsupported by our precedents or by the precedents in other circuits.
A.
1.
We begin with a discussion of our relevant precedents. Generally,
proximate cause of the alleged injury (here, misrepresentations caused
monetary loss) is a distinct element of a RICO claim, which must be established
separately from proving an underlying fraud. Thus, even if the Plaintiffs can
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establish through common evidence that the Defendants engaged in
fraudulent or illegal conduct, common issues of law and fact do not
predominate over individualized issues unless the Plaintiffs can establish
through common evidence that the fraudulent conduct caused their injury. See
Patterson v. Mobil Oil Corp., 241 F.3d 417, 419 (5th Cir. 2001) (“While there
may be an issue of fact common to all class members—the question of whether
or not Mobil was a valid subscriber to the workers’ compensation system—that
question does not predominate over the question of whether or not each
member of the class suffered a RICO injury.”). In Patterson, we concluded that
a plaintiff could establish proximate cause, and thus prove a RICO injury, by
showing “that she could have and would have sued Mobil, but did not do so
because the asserted false statements led her to believe her suit to be barred
by the workers’ compensation regime.” Id. Obviously, such a showing of
proximate cause would depend on the individual circumstances and
motivations of each plaintiff; and these types of individualized inquiries “defeat
the economies ordinarily associated with the class action device.” Id.
This point is illustrated by a case that bears a striking resemblance to
this case. Sandwich Chef, 319 F.3d at 224. In Sandwich Chef, the district
court certified a class action against a group of insurance companies, on the
basis that they had charged excessive premiums by sending inflated invoices
to policyholders and misrepresented the correctness of the premium charged.
Id. at 211. Evidence in the record also suggested that the charged rates were
illegal. Id. at 212. Nonetheless, we decertified the class. Id. at 224. We
reasoned that the plaintiffs in Sandwich Chef could not prove proximate cause
through common proof, because individualized issues of knowledge and
reliance would overwhelm any common proof. Id. at 220–21. Specifically, we
pointed out that the plaintiffs and the defendants negotiated the insurance
policies in individualized transactions; and evidence in the record suggested
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that the plaintiffs could have voluntarily assented to the illegal rate structures
so that they could receive other benefits in return. See id. at 212–13, 220–21.
Because the proof suggested that at least some of the plaintiffs could have
knowingly participated in the fraud, we held that the defendants were entitled
to undercut the plaintiffs’ evidence of reliance “with evidence that might
persuade the trier of fact that policyholders knew the amounts being charged
varied from rates filed with regulators and that they had agreed to pay such
premiums.” Id. at 220.
In sum, our precedents do not support an inference of reliance from
fraudulent conduct, even when the fraudulent conduct at issue is illegal.
Instead, we have recognized that, in most cases, reliance will naturally turn
on evidence that will differ from case to case. Individual plaintiffs will receive
different pitches to join a business, and they will have differing expectations
in terms of what they expect to receive from the business. Generally, the
defendants are entitled to probe these differences at trial by presenting
evidence that the plaintiffs knew of the fraud, yet nonetheless participated in
it because they believed that it would benefit them.
2.
The Plaintiffs argue, however, that precedents in other circuits allow for
an inference of reliance in certain RICO fraud cases; and they further contend
that such an inference is warranted on the facts of this case. The Plaintiffs
primarily rely, on appeal, on three decisions from other circuits, to which we
now turn.
First, they point to Klay v. Humana, in which the Eleventh Circuit
approved the certification of a class of physicians who alleged that a group of
health maintenance organizations (“HMOs”) defrauded the physicians out of
adequate reimbursement for their services rendered by programming their
computer systems to pay the physicians less than they were entitled. 382 F.3d
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1241, 1260 (11th Cir. 2004). The Klay court concluded that the plaintiffs’
claims could be certified as a class action because a jury could infer reliance,
stating:
It does not strain credulity to conclude that each plaintiff, in
entering into contracts with the defendants, relied upon the
defendants’ representations and assumed they would be paid the
amounts they were due. A jury could quite reasonably infer that
guarantees concerning physician pay—the very consideration
upon which these agreements are based—go to the heart of these
agreements, and that doctors based their assent upon them. . . .
Consequently, while each plaintiff must prove reliance, he or she
may do so through common evidence (that is, through legitimate
inferences based on the nature of the alleged misrepresentations
at issue).
Id. at 1259. The Second Circuit reached a similar conclusion in a case involving
fraudulent overbilling. In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108
(2d Cir. 2013). Relying on Klay, the Foodservice court allowed the case to
proceed as a class action, in part because “payment may constitute
circumstantial proof of reliance based on the reasonable inference that
customers who pay the amount specified in an inflated invoice would not have
done so absent reliance upon the invoice’s implicit representation that the
invoiced amount was honestly owed.” Id. at 120.
Finally, the Tenth Circuit in CGC Holding Co. v. Broad & Cassel
confronted a certified class of prospective borrowers who paid a non-refundable
“loan commitment fee” for a loan that the lender never intended to issue. 773
F.3d 1076, 1082 (10th Cir. 2014). There, the court concluded that the class
could proceed because a fact-finder could infer that the plaintiffs paid the fee
in reliance on a misrepresentation that the transaction was legitimate. See id.
at 1091–92. Specifically, the court reasoned that such an inference was
appropriate in significant part because the victims of the fraud “were
completely deprived of any benefit from their transaction.” Id. at 1093.
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In sum, these cases allow for class certification based on an inference of
reliance when all individualized issues truly drop out of the case. In each of
these cases, a class of plaintiffs paid a sum of money or declined full payment
for services rendered without receiving anything of value in return.
Additionally, there was no evidence in the cases to suggest any other rational
explanation for the plaintiffs’ behavior other than that they were duped by the
defendants. Thus, those courts allowed class certification because the only
reasonable explanation for the plaintiffs’ behavior was that they relied on a
misrepresentation.
B.
Turning to the record in this case, we conclude that the Plaintiffs’
evidence does not support a sufficient inference of reliance. Individuals may
knowingly choose to invest in a pyramid scheme such as Ignite for any number
of reasons, most notably because Ignite provides an opportunity to make
money. Thus, the class cannot be certified under our precedents or the
precedents cited by the Plaintiffs because individualized issues of reliance and
knowledge will be relevant to each Plaintiff’s case.
1.
First, the mere fact that this case involves a pyramid scheme does not
take this case outside our well-settled precedents regarding predominance in
both Patterson and Sandwich Chef. Although the Plaintiffs may be able to
establish common proof of a fraud, the common evidence that a fraud existed
is not common evidence that the Plaintiffs were injured by the fraud.
This case is less compelling for class certification than Patterson. In
Patterson, there was a common misrepresentation, i.e., the defendant allegedly
misrepresented to them that it had workers’ compensation insurance. Here, it
is not clear that all Plaintiffs were told that Ignite was a lawful business, given
the differing pitches to differing prospective IAs. It appears that some
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No. 14-20128
prospective IAs received only versions of the pitch that Ignite provided an
opportunity for them to make significant sums of money. Additionally, even if
the Plaintiffs here could establish an actual common misrepresentation that
Ignite was a legitimate business, they would still have to show that they were
injured by the misrepresentation. In Patterson, we recognized that the
plaintiffs had to show that they would have sued Mobil had they known that
the misrepresentation about its insurance was false. 241 F.3d at 419. Just as
there are many reasons why a party would choose to file or not file a lawsuit,
there are many reasons why someone would choose to join or not join a pyramid
scheme. The evidence here suggests that investing in Ignite was quite similar
to gambling—individuals could have become IAs as “a form of escape, a casual
endeavor, a hobby, a risk-taking money venture, or scores of other things.”
Poulos v. Caesars World, Inc., 379 F.3d 654, 668 (9th Cir. 2004).
Nor is a pyramid scheme unique because it is illegal. In Sandwich Chef,
the plaintiffs accused the defendants of lying to state regulators and charging
illegal rates. 319 F.3d at 212. Nonetheless, we also pointed out that the
evidence suggested that the plaintiffs could very well want their insurance
policies to deviate from filed rates because such deviations could actually
benefit the plaintiffs in other respects. Id. at 213. Thus, we decertified the
class because the defendants were entitled to show through individualized
evidence that the plaintiffs “knew the amounts being charged varied from rates
filed with regulators and that they had agreed to pay such premiums.” Id. at
220.
A pyramid scheme is no different from the insurance regime in Sandwich
Chef. By joining Ignite, an IA had the opportunity to make money, perhaps
even significant sums of money, by building a large pyramid beneath them.
Although the Plaintiffs suggest that they would not join a pyramid scheme like
Ignite because such a scheme would depend in large part on defrauding friends
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and family members, this supposed distinction is unavailing. First, an
individual could rationally believe that he could make money for friends and
family members if they were all investing at the top of the pyramid. Indeed,
the record reflects that the Presidential Directors regularly told prospective
IAs that they had enriched their spouses, children, and friends by bringing
them into the Ignite program. Second, the same arguments could be made
about gambling, i.e., that spending money on gambling harms an individual’s
family. But gambling is just the type of activity where no such broad
assumptions can be made about the reasons for human behavior. See Poulos,
379 F.3d at 668. And finally, the Plaintiffs have cited no case law that has
adopted such an elevated view of human nature.
Thus, the Plaintiffs will have to rely upon individualized proof, and not
a generalized inference, to establish proximate cause in each particular RICO
case. 6
2.
In that connection, the Plaintiffs’ cases also fail to support class
certification on the basis of an inference of reliance. Klay, Foodservice, and
CGC all involved fraudulent schemes in which the plaintiff victims had no hope
of recovering their investments. The courts could not point to any evidence
that might provide an alternative explanation for the plaintiffs’ conduct other
than that they relied on a misrepresentation that they might profit.
By contrast, an investor could reasonably choose to knowingly invest in
a pyramid scheme in the hope that they would make money. As we have
We note as well that, even if the Plaintiffs could establish reliance through an
6
inference, the Defendants would still be entitled to offer the evidence in the record regarding
the misrepresentations about Ignite to probe each Plaintiff’s knowledge in individualized
trials. See Sandwich Chef, 319 F.3d at 220. Knowledge is a defense to a RICO fraud claim,
and the Defendants would be entitled to present this evidence on an individualized basis, as
pertains to each Plaintiff. See id. at 220–21.
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already explained, a pyramid scheme provides an opportunity for those at the
top of the pyramid to profit from their investments. Webster, 79 F.3d at 781.
While many of the Plaintiffs might have decided to invest in the scheme in the
belief that it was legal, it is equally possible that many of the Plaintiffs chose
to invest in the scheme in the belief that, legal or illegal, it provided them with
an opportunity to make money.
Additionally, the representations at issue in this litigation are far more
varied than the misrepresentations in Klay, Foodservice, and CGC. In each of
those cases, the many individual representations essentially said the same
thing—the invoices and bills provided either an amount due or an amount
paid, representing that the stated amount was correct. By contrast, the
representations here vary in their contents. Some of Ignite’s marketing
materials touted its legitimacy, whereas other presentations undermined that
legitimacy. To recover on their RICO claims, the Plaintiffs must show that
they relied upon the former materials, and not the latter; they may only do so
through individualized proof. Thus, the class must be decertified.
V.
In sum, the district court erred in certifying the class because common
questions of law and fact will not predominate over individualized inquiries
into causation and knowledge. The case is therefore REMANDED for the entry
of an order, VACATING the order of certification and for such further
proceedings as may be appropriate and not inconsistent with this opinion.
VACATED and REMANDED.
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WIENER, Circuit Judge, dissenting:
I am compelled to respectfully dissent today by the realization that the
panel majority’s opinion will vaccinate illegal pyramid schemes against all civil
litigation, immunizing them not just from class actions but ultimately from all
judicial challenges. By erecting this barrier to class certification based on
nothing more than the theoretical possibility of prior knowledge of illegality,
the panel majority creates an insurmountable barrier in this circuit to future
class certification of cases that claim the presence of an illegal pyramid scheme.
But, even worse, because individuals who are duped into joining such schemes
uniformly invest relatively few dollars, none will possibly be able to afford to
litigate their individual claims separately. Absent the availability of a class
action, there simply will be no possibility of court challenges to such pyramid
schemes.
The majority opinion will serve to instruct trial courts in this circuit to
deny class certification on the merely theoretical possibility of a class member’s
knowledge of the fraud without requiring the defendant to adduce evidence of
actual investor knowledge of illegality. Because illegal pyramid schemes are
certain to be indistinguishable (to the average consumer) from legal multi-level
marketing programs, all such arrangements are likely to present some
indication of “illegality.” Thus, defendant schemers will always have some
basis to demonstrate possible knowledge of the fraud on the part of potential
class members and thereby defeat reliance.
I readily acknowledge that even if a class action were certified here, the
defendants might go on to prove that their enterprise is legal and legitimate. 1
1 Any inference of reliance at the class certification stage is only that and nothing
more: “the sole result of this inference is that the class members will not be required to testify
as to their reliance on the [defendants’] misrepresentations and omissions.” CGC Holding Co.
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But, that will never be known. Absent the availability of a class action such as
the one sought in the instant civil RICO suit, no putative prevailing plaintiff
will be able to afford to litigate his or her claim individually. 2 The victims of
such schemes are never big investors with huge losses (as they usually are in
Ponzi schemes). Rather, they are virtually always unsophisticated individuals
whose relatively small losses can never justify separate litigation of their
claims. 3 Absent the availability of a class action through which to pursue the
claims of all similarly situated parties in globo, the founders and operators of
illegal pyramid schemes will be totally shielded from civil litigation and thus
from civil liability. Here, this means that over 200,000 plaintiffs will be left
entirely without recourse.
At bottom, this appeal requires us to decide whether aspiring class
members—allegedly the victims of an allegedly illegal pyramid scheme—can
show proximate causation through common evidence sufficient to satisfy
Federal Rule of Civil Procedure 23(b)(3)’s predominance requirement at the
v. Broad & Cassel, 773 F.3d 1076, 1093 (10th Cir. 2014). The “inference does not shift the
burden of proof at trial on the element of RICO causation (or any other elements of the
claim)—plaintiffs will still have to prove RICO causation by a preponderance of the evidence
to win on the merits.” Id. “Similarly, the trier of fact is not required to accept the inference;
it is merely permitted to utilize it as common evidence to establish the class’s prima facie
claims under RICO.” Id.
2 Reyes v. Netdeposit, LLC, ___ F.3d ___, 2015 WL 5131287, at *18 (3d Cir. Sept. 2,
2015) (“Class actions are often the only practical check against the kind of widespread mass-
marketing scheme alleged here. The individual claims arising from such conduct are usually
too small to justify suit unless aggregated in a class action. This is particularly true when, as
is often the case, the scheme targets unsophisticated consumers with little disposable income
and without the means or wherewithal to seek assistance of legal counsel. As a practical
matter, the average victim of such a scheme nearly always finds it far easier—and much
cheaper—to reluctantly accept any loss and move on than to undertake the expense and
inconvenience endemic in the protracted process of trying to recover a few dollars years
later.”).
3 At oral argument, the plaintiffs’ counsel represented that the average loss of each
potential class member is $200 to $300.
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initial class certification stage. The defendants contend that the district court
erred in certifying the plaintiffs’ claim that the defendants induced them to
participate in an illegal pyramid scheme by misrepresenting Ignite as a
legitimate business opportunity, thereby causing the plaintiffs to suffer
monetary losses.
Although the defendants vociferously deny that Ignite is an illegal
pyramid scheme, the panel majority selectively cherry picks the factual record
to reach the conclusion that it is at least possible that the putative class
members had some knowledge that the scheme was illegal. In doing so, the
majority allows the defendants to contend that the plaintiffs knowingly
participated in the fraud, all the while maintaining that there was none. The
majority holds that the mere “possibility” that class members knew of Ignite’s
illegality creates individualized issues of reliance sufficient to defeat class
certification. I am firmly convinced that, to the contrary, the district court—to
which we owe considerable deference—correctly ruled that the plaintiffs can
adequately demonstrate proximate causation through common proof, making
class certification appropriate. Satisfied that the plaintiffs may rely on a
common inference of reliance and that the district court did not err in so
holding, I would affirm the district court’s class certification. Here’s why.
I.
We review a district court’s class certification decision under the very
deferential abuse of discretion standard “in ‘recognition of the essentially
factual basis of the certification inquiry and of the district court’s inherent
power to manage and control pending litigation . . . . Whether the district court
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applied the correct legal standard in reaching its decision on class certification,
however, is a legal question that we review de novo.’” 4
To certify a class, initially the party seeking certification must comply
with Federal Rule of Civil Procedure 23. That party must first satisfy Rule
23(a)’s requirements of numerosity, commonality, typicality, and adequacy of
representation. 5 Next, that party must satisfy one of Rule 23(b)’s three
provisions. 6 Here, the plaintiffs rely on subsection (3) of Rule 23(b), “which
requires that questions of law or fact common to the class predominate over
questions affecting only individual class members, and that a class action is
superior to other available methods for the fair and efficient adjudication of
the controversy.” 7 The defendants do not dispute the district court’s Rule 23(a)
determination and contend only that it erred in finding Rule 23(b)(3)’s
predominance requirement met. “Considering whether ‘questions of law or fact
common to class members predominate’ begins, of course, with the elements of
the underlying cause of action.” 8
II.
To establish a civil RICO violation here, the plaintiffs must demonstrate
proximate causation. 9 Although they need not necessarily prove first-party
reliance, the plaintiffs “must establish at least third-party reliance in order to
prove causation.” 10 The district court held that the plaintiffs may establish
4 Regents of Univ. of Cal. v. Credit Suisse First Bos. (USA), Inc., 482 F.3d 372, 380 (5th
Cir. 2007) (quoting Allison v. Citgo Petrol. Corp., 151 F.3d 402, 408 (5th Cir. 1998)).
5 Fed. R. Civ. P. 23(a).
6 Fed. R. Civ. P. 23(b).
7 Ahmad v. Old Republic Nat. Title Ins., 690 F.3d 698, 702 (5th Cir. 2012) (citing Fed.
R. Civ. P. 23(b)).
8 Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2184 (2011).
9 Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 654 (2008).
10 Id. at 659, 661 (“RICO’s text provides no basis for imposing a first-party reliance
requirement.”).
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proximate causation through common proof. First, the district court recognized
Ignite’s implicit representation that it is a lawful venture. 11 Second, the district
court held that the allegation that the defendants were running an illegal
pyramid scheme supports an inference that the plaintiffs chose to participate
in the Ignite program only because its illegal nature was hidden from them.
Put simply, the plaintiffs could use a common inference that they relied on the
implicit misrepresentation that Ignite presented a legitimate business
opportunity. In so holding, the district court found that illegal pyramid
schemes present a sure loss for the vast majority of participants. The court
stated that “[b]ecause it can rationally be assumed (at least without
contravening evidence) that the legality of the Ignite program was a bedrock
assumption of every class member, a showing that the program was actually a
facially illegal pyramid scheme would provide the necessary proximate
cause.” 12 Under this theory, if the plaintiffs are able to prove that Ignite was
an illegal pyramid scheme—an element that will undoubtedly be satisfied by
common proof—they will also prove both a misrepresentation and proximate
causation.
As the district court noted, this theory is far from novel. Indeed, many
courts, including the Second, Tenth, and Eleventh Circuits, have recognized
that class certification is warranted in this context when proximate causation
may be established through a “common sense” inference that the class
members’ actions cannot be explained by anything but reliance on the
11 The defendants do not dispute this point, yet the majority notes that “it is not clear
that all Plaintiffs were told that Ignite was a lawful business . . . .” This statement ignores
that the alleged misrepresentation—that Ignite is a lawful venture—is implied.
12 Torres v. SGE Mgmt. LLC, No. 4:09-CV-2056, 2014 WL 129793, at *9 (S.D. Tex. Jan.
13, 2014).
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defendants’ conduct. 13 In such cases, courts infer that “members of the plaintiff
class relied upon the purported legitimacy of the defendant with which they
transacted.” 14
For example, in CGC Holding Co. v. Broad & Cassel, a class of borrowers
sued a group of lenders, claiming that, up front, the lenders fraudulently
13 See CGC Holding Co., 773 F.3d at 1089–90 (“In the RICO context, class certification
is proper when ‘causation can be established through an inference of reliance where the
behavior of plaintiffs and the members of the class cannot be explained in any way other than
reliance upon the defendant’s conduct.’” (quoting In re Countrywide Fin. Corp. Mortg. Mktg.
& Sales Practices Litig., 277 F.R.D. 586, 603 (S.D. Cal. 2011)); In re U.S. Foodservice Inc.
Pricing Litig., 729 F.3d 108, 120 (2d Cir. 2013) (“In cases involving fraudulent overbilling,
payment may constitute circumstantial proof of reliance based on the reasonable inference
that customers who pay the amount specified in an inflated invoice would not have done so
absent reliance upon the invoice’s implicit representation that the invoiced amount was
honestly owed.”); Klay v. Humana, Inc., 382 F.3d 1241, 1259 (11th Cir. 2004) (“It does not
strain credulity to conclude that each plaintiff, in entering into contracts with the defendants,
relied upon the defendants’ representations [of legitimacy] and assumed they would be paid
the amount they were due.”); see also Cohen v. Trump, 303 F.R.D. 376, 385 (S.D. Cal. 2014)
(“Courts have found that reliance can be established on a class-wide basis where the behavior
of plaintiffs and class members cannot be explained in any way other than reliance upon the
defendant's conduct.”); Negrete v. Allianz Life Ins. Co. of N. Am., 287 F.R.D. 590, 611–12 (C.D.
Cal. 2012) (“That Allianz annuities are allegedly inferior in value and performance to
comparable investment products . . . gives rise to an inference that consumers decided to
purchase the ‘inferior’ annuities because of the standardized marketing materials at issue in
this litigation, for they otherwise had no reason to do so.”); Minter v. Wells Fargo Bank, N.A.,
274 F.R.D. 525, 546 (D. Md. 2011) (“[I]t is reasonable to infer that plaintiff class members
would not have transacted with Prosperity had they known Prosperity was not a legitimate
lender . . . .”); Robinson v. Fountainhead Title Grp. Corp., 257 F.R.D. 92, 95 (D. Md. 2009)
(“[I]t would be a reasonable inference to assume that a class member who purchased services
from Assurance Title relied on the legitimacy of that organization in paying the rate
charged.”); Chisolm v. TranSouth Fin. Corp., 194 F.R.D. 538, 561 (E.D. Va. 2000) (“[Plaintiffs]
clearly made payments in reliance upon the assurance that the process of repossession, sale
and all subsequent steps were taken in conformity with the law and that their rights were
protected. To conclude otherwise would deny human nature, run counter to the traditional
presumption in favor of actors operating under rational economic choice, and leave the Court
with an absurd conclusion.”); Minterme Peterson v. H&R Block Tax Servs., Inc., 174 F.R.D.
78, 84–85 (N.D. Ill. 1997) (“It is inconceivable that the class members would rationally choose
to pay a fee for a service they knew was unavailable . . . . The only logical explanation for
such behavior is that the class members relied on the RAL Fact Sheet’s representation that
they could take advantage of RAL by paying the requisite fee.”).
14 Minter, 274 F.R.D. at 546.
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extracted nonrefundable loan commitment fees from the borrowers for loans
that the lenders never intended to provide. 15 There, the plaintiffs sought class
certification on the theory “that no rational economic actor would enter into a
loan commitment agreement with a party they knew could not or would not
fund the loans.” 16 The Tenth Circuit held that “plaintiffs’ payment of up-front
fees allows for a reasonable inference that the class members relied on lenders’
promises, which later turned out to be misrepresentations or omissions of
financial wherewithal.” 17
In In re U.S. Foodservice Inc. Pricing Litigation, the Second Circuit
upheld class certification in a similar context. 18 There, customers alleged that
a food distributor engaged in a fraudulent overbilling scheme by producing
inflated invoices, and the district court granted class certification. On appeal,
the distributor asserted that individualized issues of reliance should defeat
certification. The Second Circuit upheld the class certification, holding that
proximate causation could be proved through a generalized inference of
reliance:
In cases involving fraudulent overbilling, payment may constitute
circumstantial proof of reliance based on the reasonable inference
that customers who pay the amount specified in an inflated invoice
would not have done so absent reliance upon the invoice’s implicit
representation that the invoiced amount was honestly owed.
Fraud claims of this type may thus be appropriate candidates for
class certification because “while each plaintiff must prove
reliance, he or she may do so through common evidence (that is,
15 773 F.3d at 1080.
16 Id. at 1081.
17 Id. at 1081, 1091–92 (“More specifically the fact that a class member paid the
nonrefundable up-front fee in exchange for the loan commitment constitutes circumstantial
proof of reliance on the misrepresentations and omissions regarding Hutchens’s past and the
defendant entities’ ability or intent to actually fund the promised loan.”).
18 729 F.3d at 120.
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through legitimate inferences based on the nature of the alleged
misrepresentations at issue).” 19
Finally, in Klay v. Humana, Inc., physicians alleged that health
maintenance organizations (HMOs) conspired to underpay them for their
services. 20 The alleged misrepresentations at issue were the HMOs’ assurance
that they would reimburse the physicians for medically necessary services and
their provision of explanation of benefits (EOB) forms representing that they
paid the physicians the proper amounts. 21 Despite recognizing individualized
issues of reliance surrounding the EOB forms, the Eleventh Circuit found no
such issues regarding the HMOs’ “antecedent representations about [their]
reimbursement practices”:
It does not strain credulity to conclude that each plaintiff, in
entering into contracts with the defendants, relied upon the
defendants’ representations and assumed they would be paid the
amounts they were due. A jury could quite reasonably infer that
guarantees concerning physician pay—the very consideration
upon which those agreements are based—go to the heart of these
agreements, and that doctors based their assent upon them. 22
Rejecting the district court’s analysis and the applicability of this line of
cases from other circuits, the majority now holds that the plaintiffs here cannot
establish proximate causation through common proof because a few potential
class members might have known of Ignite’s illegal nature. Based on that
theoretical possibility that a class member might have had actual knowledge
of the scheme’s illegality, the majority jumps to the conclusion that individual
issues of reliance predominate. In so doing, the majority fundamentally
19 Id. (quoting Klay, 382 F.3d at 1259).
20 382 F.3d at 1246.
21 Id. at 1259.
22 Id.
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misunderstands—or misrepresents—the nature of pyramid schemes and
ignores the absence of evidence, as found by the district court, suggesting that
any class member had knowledge of Ignite’s alleged illegality. The majority
further errs in assuming that rational economic actors would knowingly
participate in an illegal pyramid scheme. This leads to the majority’s stripping
these and future plaintiffs of any means to pursue class actions against
pyramid schemes in this Circuit. And this, in turn, immunizes such illegal
schemes from any judicial challenge because individual losses can never justify
solo litigation of such claims.
A.
First, the majority’s conclusion that the class members might have
recognized the Ignite program as an illegal pyramid scheme is based on the
false premise that such schemes are easily recognizable. A pyramid scheme is
characterized by the payment by participants of money to the
company in return for which they receive (1) the right to sell a
product and (2) the right to receive in return for recruiting other
participants into the program rewards which are unrelated to the
sale of the product to ultimate users. 23
But alone possessing these two characteristics does not make a pyramid
scheme illegal. 24 Rather, “satisfaction of the second element of the . . . test is
the sine qua non of a pyramid scheme . . . .” 25 For this reason, in determining
a scheme’s legality, careful attention must be paid to whether the program
23 In re Koscot Interplanetary, Inc., 86 F.T.C. 1106, 1181 (1975).
24 Indeed, as the defendants note, many, presumably legal, multi-level marketing
programs such as Mary Kay, Tupperware, Amway, and Avon use this approach. See United
States v. Gold Unlimited, Inc., 177 F.3d 472, 479–80 (6th Cir. 1999) (“Some structures pose
less risk of harm to investors and the public, however, and authorities permit these programs
to operate even though the programs contain some elements of a pyramid scheme.”).
25 Webster v. Omnitrition Intern., Inc., 79 F.3d 776, 781 (9th Cir. 1996).
32
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emphasizes recruitment over marketing. Notably, “[n]o clear line separates
illegal pyramid schemes from legitimate multilevel marketing programs; to
differentiate the two, regulators evaluate the marketing strategy (e.g.,
emphasis on recruitment versus sales) and the percent of product sold
compared with the percent of commissions granted.” 26 Because illegal pyramid
schemes are not easily recognizable and their (temporary) success rests on
disguising the scheme, they are “inherently deceptive.” 27 Indeed, “the very
reason for [their] per se illegality . . . is their inherent deceptiveness and the
fact that the futility of the plan is not apparent to the consumer participant.” 28
Further obstructing a superficial judgment on whether a pyramid scheme is in
fact illegal is that internal policies, such as those that “deter inventory loading
and encourage retail sales,” 29 must be examined closely. Here, the majority
assumes that the information necessary to make this determination was
available to the class. But, just because an officer of a corporation—never mind
its independent contractors or the media—insinuate that something is
pyramid-like does not make it illegal.
The majority posits that isolated representations by Ignite could have or
should have put class members on notice that they were joining an illegal
pyramid scheme. Stated differently, the majority uses the very evidence on
which the plaintiffs rely to establish that Ignite is an illegal pyramid scheme
to reject a common inference of reliance. Although the record contains isolated
representations by Ignite that emphasize recruiting over marketing or even
reference the word “pyramid” in relation to Ignite, these random
26 Gold Unlimited, 177 F.3d at 475 (emphasis added).
27 Kugler v. Koscot Interplanetary, Inc., 293 A.2d 682, 690 (N.J. Super. Ct. Ch. Div.
1972).
28 Webster, 79 F.3d at 788 (citation and quotation marks omitted).
29 See id. at 783 (citing In re Amway Corp., 93 F.T.C. 618 (1979)).
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representations fall well short of those that would be necessary to put enough
class members on notice that they were joining an illegal pyramid scheme. As
courts have long recognized, pyramid schemes are inherently deceptive, and
their very success depends on keeping their illegality a secret.
More importantly, the line between a legal “multi-level marketing
entity” and an “illegal pyramid scheme” is fuzzy at best. The two are likely
indistinguishable to the typical consumer participants or even to the corporate
officers themselves. Whether a scheme is illegal is often determinable only
after the scheme has failed and extensive litigation. Courts, let alone the
typical unsophisticated participants, cannot decide whether or not a scheme is
illegal based only on a handful of isolated representations. Yet this is what the
majority has done, and this is the very responsibility with which the majority
now charges prospective consumer participants in pyramid schemes: they
must immediately recognize a scheme as illegal when faced with divergent
representations as to marketing and recruitment. It is simply unrealistic to
require unsophisticated consumer participants to be so finely attuned to the
intricate mechanics of sophisticated fraudulent schemes and to predict how
those schemes will be viewed by regulators and courts.
More concerning to me is the reality that the panel majority’s opinion
provides illegal pyramid schemers with a free pass to avoid any court challenge
by immunizing them from class actions. The majority allows such schemers to
maintain the appearance of legitimacy while injecting just enough suspicion
into the consumer marketplace to defeat class certification. Simply warning
participants that “if you keep concentrating on customers, you won’t make
money,” referring to the scheme as “an octagon, parallelogram, [or] rectangle,”
and calling the scheme a “pyramid deal,” will now be sufficient to avoid all
litigation and thus all liability. In other words, even if the program otherwise
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holds itself out as a legitimate business opportunity and even emphasizes, as
Ignite did, the importance of marketing over recruiting, 30 isolated intimations
of illegality or stray remarks are all that it will take to put prospective
consumer participants on notice of the fraud. 31
30 At least one iteration of Ignite’s “Independent Associate Terms & Conditions”
required participants to assent to the following acknowledgment:
I understand that I will not receive any compensation whatsoever for the act
of sponsoring or recruiting, and that I will only be compensated for selling
Stream Energy products and services to customers and based upon activities
of other IAs only to the extent of sales of Stream Energy products and services
to customers.
(Underlining in original.) In its briefing, the defendants again confirm this point: “The only
way an IA can receive any compensation is to sell energy to customers. Stream Energy pays
zero compensation solely for recruiting.” (Emphasis in original.)
31 Recently, the Third Circuit recognized and avoided a similar problem to the one the
majority now creates. In Reyes, 2015 WL 5131287, at *1, the plaintiffs sought certification on
a RICO sham-enterprise theory, alleging that telemarketing firms contacted unsuspecting
individuals and, in offering them something of little or no value, obtained bank account
information later used to make unauthorized debits from the individuals’ bank accounts.
Recognizing the class members’ sham theory of liability, the district court found that the class
members failed to satisfy Rule 23(b)(3)’s predominance requirement “because different sales
pitches were used and different products were pitched.” Id. at *17. The Third Circuit rejected
this analysis, holding:
if absolute conformity of conduct and harm were required for class certification,
unscrupulous businesses could victimize consumers with impunity merely by
tweaking the language in a telemarketing script or directing some (or all) of
the telemarketers not to use a script at all but to simply orally convey a general
theme designed to get access to personal information such as account numbers.
Id. The court recognized further:
although such subtle but irrelevant variations in the manner of defrauding
members of the public would not insulate unscrupulous marketers from
liability in individual suits, it would—for all practical purposes—insulate them
from class actions. An interpretation of Rule 23 that places class actions
beyond the reach of consumers who have been victimized by fraudulent
schemers who are wise enough to adopt schemes with subtle (but meaningless)
variations would invite the kind of consumer fraud that . . . is alleg[ed] here.
Id. at *18.
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B.
Second, even if participants could have reasonably recognized Ignite as
an illegal pyramid scheme, I am convinced that the majority errs in rejecting
a common inference of proximate causation in the absence of evidence
demonstrating that participants had actual knowledge that Ignite was an
illegal pyramid scheme. This approach by the majority is inconsistent with our
precedent which requires evidence of actual knowledge, not the mere
possibility of knowledge. The panel majority approvingly cites Sandwich Chef
of Texas, Inc. v. Reliance National Indemnity Insurance, 32 categorizing it as “a
case that bears a striking resemblance to this case.” But, the majority ignores
a crucial distinction. In Sandwich Chef, the insureds alleged that the insurers
charged premiums in excess of approved rates and misrepresented the
correctness of the premiums charged. 33 We rejected class certification because
the insureds could not prove proximate causation through common proof. But
there, the insurers not only contended that the insureds “were aware that [the
insurance] carriers were charging them more than the filed rates,” but also
“introduced evidence that . . . class members individually negotiated with
insurers regarding workers’ compensation and insurance premiums.” 34 Thus,
“[k]nowledge that invoices charged unlawful rates, . . . according to a prior
agreement between the insurer and the policyholder, would eliminate reliance
and break the chain of causation.” 35
Unlike in Sandwich Chef, the district court here expressly found that
there was no evidence that any class member knew Ignite was an illegal
32 319 F.3d 205 (5th Cir. 2003).
33 Id. at 224.
34 Id. at 220 (emphasis added).
35 Id.
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pyramid scheme! 36 The district court made this finding after hearing argument
and testimony, considering the evidence, reviewing the parties’ submissions,
and examining the record. As here we must deferentially review a district
court’s factual findings for abuse of discretion, I cannot join the majority in its
endeavor to find its own facts without any deference—or recognition that such
deference is owed—to the district court’s factual determination. 37
Reversing the district court’s finding of an absence of evidence of class
members’ actual knowledge of the alleged fraud, the panel majority holds that
individual issues of reliance predominate based on only a theoretical
possibility. Critically, the majority’s approach will preclude a predominance
finding in each and every class action fraud case that requires a showing of
reliance. Indeed, “if bald speculation that some class members might have
knowledge of a misrepresentation were enough to forestall certification, then
no fraud allegations of this sort (no matter how uniform the misrepresentation,
purposeful the concealment, or evident plaintiffs’ common reliance) could
proceed on a class basis . . . .” 38
36 See Torres, 2014 WL 129793, at *9 (“[I]t can rationally be assumed (at least without
any contravening evidence) that the legality of the Ignite program was a bedrock assumption
of every class member . . . .” (emphasis added)). Other courts have distinguished Sandwich
Chef on the same basis. See, e.g., In re U.S. Foodservice, 729 F.3d at 120 (distinguishing
Sandwich Chef because “the record . . . contain[ed] no such individualized proof indicating
knowledge or awareness of the fraud by any plaintiffs” (emphasis in original)).
37 See Credit Suisse First Bos., 482 F.3d at 380 (We review a district court’s class
certification decision “for abuse of discretion in recognition of the essentially factual basis of
the certification inquiry and of the district court’s inherent power to manage and control
pending litigation . . . .” (quotation marks omitted)).
38 In re U.S. Foodservice, 729 F.3d at 122; see also Pub. Emps.’ Ret. Sys. of Miss. v.
Merrill Lynch & Co., 277 F.R.D. 97, 118–19 (S.D.N.Y. 2011) (“Sheer conjecture that class
members ‘must have’ discovered [the misrepresentations] is insufficient to defeat Plaintiff’s
showing of predominance when there is no admissible evidence to support Defendant’s
assertions.”).
37
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C.
Third, even assuming that an average prospective participant could have
reasonably known that Ignite was an illegal pyramid scheme and that there is
evidence of this knowledge, I find the panel majority’s assumption that a
rational economic actor would join an illegal pyramid scheme to be
unreasonable. The majority hypothesizes that individuals might join illegal
pyramid schemes to exploit them because early investors in such schemes just
might reap profits from downstream investors. I note initially that the
defendants presented no evidence that any class member joined or would have
joined the Ignite program in spite of its illegality. The defendants only point to
evidence of participants profiting from the scheme, contending that this is
enough to indicate that a rational actor would knowingly participate in an
illegal pyramid scheme. But this syllogism proves too much. That individuals
can profit from illegal pyramid schemes does not necessarily support the
conclusion that rational individuals will knowingly participate in illegal
pyramid schemes.
More to the point, and as the district court noted, even though class
members might have joined Ignite for a vast array of reasons, it flies in the
face of reason to conclude that any of these reasons conflict with a universal
“bedrock assumption” that Ignite presented a legitimate business opportunity.
Simply put, in the face of almost certain losses, illegal pyramid schemes do not
present the sort of opportunity in which a reasonably informed rational
economic actor would invest. “Rational economic actors do not ordinarily
conspire to injure themselves.” 39 The assumption that class members
39 Spectators’ Commc’n Network Inc. v. Colonial Country Club, 253 F.3d 215, 220 (5th
Cir. 2001).
38
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knowingly participated in an illegal pyramid scheme rests on the slender reed
that those class members either sought knowingly to become victims or
knowingly to become fraudsters. Critically, in illegal pyramid schemes, it is
mathematically inevitable that participants will become victims or will
victimize others. It goes too far to assume that rational economic incentives
motivate individuals to participate in illegal schemes when faced with these
options. But this is what the majority holds.
Belying the logic of its approach, the majority analogizes participating
in illegal pyramid schemes to gambling. They reason that knowing
participation in an illegal pyramid scheme—an investment opportunity in
which the vast majority of participants are sure to face losses or to defraud
others—is similar to gambling, a recreational (or compulsive) game of chance. 40
Under this analysis, the majority estimates that individuals might choose to
participate in illegal pyramid schemes for the same reasons they would choose
to gamble: to make money, but also as a form of escape, a casual endeavor, or
a hobby. Tellingly, though, the most notable cases in which courts have found
a host of additional reasons explaining class members’ conduct involved
gambling and the consumer purchase of “light” cigarettes. 41 In Poulos v.
40 See, e.g., N.Y. Penal Law § 225.00(2) (“A person engages in gambling when he stakes
or risks something of value upon the outcome of a contest of chance or a future contingent
event not under his control or influence, upon an agreement or understanding that he will
receive something of value in the event of a certain outcome.”); Id. § 225.00(1) (defining the
term “contest of chance” as “any contest, game, gaming scheme or gaming device in which
the outcome depends in a material degree upon an element of chance, notwithstanding that
skill of the contestants may also be a factor therein”).
41 See Poulos v. Caesars World, Inc., 379 F.3d 654, 665–66 (9th Cir. 2004) (“[G]ambling
is not a context in which we can assume that potential class members are always similarly
situated. Gamblers do not share a common universe of knowledge and expectations.”);
McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 225 (2d. Cir. 2008) (“[E]ach plaintiff in this
case could have elected to purchase light cigarettes for any number of reasons, including a
preference for the taste and a feeling that smoking Lights was ‘cool.’”).
39
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Caesars World, Inc., the plaintiff-gamblers alleged that gambling machine
manufacturers and casinos misrepresented electronic gambling devices as
presenting true games of chance (like their mechanical counterparts) when,
instead, computer programming predetermined individual outcomes. 42
Rejecting class certification, the Ninth Circuit held that individuals choose to
gamble for a wide range of reasons, and the fact that a game is truly one of
chance is not implicit in every class members’ choice to gamble. 43 In other
words, because all class members did not necessarily rely on electronic gaming
devices presenting the same odds (or formulating odds in the same manner) as
their mechanical counterparts, an individualized showing of reliance was
required. 44
Here, the plaintiffs’ claims would be similar to those raised in Poulos
only if they had alleged that Ignite misrepresented some intricacy of, for
example, its compensation policy. If that were the case, we could correctly
conclude that an alleged misrepresentation of the inner workings of Ignite
would not warrant an inference of reliance because such information would
likely be irrelevant to most class members’ choice to participate. But that is
not the case here: The plaintiffs allege a much more fundamental
misrepresentation by the defendants, viz., that Ignite is a legal venture when,
instead, it is an illegal pyramid scheme meant to defraud its participants. As
other courts have recognized, the choice to participate in a financial
transaction does not implicate the same range of possible incentives as does
the decision to gamble or to purchase a particular type of cigarette. 45
42 Poulos, 379 F.3d at 659–60.
43 Id. at 665–66.
44 Id.
45 See CGC Holding Co., 773 F.3d at 1092 (“Unlike entering into a serious financial
transaction, many people gamble without any consideration, let alone reliance, on the
40
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Finally, the plaintiffs advance that individuals will not knowingly
participate in illegal pyramid schemes because it requires them to defraud
those who they recruit, often family and friends. The panel majority rejects
this reasoning, suggesting—gratuitously and without record basis—that, like
the gambler, participants in pyramid schemes might act at the expense of their
family and friends. This analogy is strained at best. Unlike “spending money
on gambling,” which, according to the majority, “harms an individual’s family,”
a pyramid schemer’s success in this example depends not on expending his or
her family’s resources, but, instead, on exploiting his or her family members.
III.
I conclude my dissent where I began: By holding that the mere possibility
that a few random revelations by individuals associated with the defendants
can somehow defeat class certification despite our owing great deference to the
district court that decided otherwise, the panel majority gives putative illegal
pyramid schemes a Teflon coating, protecting them not only from class actions
but, as a practical matter, from any suits claiming fraud, whether civil RICO
or otherwise. One of the core reasons that class actions exist is to give large
groups of minor players like the instant plaintiffs a way to have their claims
heard in court. Because, by definition, none of the individual claims can ever
amount to enough dollars to justify separate and individual litigation, the
representations about the likelihood of striking it rich. Nor does every slot player spend any
serious money expecting something (other than a good time, perhaps) in return.”);
McLaughlin, 522 F.3d at 225 n.7 (distinguishing the choice to enter a financial transaction
from making a consumer purchase because “a financial transaction does not usually implicate
the same type or degree of personal idiosyncratic choice as does a consumer purchase”);
Cohen, 303 F.R.D. at 386 (“[U]nlike gambling, purchasing real estate seminars is not the type
of consumer activity that is susceptible to wide-ranging behavioral rationales.”).
41
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elimination of class actions in pyramid schemes insures their total immunity
from otherwise viable civil claims.
For the foregoing reasons, I respectfully DISSENT.
42