A recent decision by the United States Court of Appeals for the Third Circuit reminds us that when we want an arbitration clause to apply in certain situations or to certain parties, we have to build that intention into the plain terms of the contract. In White v. Sunoco, Inc., — F.3d —, No. 16-2808, 2017 WL 3864616 (3d Cir. Dec. 5, 2017), Sunoco promoted the “Sunoco Awards Program,” under which customers who used a Citibank-issued “Sunoco Rewards Card” credit card were supposed to receive a 5-cent per gallon discount on gasoline purchased at Sunoco gas stations. The promotional materials included a document entitled “Terms and Conditions of Offer,” which indicated that Citibank issued the Sunoco Rewards Card and applicants had to meet Citibank’s creditworthiness criteria to obtain the credit card. Continue reading “A Lesson from the Third Circuit on Arbitration Clauses: Say What You Mean”
In a case of first impression in the Third Circuit, Vincent Carieri v. Midland Credit Management, Inc., No. 17-0009 (D.N.J. June 26, 2017), the District Court of New Jersey held that that a debt collector does not have a duty to notify a debtor of potential tax consequences for settling a debt at a discount under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”).
The All-Important Factors for Class “Numerosity”
On September 13, 2016, the United States Court of Appeals for the Third Circuit set forth for the first time a “non-exhaustive list” of factors for a District Court judge to consider when determining whether joinder would be impracticable for purposes of the class action “numerosity” requirement. In re Modafinil Antitrust Litigation, No. 15-3475 (3d Cir. Sept. 13, 2016). These factors include (1) judicial economy, (2) the claimants’ ability and motivation to litigate as joined plaintiffs, (3) the financial resources of class members, (4) the geographic dispersion of class members, (5) the ability to identify future claimants, and (6) whether the claims are for injunctive relief or for damages. Id. at *31-32.
In order to gain class certification, a putative class must satisfy a number of requirements, including that “the class is so numerous that joinder of all members is impracticable.” F.R.C.P. 23(a)(1). The Rule does not define “numerous,” and it is left to the Court to decide on a case-by-case basis whether a particular putative class meets this requirement. Despite the need for individualized factual analysis, a class of 20 or fewer is generally too small and a class of over 40 is usually sufficiently numerous. In re Modafinil at *24-25. While the Court noted that “the number of class members is the starting point of our numerosity analysis,” id. at *25, the Court focused on whether joinder is impracticable. Continue reading “Judicial Economy and Joined Plaintiffs”