BAZARGANFARD v. CLUB 360 LLC (2023)

ORDER RE: PLAINTIFF BARAK GOLAN'S MOTION FOR CLASS CERTIFICATION [103]

The matter before the Court is Plaintiff Barak Golan's (“Plaintiff's”) Motion for Class Certification. (Dkt. No. 103.) The matter is fully briefed. (Dkt. Nos. 106, 107.)¹

I. BACKGROUND

This is a putative class action arising from an allegedly unauthorized $9.99 fee electronically transferred from members’ bank accounts while Defendants’ health clubs were closed due to state and local health orders regarding the COVID-19 pandemic. On October 28, 2022, following various motion practice, Plaintiff filed a Second Amended Complaint (“SAC”) naming Club 360 LLC, ABC Financial Services, LLC, Jehangir Meher, Valley Gym Corp., North Hollywood Fitness LLC, and Van Nuys Fitness Center LLC as Defendants, and asserting the following two causes of action: (1) violations of the Electronic Funds Transfer Act (“EFTA”) by Plaintiff Golan and on behalf of the EFTA class, 15 U.S.C. §§ 1693 et seq.; and (2) violations of the Unfair Competition Law (“UCL”) under the Unfair and Unlawful prongs, Cal. Bus. & Prof. Code §§ 17200 et seq. by both Plaintiffs and the UCL class. (Dkt. No. 66.) On January 26, 2023, the Court granted in part and denied in part Defendants’ motion to dismiss the SAC. (Dkt. No. 86.) On April 4, 2023, the Court granted in part and denied in part Defendants’ Motion for Summary Judgment or in the Alternative Partial Summary Adjudication as follows:

1. The Court granted Defendants’ Motion for Summary Judgment on Plaintiff Golan's EFTA claim against New Defendants based on the $9.99 charge on June 8, 2020, and otherwise denied Defendants’ Motion for Summary Judgment on Plaintiff Golan's EFTA claim; and

2. The Court granted Defendants’ Motion for Summary Judgment on Plaintiff Bazarganfard's UCL claim under the unfair prong.

(Dkt. No. 101.) Accordingly, the sole remaining claim in this action is Plaintiff Golan's EFTA claim (first cause of action) limited to 1) the $9.99 amount charged during the pandemic closures in March 2020 to June 2020 and August 2020 as to Original Defendants Club 360 LLC, Jehangir Meher, and ABA Financial; and 2) the $9.99 amount charged during the club closures in August 2020 as to New Defendants. Plaintiff now moves for class certification of his EFTA claim pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(2) and 23(b)(3).

II. STATEMENT OF THE LAW

Federal Rule of Civil Procedure 23(a) requires that a proposed class satisfy the following four requirements for class certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed. R. Civ. P. 23(a). In addition, the proposed class must satisfy one of the three options under Rule 23(b)(1), (2) or (3). Here, Plaintiff Golan relies on Rule 23(b)(2) and Rule 23(b)(3). Rule 23(b)(2) provides: “A class action may be maintained if Rule 23(a) is satisfied and if ․ the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) allows the Court to certify the class if following elements are satisfied: (1) questions of law or fact common to class members predominate over questions affecting only individual class members (i.e., predominance); and (2) the class action is superior to other available methods of adjudicating the controversy (i.e., superiority). Fed. R. Civ. P. 23(b)(3).

III. DISCUSSION

A. Class and Subclasses

Plaintiff moves for certification of the follow class against Defendants ABC and Meher:

All persons in the United States whose bank accounts were debited on a reoccurring basis by Meher or ABC without obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund transfers in March 14, 2020 to September 2020 for fees at any of the USA Fitness gyms.

(Hereinafter, “the “EFTA Class.”) Plaintiff also seeks to certify a subclass against Defendants Club 360, Meher, and ABC defined as:

All persons in the United States whose bank accounts were debited on a reoccurring basis by Club 360, Meher, or ABC without obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund transfers in March 14, 2020 to September 2020 for fees at Club 360's gyms.

(Hereinafter, the “EFTA Club360 Subclass.”) Plaintiff further seeks to certify a subclass against all Defendants defined as:

All persons in the United States whose bank accounts were debited on a reoccurring basis by Defendants without obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund transfers after June 15, 2020 to September 2020 for fees at any of the USA Fitness gyms.

(Hereinafter, the “EFTA USA Fitness Subclass.”)

B. Federal Rule of Civil Procedure 23(a)

(1) Numerosity

To satisfy the numerosity requirement a proposed class must be “so numerous that joinder of all members is impracticable.” Johnson v. City of Grants Pass, 50 F.4th 787, 803 (9th Cir. 2022) (quoting Fed. R. Civ. P. 23(a)(1)). “ ‘[I]mpracticability’ does not mean ‘impossibility,’ but only the difficulty or inconvenience of joining all members of the class.” Id. (citing Harris v. Palm Springs Alpine Ests., Inc., 329 F.2d 909, 913-14 (9th Cir. 1964)). “There is no specific number of class members required,” but “proposed classes of less than fifteen are too small while classes of more than sixty are sufficiently large.” Id. (citing See Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980); Harik v. Cal. Teachers Ass'n, 326 F.3d 1042, 1051-52 (9th Cir. 2003)); see also Mendoza v. Home Depot, U.S.A., Inc., 2010 WL 424679, at *4 (C.D. Cal. Jan. 21, 2010). Here, Plaintiff submits evidence demonstrating there are approximately 13,023 members of the EFTA Class, 1,500 members of the EFTA Club360 Subclass, and 13,023 members of the EFTA USA Fitness Subclass. (See Wheeler Decl. Ex C at USAFITNESS000088-89; Meher Depo. 28:11-13, 50:21-51:16, 158:24-159:8.)²

Defendants do not dispute the numbers of members in the proposed class and subclasses identified by Plaintiff. Instead, Defendants rely on Pennsylvania Public School Employee's Retirement System v. Morgan Stanley & Co., Inc., 772 F.3d 111 (2nd Cir. 2014), in arguing the Court must consider judicial economy, geographic dispersion, the financial resources of class members, and their ability to sue separately for purposes of analyzing numerosity, and contend these factors demonstrate joinder is not impracticable. However, Defendants do not cite to evidence in support of their arguments, and thus fail to dispute Plaintiff's evidence demonstrating the class and subclasses are “so numerous that joinder of all members is impracticable.” See Fed. R. Civ. P. 23(a)(1); Johnson, 50 F.4th at 803; Harik, 326 F.3d at 1051-52. Accordingly, the Court finds the numerosity requirement is satisfied.

(2) Commonality

“A class satisfies Rule 23’s commonality requirement if there is at least one question of fact or law common to the class.” Johnson, 50 F.4th at 804 (citing Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 (9th Cir. 2013)). “[T]he word ‘question’ in Rule 23(a)(2) is a misnomer: ‘What matters to class certification ․ is not the raising of common ‘questions’—even in droves—but rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.’ ” Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). “A common question ‘must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’ ” Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 663 (9th Cir. 2022) (quoting Dukes, 564 U.S. at 350), cert. denied sub nom. StarKist Co. v. Olean Wholesale Grocery Coop., Inc., On Behalf of Itself & All Others Similarly Situated, 143 S. Ct. 424 (2022). “By contrast, an individual question is one where members of a proposed class will need to present evidence that varies from member to member.” Id. (citing Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)); see also Dukes, 564 U.S. at 350.

Here, Plaintiff Golan contends “[t]he Class and Subclasses present the same questions of law and fact as each was subjected to the same business practice regarding the charging of ‘freeze fees’ during the COVID19 shutdowns and the fundamental question is whether such charges violated EFTA.” Plaintiff argues the commonality requirement is satisfied because “all Class Members signed contracts that are substantially similar and based on the same language,”³ and “[t]here is a common question about whether that form contract authorized Defendants to make automatic electronic fund transfer withdrawals from Plaintiff Golan, EFTA Class members, EFTA Club360 Subclass members, and EFTA USA Fitness Members.”⁴ Plaintiff thus contends the commonality requirement is met because if the answer to the common question is that the contracts did not authorize Defendants to make automatic electronic fund transfer withdrawals from class members for the $9.99 charges at issue, there is a common answer regarding whether such charges made by Defendants violated the EFTA.

Defendants contend “commonality fails because proposed class members did not suffer the same injury.” Defendants argue (without citing to evidence) that Defendants had “express authorization from some members” for the $9.99 fees charged during the pandemic closures. Defendants further speculate (without citing to evidence) that “[w]hile some members may have not authorized the reduced monthly charges and were harmed on balance by the reduced monthly charges and alternative services, other members may have specifically authorized or approved the reduced fees after being given prompt notice.” Defendants thus contend that “[w]hether EFTA applies to each Plaintiff's claim therefore presents an individualized determination that completely dominates the landscape of any alleged class.” However, because Defendants fail to offer evidence of any individuals who agreed to be charged the $9.99 fee during the pandemic closures or who received a refund, the Court does not consider Defendants’ speculative arguments regarding lack of commonality. See True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 932 (9th Cir. 2018) (“[C]ourts do not consider ․ defenses [to class certification] that [a defendant] might advance or for which it has presented no evidence.”); see also Esparza v. SmartPay Leasing, Inc., 2019 WL 2372447, at *4 n.2 (N.D. Cal. June 5, 2019) (“Because courts do not consider defenses that a defendant ‘might advance or for which it has presented no evidence,’ these arguments [by the defendant unsupported by evidence] do not defeat class certification.”).

To the extent Defendants contend class members who agreed to be charged the $9.99 preauthorized Defendants to deduct the fees from their accounts during the pandemic closures,⁵ Defendants incorrectly equate commonality with whether Plaintiff Golan and class members can prevail on the merits of the EFTA claim. In examining the commonality requirement for class certification, “the district court is required to examine the merits of the underlying claim ․, only inasmuch as it must determine whether common questions exist; not to determine whether class members could actually prevail on the merits of their claims.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir. 2011).

Here, Plaintiff Golan demonstrates a common question of whether the form membership agreements entered by class members preauthorized Defendants to electronically transfer funds from their debit cards or bank accounts for the $9.99 fees charged during the pandemic closures is capable of classwide resolution because the “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’ ” Olean Wholesale Grocery Coop., Inc., 31 F.4th at 663 (quoting Dukes, 564 U.S. at 350); see also O'Donovan v. CashCall, Inc., 278 F.R.D. 479, 490 (N.D. Cal. 2011). There is no evidence that an individual question exists for which “members of a proposed class will need to present evidence that varies from member to member.” Olean Wholesale Grocery Coop., Inc., 31 F.4th at 663; see also Esparza, 2019 WL 2372447, at *4 n.2. Accordingly, the Court finds the commonality requirement is satisfied.

(3) Typicality

“Typicality asks whether ‘the claims or defenses of the representative parties are typical’ of the class.” Johnson, 50 F.4th at 805 (quoting Fed. R. Civ. P. 23(a)(3)). “The test of typicality ‘is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.’ ” Ellis v. Costco Wholesale Corp., 657 F.3d at 984 (citing Hanon, 976 F.2d at 508). Typicality “refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought.” Johnson, 50 F.4th at 805 (citations omitted).

Defendants argue Plaintiff Golan's claims are atypical of the class and therefore he cannot satisfy the typicality requirement for class certification because Plaintiff Golan admitted that he consulted with a lawyer in May 2020 and could have cancelled his membership but did not, which raises the defenses of laches, bad faith, and unclean hands. Defendants fail to explain how Plaintiff's consultation with an attorney or the ability to cancel his membership raises the defense of laches, bad faith, and unclean hands, or renders Plaintiff's claims atypical of the class, and do not cite to any authority in support of this contention. Moreover, the Court does not consider Defendants’ contention that Plaintiff Golan “is not typical of class members” because he could have cancelled his membership but did not because Defendants fail to cite to evidence regarding any class members who canceled their membership. See True Health, 896 F.3d at 932.

Defendants also contend Plaintiff's “lack of attendance at Defendant Gyms for over 2 1/212 years spanning before and after the pandemic due to injury make him atypical of other members.” Defendants, however, fail to explain how Plaintiff Golan's failure to visit the club makes his claims atypical of the class where the only claim at issue is the EFTA claim based on Defendants’ failure to obtain Plaintiff Golan and class members’ preauthorization for electronic fund transfers of the $9.99 fees during the pandemic closures.

Defendants also argue Plaintiff Golan cannot satisfy the typicality requirement because he ceased to be a member of Club 360 in April 2022. The fact that Plaintiff Golan is no longer a member of Club 360 precludes him from obtaining class certification for injunctive relief pursuant to Federal Rule of Civil Procedure 23(b)(2) since he fails to demonstrate threat of real or imminent harm in the future and therefore lacks standing for injunctive relief. (See infra.) Therefore, Plaintiff fails to demonstrate his claims are typical of the class as to any claim for injunctive relief.⁶ See Ellis v. Experian Info. Sols., Inc., 2018 WL 3036682, at *5 (N.D. Cal. June 19, 2018); Spacone v. Sanford, L.P., 2018 WL 4139057, at *9 (C.D. Cal. Aug. 9, 2018).

However, the fact that Plaintiff Golan ceased to be a member of Club 360 in April 2022 is irrelevant for purposes of class certification regarding his EFTA claim for monetary relief based on Defendants’ withdrawal of the $9.99 fee from club members without their preauthorization from March 14, 2020 to September 2020 during the pandemic closures.⁷ Here, Plaintiff Golan seeks to represent an EFTA class defined as “[a]ll persons in the United States whose bank accounts were debited on a reoccurring basis by Meher or ABC without obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund transfers in March 14, 2020 to September 2020 for fees at any of the USA Fitness gyms,” and subclasses defined as (1) “[a]ll persons in the United States whose bank accounts were debited on a reoccurring basis by Club 360, Meher, or ABC without obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund transfers in March 14, 2020 to September 2020 for fees at Club 360's gyms”; and (2) “[a]ll persons in the United States whose bank accounts were debited on a reoccurring basis by Defendants without obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund transfers after June 15, 2020 to September 2020 for fees at any of the USA Fitness gyms.” Plaintiff Golan submits evidence that he and putative class members entered into the same or substantially similar membership agreements, that Defendants charged the $9.99 freeze fee during the pandemic closures to all members who did not opt out of the fee, and that fees including the $9.99 fee were charged to customers’ credit card or debited from their debit card or bank account. (See Plaintiff Golan Depo. 13:6-12, 26:1-12, 89:4-12; Wheeler Decl. Exs. C, H; Meher Depo. 41:12-42:15, 43:25-44:7, 50:1-23, 52:6-19, 55:2-21, 55:25-56:5, 77:22-78:18, 102:25-103:18, 115:17-24, 118:1-119:7.)⁸ Since Defendants contend they were preauthorized to electronically transfer the $9.99 fee from customers’ bank accounts or debit card based on the membership agreements, and Plaintiff Golan submits evidence that he and putative class members entered into the same or substantially similar membership agreements, Plaintiff Golan demonstrates his claim for monetary relief for violation for of the EFTA is typical of putative class members. See O'Donovan, 278 F.R.D. at 491; Ellis v. Costco Wholesale Corp., 657 F.3d at 984.

Accordingly, the Court finds (1) Plaintiff Golan fails to demonstrate his claims for class-wide injunctive relief under the EFTA are typical of the class; but (2) Plaintiff Golan satisfies the typicality requirement as to his claims for monetary relief under the EFTA.

(4) Adequacy of Representation

To satisfy the adequacy of representation requirement, Plaintiff must demonstrate “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In determining adequacy, the Court must “resolve two questions: ‘(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?’ ” In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 566 (9th Cir. 2019) (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998), overruled on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)); see also Ellis v. Costco Wholesale Corp., 657 F.3d at 985. The adequacy requirement “serves to uncover conflicts of interest between named parties and the class they seek to represent” as well as the “competency and conflicts of class counsel.” In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d at 566 (citing Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997)). Therefore, the “[a]dequate representation depends on, among other factors, an absence of antagonism between representatives and absentees, and a sharing of interest between representatives and absentees.” Ellis v. Costco Wholesale Corp., 657 F.3d at 985.

Defendants argue Plaintiff Golan's “failure to date to join any other proper representative plaintiff to this purported ‘class action’ ” demonstrates Plaintiff Golan cannot and will not adequately represent the interest of the proposed classes. However, the Court is not aware of a requirement for a named plaintiff to include another class representative in order to demonstrate adequacy, and Defendants cite to no authority demonstrating such a requirement.

Defendants also contend Plaintiff Golan cannot adequately represent the interests of the proposed classes because he admitted that he consulted with a lawyer in May 2020 and could have cancelled his membership but did not, which raises the defenses of laches, bad faith, and unclean hands. Defendants cite to no authority supporting their contention, nor explain how consultation with an attorney or the ability to cancel his membership raises the defense of laches, bad faith, or unclean hands, or renders Plaintiff inadequate to represent the class.

Defendants also argue Plaintiff Golan is an inadequate class representative and cannot represent the interests of members of Club 360 who “visit and rely on Club 360 daily, weekly, monthly, or even just once a year” because those members “necessarily benefited from reduced monthly dues, which allowed Club 360 to continue operating and to reopen quickly under the circumstances,” whereas Plaintiff purportedly testified during his deposition that he had not visited Club 360 since October 2019 when he tore his MCL and never visited Club 360 when it reopened after the pandemic closures.⁹ Whether Plaintiff Golan had not visited the club since October 2019 or after the club reopened is irrelevant for purposes of determining whether Defendants electronically transferred the $9.99 fees from Plaintiff Golan's account without his preauthorization. Moreover, Defendants’ arguments mischaracterize fees at issue as “reduced” monthly membership fees without supporting evidence. The Court previously held there is no evidence that the $9.99 fees charged during the pandemic closures were reduced monthly membership fees authorized to be electronically transferred from Plaintiff Golan's bank account or debit card under the membership agreement (see Dkt. No. 101), and Defendants cite to no evidence demonstrating the fees at issue were reduced monthly membership fees in connection with the instant Motion.

With respect to his claims for monetary relief for violation of the EFTA, Plaintiff Golan demonstrates he will fairly and adequately protect the interests of the class for monetary relief. As to the first question for determining adequacy, Plaintiff Golan declares: “I brought this case to help recover money from Defendants for the fees charged by Defendants while no services or facilities were provided and the Gym at issue was closed ․ To my knowledge, I have no interest that is not in line with the class members, ․ as I seek injunctive relief as well as damages and actual damages in this action for the same type of fees that every Class and Subclasses Member was charged by Defendants.” (Plaintiff Golan Decl. ¶¶ 2, 5.) Plaintiff Golan further declares: “[I] am willing and prepared to put the interest of the class members before my own, seeking a settlement or result that is fair to the class members as a whole. I have communicated regularly with my attorneys throughout this case to ensure that they have the necessary information required to proceed on behalf of the absent class members.” (Id. ¶ 4.) Moreover, Plaintiff's counsel declares: “I have no known conflicts of interest with Plaintiff of any Class or Subclasses Member and am unaware of any conflicts of interest between Plaintiff and any Classes Member.” (Friedman Decl. ¶ 10.) There is no evidence Plaintiff Golan and his counsel have any conflicts of interest with other class members with respect to Plaintiff's claim for monetary relief under the EFTA.

As to the second question, Plaintiff Golan declares he was deposed “at length by Defendants in this matter.” (Plaintiff Golan Decl. ¶ 2.) Plaintiff further declares: “My attorneys have informed me of the responsibilities of a class representative. I understand these responsibilities and am willing and prepared to put the interest of the class members before my own.” (Id. ¶ 4.) As a former club member whose debit card was charged the $9.99 fee by Defendants during the pandemic closures, Plaintiff Golan has an incentive to vigorously pursue recovery of damages for violation of the EFTA on behalf of all class members. See Ellis v. Costco Wholesale Corp., 657 F.3d at 974-75. Moreover, Plaintiff's counsel declares his law firm has extensive experience litigating consumer rights cases including class action lawsuits, has served as plaintiff's counsel in several class actions, has committed tens of thousands of dollars in out of pocket costs to this litigation to date for depositions and filings expenses, “will continue to financially support the efforts of this case through judgment on behalf of the Classes” and “is prepared to fund this class action through judgment” and “regularly expend[s] six figures in our [sic] of pocket costs in order to litigate class actions on behalf of consumers, and ․ will do so here if necessary to achieve a fair class-wide result,” and “will strive to fairly, responsibly, vigorously and adequately represent the putative class members in this action.” (Friedman Decl. ¶¶ 4, 5, 6, 7, 8, 11.) There is no evidence demonstrating Plaintiff Golan and his counsel will not prosecute the action vigorously on behalf of the class with respect to the EFTA claim for monetary relief. See, e.g., O'Donovan, 278 F.R.D. at 492. Therefore, the Court finds the adequacy requirement is satisfied with respect to Plaintiff Golan's claim for monetary relief under the EFTA.

Notwithstanding the above, as to class certification for injunctive and declaratory relief on behalf of the class and subclasses,¹⁰ the Court finds Plaintiff Golan is an inadequate class representative because he lacks standing for injunctive and declaratory relief since he is no longer a member of Club 360 (see infra). See Ellis v. Costco Wholesale Corp., 657 F.3d at 986; Spacone, 2018 WL 4139057, at *10.

* * *

Accordingly, the Court finds Federal Rule of Civil Procedure 23(a)’s numerosity, commonality, typicality, and adequacy of representation requirements for class certification are satisfied with respect to Plaintiff Golan's claim for monetary relief under the EFTA.

C. Federal Rule of Civil Procedure 23(b)

In addition to satisfying Rule 23(a)’s numerosity, commonality, typicality, and adequacy of representation requirements, Plaintiff must also satisfy one of the three options under Rule 23(b)(1), (2) or (3). Plaintiff seeks class certification pursuant to Rule 23(b)(2) and Rule 23(b)(3).

(1) Federal Rule of Civil Procedure 23(b)(2)

Federal Rule of Civil Procedure 23(b)(2) provides: “A class action may be maintained if Rule 23(a) is satisfied and if ․ the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Plaintiff Golan argues certification under Rule 23(b)(2) is proper because “Defendants to this day maintain that their contracts permitted them to unilaterally and automatically withdraw a ‘freeze fee’ from Classes Members,”¹¹ “Club 360 and Meher in particular testified that they did not believe there was anything unfair about charging its members while the Gym was closed and were proud of the choice” (citing Meher Depo. 225:10-25; 231:6-13), and “[a]n order prohibiting Defendants from charging members for fees outside the four corners of the contract would resolve this deficiency.” However, the operative complaint does not assert a claim for injunctive relief under the EFTA, which is the only pending claim in this action. (See SAC, Prayer for Relief.) Therefore, class certification pursuant to Rule 23(b)(2) based on class-wide injunctive relief is improper.

Moreover, Plaintiff Golan fails to demonstrate a real or immediate threat of future harm based on Defendants’ purported continued practice of charging the $9.99 fees without preauthorization because Plaintiff is no longer a member of Defendants’ Club 360 and offers no evidence that he intends to be a member of Defendants’ clubs in the future. See, e.g., Lucas v. Breg, Inc., 212 F. Supp. 3d 950, 963, 972 (S.D. Cal. 2016); Jang v. Asset Campus Hous., Inc., 2016 WL 11755105, at *4 (C.D. Cal. May 4, 2016). Plaintiff therefore lacks standing to seek injunctive relief on behalf of the putative class and subclasses pursuant to Rule 23(b)(2). See Dukes, 564 U.S. at 364-65; Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999); B.C. v. Plumas Unified School Dist., 192 F.3d 1260, 1264 (9th Cir. 1999).¹²

Accordingly, the Court denies Plaintiff Golan's Motion for Class Certification as to any claim for injunctive relief pursuant to Federal Rule of Civil Procedure 23(b)(2).

(2) Federal Rule of Civil Procedure 23(b)(3)

Alternatively, Plaintiff Golan contends class certification is warranted under Federal Rule of Civil Procedure 23(b)(3). The Court may certify a class pursuant to Rule 23(b)(3) if Rule 23(a)’s numerosity, commonality, typicality, and adequacy of representation requirements are met and the following elements are also satisfied: (1) questions of law or fact common to class members predominate over questions affecting only individual class members (i.e., predominance); and (2) the class action is superior to other available methods of adjudicating the controversy (i.e., superiority). See Fed. R. Civ. P. 23(b)(3).

(a) Predominance

“In order for the plaintiff[ ] to carry [his] burden of proving that a common question predominates, [he] must show that the common question relates to a central issue in the plaintiff[’s] claim.” Olean Wholesale Grocery Coop., 31 F.4th at 665 (citing Dukes, 564 U.S. at 349–50). “However, a plaintiff need not rebut every individualized issue that could possibly be raised.” To demand such proof would be akin to demanding proof “that plaintiffs would win at trial.” Van, 61 F.4th at 1066. “Instead, a plaintiff must merely demonstrate by a preponderance of the evidence that a common question of law or fact exists—an issue that is capable of class-wide resolution.” Id. at 1066-67.

“Considering whether ‘questions of law or fact common to class members predominate’ begins, of course, with the elements of the underlying cause of action.” Olean Wholesale Grocery Coop., Inc., 31 F.4th at 665 (quoting Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2014)). Here, Plaintiff Golan's EFTA claim alleges Club 360 closed its health club location in March 2020 and stopped providing services but Defendants continued to debit Plaintiff Golan and putative class members’ accounts without obtaining a written authorization signed or similarly authenticated for preauthorized electronic fund transfers in violation of 907(a) of the EFTA, 15 U.S.C. § 1693e(a) and Section 205.10(b) of Regulation E, 12 C.F.R. § 205.10(b). 15 U.S.C. § 1693e(a) provides:

A preauthorized electronic fund transfer from a consumer's account may be authorized by the consumer only in writing, and a copy of such authorization shall be provided to the consumer when made. A consumer may stop payment of a preauthorized electronic fund transfer by notifying the financial institution orally or in writing at any time up to three business days preceding the scheduled date of such transfer. The financial institution may require written confirmation to be provided to it within fourteen days of an oral notification if, when the oral notification is made, the consumer is advised of such requirement and the address to which such confirmation should be sent.

Section 205.10(b) of Regulation E, 12 C.F.R. § 205.10(b), provides:

Preauthorized electronic fund transfers from a consumer's account may be authorized only by a writing signed or similarly authenticated by the consumer. The person that obtains the authorization shall provide a copy to the consumer.

Plaintiff Golan contends the “principal legal issue” for the class and subclasses “is whether Defendants’ automatic electronic fund transfer withdrawals were not authorized by their form contracts such that they violated EFTA,” and argues this question predominates over any other issues in the litigation. Plaintiff submits deposition testimony from Defendant Meher who testified that Defendants’ clubs were closed during the pandemic from March 2020 to June 2020 and July 2020 to September 2020 (Meher Depo. 57:2-58:2, 75:20-77:8). Moreover, Plaintiff Golan submits evidence demonstrating Defendants used form membership agreements containing the purported EFTA authorization which has not changed since 2014 (see id. at 41:12-42:15, 43:25-44:7, 50:1-23, 52:6-19), and evidence that Defendants charged Plaintiff Golan and all club members who did not cancel their membership during the pandemic closures a $9.99 fee (id. at 77:22-78:18, 102:25-103:18, 55:25-56:5, 115:17-24, 118:-119:7; Wheeler Decl. Ex. C.)¹³ Therefore, the Court finds Plaintiff Golan demonstrates common class issues exist regarding whether the form membership agreements authorized Defendants to electronically transfer the $9.99 freeze fees from class members’ accounts during the pandemic closures for purposes of Plaintiff Golan's claim for monetary relief under the EFTA. See Van, 61 F.4th at 1067.¹⁴

“If the plaintiff demonstrates that class issues exist, the defendant must invoke individualized issues and provide sufficient evidence that the individualized issues bar recovery on at least some claims, thus raising the spectre of class-member-by-class-member adjudication of the issue.” Van, 61 F.4th at 1067 (emphasis added) (citation omitted).¹⁵ Here, Defendants make numerous arguments that the predominance requirement is not satisfied without citing to any evidence. For example, Defendants contend without citing to evidence that they have a “consent defense” which varies based on individual communications and personal relationships between class members and Defendants, “[d]etermining which purported class members have claims for charges for certain months will ․ require individualized inquiries into the activities of each member, the due dates for each member, the communications to and from these members and Defendant Gyms including whether members asked for a refund or cancelled their memberships, and members’ use of additional benefits offered by Defendant Gyms, meaning individual issues will predominate over class issues,” and “some members like Plaintiff Golan had no detrimental reliance and suffered no damages under their circumstances” which would require individualized inquiries. However, Defendants cannot defeat predominance based on speculation regarding individualized issues unsupported by evidence. Id. at 1068 (“We do not permit a defendant to support its invocation of individualized issues with mere speculation” to defeat predominance); True Health, 896 F.3d at 931-32 (While “[a] defendant can produce evidence of a predominance-defeating ․ defense in a variety of ways,” the court “do[es] not consider the ․ defenses that [the defendant] might advance or for which it has presented no evidence.”).

Moreover, as to Defendants’ arguments (unsupported by evidence) regarding individualized damages, “[i]ndividual differences in calculating the amount of damages will not defeat class certification where common issues otherwise predominate.” Castillo v. Bank of Am., NA, 980 F.3d 723, 730 (9th Cir. 2020).¹⁶ As discussed above, Plaintiff demonstrates a common class issue exists as to a central issue in the case regarding the EFTA claim. Furthermore, Plaintiff seeks actual damages equal to the uniform $9.99 fee electronically transferred from class members’ debit cards and bank accounts during the pandemic closures, and statutory damages pursuant to 15 U.S.C. § 1693m(a)(1) and (a)(2)(b). Plaintiff therefore demonstrates damages can be easily calculated based on the uniform $9.99 fees debited from class members’ bank accounts or debit cards during the pandemic closures, and based on statutory damages. Defendants fail to demonstrate individualized proof regarding damages precludes class certification.¹⁷ See Van, 61 F.4th at 1067 (“If the plaintiff demonstrates that class issues exist, the defendant must invoke individualized issues and provide sufficient evidence that the individualized issues bar recovery on at least some claims, thus raising the spectre of class-member-by-class-member adjudication of the issue.”) (emphasis added). Therefore, Defendants’ lack of evidence fails to raise individualized questions that predominate and is not sufficient to defeat predominance. See id. at 1066-68 (defendant's “minimal proffers of evidence supporting” its defense “were insufficient to raise individualized questions that could predominate over the common questions raised by [the plaintiff]” and was “not sufficient to defeat predominance”).¹⁸

Accordingly, the Court finds the predominance requirement is satisfied as to Plaintiff's claim for monetary relief under the EFTA.

(b) Superiority

Federal Rule of Civil Procedure 23(b)(3) provides that a class action may be maintained if the Rule 23(a) requirements are satisfied and “the court finds ․ that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3) further provides that “[t]he matters pertinent to” finding superiority 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. Proc. 23(b)(3). “A consideration of [the four factors set forth in Rule 23(b)(3)] factors requires the court to focus on the efficiency and economy elements of the class action so that cases allowed under [Rule] (b)(3) are those that can be adjudicated most profitably on a representative basis.” Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001), opinion amended on denial of reh'g, 273 F.3d 1266 (9th Cir. 2001); see also Hanlon, 150 F.3d at 1023 (The superiority inquiry “involves a comparative evaluation of alternative mechanisms of dispute resolution.”).

Defendants argue a class action is not the superior method for resolving this dispute “given that the proposed class definitions are overbroad, burdensome, and unmanageable.” Specifically, Defendants contend (without citing to any evidence) that “identification of the California EFTA Subclass, California EFTA Sub-Subclass (i.e., subscribers who did not authorize the reduced monthly dues) will be onerous as the identities of customers that paid and the payment date for each member can only be determined through a burdensome person-by person review of Defendants’ records.” Plaintiff, however, submits deposition testimony from Defendant ABC Financial's 30(b)(6) representative who testified that ABC Financial can differentiate between whether bank accounts or cards were charged and also maintains information regarding customers’ BIN numbers which allow it to determine whether the cards charged were credit or debit cards. (Dozier Depo. 145:7-19, 146:19-25.) Therefore, Defendants’ contention that identification of class members would be overburdensome and unmanageable is unsupported by the record.

Defendants also argue the superiority requirement is not met because “any member that previously requested a refund for reduced membership dues received it, and others can still receive it in the future without this class action,” and “[c]ourts routinely hold that refund programs are a superior remedy for consumers compared to class actions, as they afford consumers an appropriate remedy without extensive and costly litigation.”¹⁹ Defendants argue (without citing to evidence) that “the record shows that Defendant Gyms offered, and have offered throughout the class period, refunds to consumers who did not want to pay the reduced monthly fee during the closures,” and “[s]everal class members did have their monthly fees refunded.” Defendants contend “[c]onsumers who did not request, or were not granted, a refund, could seek relief in individual small claims actions. Such relief would be targeted and would not improperly embroil hundreds of satisfied customers of Defendant Gyms who suffered no injury, in this litigation.” However, Defendants do not cite to evidence demonstrating any class members received a refund. Moreover, whether class members were refunded or can receive a refund in the future is irrelevant to the issue of whether Defendants obtained class members’ preauthorization to electronically transfer the $9.99 fees from their accounts during the pandemic closures as required under the EFTA. Furthermore, the Ninth Circuit has rejected similar arguments that a refund program defeats superiority. See Van, 61 F.4th at 1062 n.4 (“Because a voluntary refund program, such as that undertaken by LuLaRoe, is not a method for ‘adjudicating’ the controversy between LuLaRoe and its customers, it is irrelevant to the superiority analysis under Rule 23(b)(3).”).

Here, an analysis of the four factors for consideration regarding the superiority requirement set forth in Federal Rule of Civil Procedure 23(b)(3) demonstrates a class action is the superior method for adjudication of this case. With respect to the first factor, thousands of separate, individual actions for the $9.99 amount charged would be economically and judicially impracticable. See Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 617 (1997). As to the second factor, there is no evidence of other litigation concerning the $9.99 amount charged by Defendants during the pandemic closures already begun by or against class members. With respect to the third factor, Plaintiff Golan submits evidence demonstrating there are approximately 13,023 class members in the EFTA Class, approximately 1,500 members of the EFTA Club360 Subclass, and approximately 13,023 members of the EFTA USA Fitness Subclass who were charged the $9.99 fees by Defendants during the pandemic closures. Each of the defendant clubs are located in this district (see SAC ¶¶ 8-11). Therefore, the concentration of litigation regarding the $9.99 amount club members charged by Defendants during the pandemic closures without preauthorization favors a class action in this forum. As to the fourth factor, there is nothing in the record demonstrating likely difficulties in managing the class action. Plaintiff identifies a common question regarding whether Defendants charged the $9.99 fee during the pandemic closures without preauthorization, and Plaintiff offers evidence (1) of a common form membership agreement used by Defendants; (2) Defendants charged the $9.99 fee to all customers who did not opt out during the pandemic closures; and (3) Defendant ABC Financial maintains information regarding the payment methods made by class members.

Therefore, the Court finds classwide adjudication of the EFTA claim for monetary relief is superior to other means of adjudicating this case. See Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1176 (9th Cir. 2010).

* * *

Accordingly, Plaintiff Golan demonstrates the requirements for class certification are satisfied under Federal Rules of Civil Procedure 23(a) and 23(b)(3) as to his EFTA claim for monetary relief.

D. Appointment of Plaintiff Golan as Class Representative

Plaintiff Golan also seeks to be appointed as class representative of the class and subclasses. For the reasons discussed above, Plaintiff Golan demonstrates he is an adequate class representative as to the class and subclasses’ claims for monetary relief under the EFTA. Therefore, the Court appoints Plaintiff Golan as the representative of the class and subclasses.

E. Appointment of Plaintiff's Attorneys as Class Counsel

Plaintiff also seeks appointment of Plaintiff's counsel the Law Offices of Todd M. Friedman, P.C., as class counsel. For the reasons discussed above, Plaintiff demonstrates Plaintiff's counsel is adequate to represent the class as to his claims for monetary relief under the EFTA. Therefore, the Court appoints Plaintiff's counsel the Law Offices of Todd M. Friedman, P.C. as class counsel.

IV. CONCLUSION

For the reasons discussed above, the Court GRANTS Plaintiff Golan's Motion for Class Certification as to his EFTA claim for monetary relief; and DENIES the Motion for Class Certification as to any claim for injunctive relief pursuant to Federal Rule of Civil Procedure 23(b)(2).

IT IS SO ORDERED.

FOOTNOTES

1.   The Court has reviewed and considered Defendants’ Notice of Supplemental Authority (Dkt. No. 112), and Trevino v. Golden State FC LLC, 2023 WL 3687377 (E.D. Cal. May 26, 2023), identified by Defendants at the hearing on the matter.

2.   Plaintiff also demonstrates the class and subclass members’ identities and contact information are readily determinable based on records maintained by Defendant ABC Financial. (See Dozier Depo. 18:8-10, 24:22-25:21, 145:7-19, 146:19-148:4.)

3.   Plaintiff offers deposition testimony from Defendant Meher who testified that Club360 and Meher used prior form agreements for membership agreements for the club when they became owner and manager of the club in 2014, and made less than five modifications to the form agreement such as modifications regarding liability and assumption of risk and the date for proceeding the enhancement fee (Meher Depo. 41:12-42:15).

4.   Defendants contend the membership agreements preauthorized Defendants to electronically transfer the $9.99 fees from customers’ accounts during the pandemic closures. (See Meher Decl. ¶ 4 (“Defendant Gyms’ membership agreements do not provide that preauthorized payments stop if there are government-mandated closures, or any other circumstance where Plaintiffs are unable to use the facilities. Plaintiff's membership agreements also expressly granted the Club the right to change the type or quantity of classes or equipment without credit or compensation.”); Meher Depo. 85:19-86:9; 88:13-89:12; 90:7-14; 108:3-22 (testifying Defendants are allowed to charge a reduced membership fee for a temporary modification of services under the membership agreement, which in the case of the pandemic closures was a shutdown by state order).)

5.   The Court previously held Plaintiff Golan's membership agreement did not preauthorize Defendants to deduct the $9.99 amount from his account during the pandemic closures. (Dkt. No. 101.) Here, Plaintiff Golan submits evidence that the same or substantially similar form membership agreement was used for all USA Fitness members (see Meher Depo. 41:12-42:15). Defendants fail to offer evidence of a different provision in any class member's membership agreement which preauthorized Defendants to deduct the $9.99 fees during the pandemic closures nor offer evidence of any class member who actually preauthorized Defendants to deduct the $9.99 fees from their accounts during the pandemic closures.

6.   Moreover, although Plaintiff Golan argues he seeks injunctive relief on behalf of the class, the operative complaint only seeks equitable and injunctive relief pursuant to Cal. Bus. & Prof. Code § 17203. (See SAC, Prayer for Relief.) The SAC does not seek injunctive or equitable relief under the EFTA (see id.), which is the sole remaining claim in this action. Therefore, Plaintiff Golan cannot pursue an injunctive relief claim under the EFTA on behalf of the class since he did not assert such a claim in the SAC.

7.   15 U.S.C. § 1693m provides that “any person who fails to comply with any provision of this subchapter with respect to any consumer, ․ is liable to such consumer in an amount equal to the sum of--(1) any actual damage sustained by such consumer as a result of such failure;(2)(A) in the case of an individual action, an amount not less than $100 nor greater than $1,000; or(B) in the case of a class action, such amount as the court may allow, except that (i) as to each member of the class no minimum recovery shall be applicable, and (ii) the total recovery under this subparagraph in any class action or series of class actions arising out of the same failure to comply by the same person shall not be more than the lesser of $500,000 or 1 per centum of the net worth of the defendant; and(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court.In the SAC, which is the operative complaint in this action, Plaintiff Golan seeks statutory damages of $1,000.00, per EFTA Class Member, pursuant to § 916(a)(2)(A) of the EFTA; actual damages; restitution of the funds improperly obtained by Defendants; any and all statutory enhanced damages; and all reasonable and necessary attorneys’ fees and costs provided by statute, common law or the Court's inherent power. (See SAC, Prayer for Relief.)

8.   Fox v. Saginaw Cnty., Michigan, 67 F.4th 284 (6th Cir. 2023), identified in Defendants’ Notice of Supplemental Authority (Dkt. No. 112), addressed a circuit split between the Seventh Circuit and Second Circuit regarding the jurisdictional link doctrine as to whether named plaintiff may bring a class action against defendants who did not injure them if the class members would have standing and if the named plaintiffs meet Rule 23’s requirements for class certification. Fox is a Sixth Circuit decision which is not binding on this Court. Moreover, here, the defendant gyms are each owned and managed by Defendant Meher under the USA Fitness name, the defendant gyms used the same USA Fitness website, the defendant gyms adopted a uniform policy to charge members the $9.99 fee during the pandemic closures, the same notices and emails regarding Defendants’ decision to charge the $9.99 fees during the pandemic closures were sent to all active members of the defendant gyms and posted on the USA Fitness website. (See Meher Decl. ¶¶ 1-5; Wheeler Decl. Exs. B, C; Meher Depo. 158:24-159:8, 174:8-12; see also SAC ¶¶ 14, 18 (alleging defendant gyms are a single enterprise and alter egos of one another owned and operated by Defendant Meher “under a common scheme to overcharge consumers, and the policies and procedures at issue in the instant litigation were all implemented by the ownership in the same manner across the single enterprise”).)

9.   Defendants do not cite to any evidence or identify any deposition testimony by Plaintiff Golan in support of this contention. However, having reviewed the excerpts from Plaintiff Golan's deposition testimony submitted by Defendants, the Court notes Plaintiff Golan testified at his deposition that the last time he “set foot” in the club was in October 2019 and he did not use the club between October 2019 and March 2020 because he tore his MCL at the gym. (See Plaintiff Golan Depo. 34:25-35:14.)

10.   As discussed above, although Plaintiff Golan argues he seeks injunctive relief on behalf of the class, the sole remaining claim in this action is Plaintiff Golan's EFTA claim and the operative complaint does not assert a claim for injunctive relief under the EFTA. (See SAC, Prayer for Relief.) Therefore, Plaintiff Golan cannot pursue an injunctive relief claim under the EFTA on behalf of the class.

11.   Defendants’ theory is that they were authorized to withdraw the $9.99 fees from customers’ accounts during the pandemic closures based on the membership agreements. (See also Meher Decl. ¶ 4 (declaring “Defendant Gyms’ membership agreements do not provide that preauthorized payments stop if there are government-mandated closures, or any other circumstance where Plaintiffs are unable to use the facilities. Plaintiff's membership agreements also expressly granted the Club the right to change the type or quantity of classes or equipment without credit or compensation.”); Meher Depo. 85:19-86:9; 88:13-89:12; 90:7-14; 108:3-22 (testifying Defendants are allowed to charge a reduced membership fee for a temporary modification of services under the membership agreement, which in the case of the pandemic closures was a shutdown by state order).)

12.   See also Lucas, 212 F. Supp. 3d at 972; Jones v. ConAgra Foods, Inc., 2014 WL 2702726, at *12-*13 (N.D. Cal. June 13, 2014); Cunha v. IntelliCheck, LLC, 254 F. Supp. 3d 1124, 1138 (N.D. Cal. 2017).

13.   Trevino v. Golden State FC LLC, 2023 WL 3687377 (E.D. Cal. May 26, 2023), cited by Defendants at the hearing on this matter, is inapposite. Unlike in Trevino wherein the district court found no evidence of a uniform policy or procedure as to certain proposed classes for certification, here there is evidence of a common membership agreement and uniform practice of charging all members who did not cancel their membership the $9.99 fee during the pandemic closures.

14.   Cf. O'Donovan, 278 F.R.D. at 493-94 (finding individual issues predominated with respect to the plaintiffs’ EFTA claim). Unlike in O'Donovan, here Defendants do not identify any evidence in support of their predominance argument. Moreover, Plaintiff Golan submits evidence that he and putative class members all entered the same or substantially similar form agreement based upon which Defendants contend contained the preauthorization for electronic transfer of the $9.99 freeze fees, the same $9.99 fees at issue were charged to all class members during the pandemic closures who did not opt out, and Defendant ABC Financial maintains records regarding payment methods and payments by club members.

15.   See also Van, 61 F.4th at 1067 (“If the defendant provides evidence that a valid defense—affirmative or otherwise—will bar recovery on some claims, then the district court must determine, based on the particular facts of the case, ‘whether individualized questions ․ ‘will overwhelm common ones and render class certification inappropriate under Rule 23(b)(3).’ ’ ”) (emphasis added) (citing Olean Wholesale Grocery Coop., 31 F.4th at 669; Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 276 (2014)).

16.   Defendants also argue individual issues related to damages “cause typicality to be lacking.” However, since Defendants fail to cite to any evidence in support of these purported individual issues, the Court does not consider such speculative arguments made by Defendants. See Van, 61 F.4th at 1068; True Health, 896 F.3d at 931-32.

17.   Defendants cite to Chowning v. Kohl's Dep't Stores, Inc., 2016 WL 1072129, at *7 (C.D. Cal. Mar. 15, 2016). However, unlike in Chowning, here Plaintiff demonstrates damages can be easily calculated on a class-wide basis. As to Defendants’ argument (without supporting evidence) that individualized issues predominate because some class members received refunds, the Ninth Circuit has held “the temporary loss of use of one's money constitutes an injury” for purposes of Article III standing, and found such injury does not create individualized issues that predominate over class issues. See Van, 61 F.4th at 1064 (citation omitted) (noting temporary loss of money constitutes an injury and holding “the presence of class members who suffered only a fraction of a cent of harm does not create an individualized issue that could predominate over class issues”).

18.   Cf. Van, 61 F.4th at 1069 (finding “LuLaRoe invoked an individualized issue—that retailer discounts left some class members uninjured—and provided evidence that at least some class members lack meritorious claims because of this issue, thus summoning the spectre of class-member-by-class-member adjudication,” and vacating the district court's order granting class certification and remanding for the district court to re-assess whether the plaintiff met her burden of proving by a preponderance of the evidence that common issues predominate over questions affecting only individual members) (emphasis added) (internal citations omitted); Trevino v. Golden State FC LLC, 2023 WL 3687377 (E.D. Cal. May 26, 2023) (finding individualized issues predominated over common questions as to certain putative classes based on evidence offered by Amazon). Unlike in Van and Trevino, here, Defendants do not cite to any evidence demonstrating individualized issues exist.

19.   The cases cited by Defendants in support of their argument regarding refunds are inapposite because none of them involved a claim under the EFTA. See Webb v. Carter's Inc., 272 F.R.D. 489 (C.D. Cal. 2011) (addressing refund program in case asserting claims for violation of the UCL, breach of implied warranties, breach of the Magnuson–Moss Act, violation of the California Consumers Legal Remedies Act, violation of California's Fair Advertising Law, and fraudulent concealment); In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 214 F.R.D. 614 (W.D. Wash. 2003) (addressing refunds in products liability case for unjust enrichment and breach of implied warranty).

Consuelo B. Marshall, UNITED STATES DISTRICT JUDGE