COX v. PORSCHE FINANCIAL SERVICES INC (2020)

ORDER

THIS CAUSE comes before the Court on Plaintiff's Motion for Reconsideration of Partial Summary Judgment as to the Voluntary Payment Doctrine (the “Motion for Reconsideration”), [ECF No. 304], and Defendant's Motion to Decertify Class Action (the “Motion to Decertify”), [ECF No. 277], (collectively, the “Motions”). The Court has reviewed the Motions and the record and is otherwise fully advised. For the reasons that follow, the Motion for Reconsideration is granted and the Motion to Decertify is granted in part and denied in part.

I. BACKGROUND

This Order assumes familiarity with the case and the Court's earlier orders, and consequently contains a condensed version of the facts and procedural history. On August 8, 2016, Plaintiff Steven Michael Cox brought this class action complaint alleging several federal and state claims against Defendants (1) Porsche Cars North America, Inc.; (2) Porsche Leasing Ltd.; and (3) Porsche Financial Services, Inc., stemming from a 2015 lease transaction that Plaintiff completed with a non-party dealer, Porsche of Fort Myers (the “Dealer”). [ECF No. 1].

The Dealer agreed to give Plaintiff $25,000 for his 2015 Hyundai Genesis and to apply that value to Plaintiff's lease transaction for a 2015 Porsche Cayman. In this action, Plaintiff chiefly contends that he was overcharged for interest and taxes paid on the lease because the Dealer failed to apply his trade-in value as a Capitalized Cost Reduction (“CCR”). A CCR represents the amount of any Net Trade-In Allowance (“NTIA”), rebate, noncash credit, or cash that a customer pays that reduces the Gross Capitalized Cost (“GCC”). The NTIA represents the gross agreed-upon value of a trade-in less the balance owed on the trade-in. Though the Dealer assigned Plaintiff's trade-in a gross value of $25,000, the NTIA section of his lease stated “N/A” (i.e., “not applicable”). The line on Plaintiff's lease that was designated for the CCR also stated “N/A” to mean the same. Plaintiff alleges that by failing to reduce his capitalized cost by his $25,000 trade-in allowance, Defendants charged him an extra $3,970.93 in interest and taxes.

On April 3, 2018, the Court referred the case to Magistrate Judge Lauren F. Louis for a ruling on all pretrial, nondispositve matters, and for a report and recommendation on any dispositive matters. [ECF No. 148]. On October 19, 2018, the Court affirmed and adopted Judge Louis' Report and Recommendation, [ECF No. 190], on Defendants' Joint Motion for Summary Judgment. [ECF No. 202]. As a result, four counts remain against sole Defendant, Porsche Financial Services, Inc. (“Defendant”): (1) violation of the Consumer Leasing Act (“CLA”) and Regulation M; (2) per se violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) based on the CLA and Regulation M violation; (3) FDUTPA violation based on the Dealer's failure to disclose how the NTIA was applied; and (4) FDUTPA violation based on the Dealer's failure to apply the NTIA to the CCR. Regarding the last count, Plaintiff has asserted during the course of this litigation that Defendant violated FDUTPA by reviewing, accepting, and approving lease agreements that failed to apply the NTIA to the CCR.

On February 14, 2019, the Court also affirmed and adopted Judge Louis' Report and Recommendation, [ECF No. 203], on Plaintiff's Motion to Certify Class and certified two classes under Federal Rule of Civil Procedure 23(b)(2) and (b)(3):

1. Plaintiff's Inaccurate Disclosure Class

Persons who leased a Porsche vehicle in Florida through the standard form Motor Vehicle Lease Agreement from Defendants and, as part of the transaction, traded in a vehicle with a positive monetary value that was not assigned a positive Net Trade-in Allowance. This Class only covers individuals whose leases either are outstanding or were terminated within four years before the filing of this action.

2. Plaintiff's Overcharge Class

Persons who leased a Porsche vehicle in Florida through the standard form Motor Vehicle Lease Agreement from Defendants and, as part of the transaction, traded in a vehicle with a positive monetary value that was not properly credited as a Capitalized Cost Reduction. This Class only covers individuals whose leases either are outstanding or were terminated within four years before the filing of this action.

[ECF No. 216 at 2]. Defendant now asks the Court to decertify (1) the Inaccurate Disclosure Class under Rule 23(b)(2) and (b)(3) because it does not include enough members to justify class treatment; and (2) the Overcharge Class under Rule 23(b)(3) because individualized issues predominate and under Rule 23(b)(2) because the Class members lack Article III standing for injunctive relief. [ECF No. 277]. Plaintiff does not oppose decertification of the Inaccurate Disclosure Class; therefore, the Court grants the motion in that respect. For the reasons explained below, the Court also finds that decertification is warranted with respect to the Overcharge Class under Rule 23(b)(2) but not under Rule 23(b)(3).

On February 19, 2020, the Court granted in part and denied in part the parties' cross-motions for partial summary judgment (the “Summary Judgment Order”). [ECF No. 267]. In relevant part, the Court denied Plaintiff summary judgment as to Defendant's affirmative defense based on the common-law voluntary payment doctrine because Plaintiff had “provided no evidence that the circumstances ha[d] changed since the Court affirmed Judge Louis' Report, which found that ‘there is a genuine dispute whether Plaintiff entered into the lease deal with knowledge of the factual circumstances.’ ” Id. at 13 (citation omitted).

In his instant Motion for Reconsideration, Plaintiff asks the Court to reconsider the Summary Judgment Order as it relates to Defendant's voluntary payment doctrine affirmative defense because (1) the defense does not apply to FDUTPA claims; and (2) even if it did, Defendant failed to meet its burden to demonstrate that the defense applies to Plaintiff's claims. [ECF No. 304]. Upon reconsideration of the Summary Judgment Order, and for the reasons discussed below, the Court agrees with Plaintiff's latter argument and finds that summary judgment is warranted for Plaintiff as to Defendant's voluntary payment doctrine defense.

II. DISCUSSION

A. Motion for Reconsideration

Courts have delineated three major grounds justifying reconsideration under Federal Rule of Civil Procedure 59(e): “(1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.” Kottler v. Gulf Coast Collection Bureau, Inc., No. 19-CV-61190, 2020 WL 3064769, at *1 (S.D. Fla. June 9, 2020) (citation omitted). The thrust of Plaintiff's argument is that the Court clearly erred in its Summary Judgment Order by failing to decide whether a defendant can assert the common-law voluntary payment doctrine as an affirmative defense to FDUTPA claims. While Plaintiff bases his argument on the fact that no court has affirmatively concluded that a defendant may do so, he presents no authority affirmatively concluding that a defendant may not. To date, the Court found no authority that definitively spoke on the issue.

Regardless, the Court need not make “unnecessary state law guesses” in light of the record before it. See Pogue v. Oglethorpe Power Corp., 82 F.3d 1012, 1017 (11th Cir. 1996) (certifying unsettled state-law question) (citation omitted). Even if the voluntary payment doctrine defense applies to FDUTPA claims, Defendant has failed to meet its burden at this stage to demonstrate that the defense applies here. The Court, therefore, corrects its prior finding that genuine issues of material fact remain as to Defendant's voluntary payment doctrine defense and instead grants summary judgment to Plaintiff on the issue. The Court's previous decision, which was based on Judge Louis' Report, was clearly erroneous insofar as Judge Louis concluded that summary judgment was not warranted in favor of Defendant as to the defense, but she did not appear to consider whether summary judgment was warranted in favor of Plaintiff. Thus, the Court now addresses the issue under the correct burdens in order to preclude a clear error of law.

The voluntary payment doctrine provides that “money voluntarily paid under a claim of right, with full knowledge of the material facts, cannot be recovered merely because the paying party, at the time of the payment, mistook the law as to his liability to pay.” Schojan v. Papa John's Int'l Inc., 34 F. Supp. 3d 1206, 1210 (M.D. Fla. 2014) (citing Hassen v. Mediaone of Greater Fla., Inc., 751 So. 2d 1289, 1290 (Fla. 1st DCA 2000)). The party asserting the defense must “show that the person who made the payment had full knowledge of the relevant facts, including allegedly wrongful conduct[.]” Carrero v. LVNV Funding, LLC, No. 11-62439-CIV, 2014 WL 6433214, at *6 (S.D. Fla. Oct. 27, 2014) (citation omitted) (emphasis added); see also Ruiz v. Brink's Home Sec., Inc., 777 So. 2d 1062, 1064 (Fla. 2d DCA 2001) (concluding that the complaint did not show on its face that the voluntary payment doctrine applied because it did not allege that the plaintiffs voluntarily paid the property tax that the defendant charged them knowing that the amounts that they paid exceeded the tax actually charged to the defendant).

In the class context, a defendant must demonstrate “full knowledge by Plaintiff[ ] and members of the Class of material facts making their actions knowing and voluntary.” In re Checking Account Overdraft Litig., 281 F.R.D. 667, 678–79 (S.D. Fla. 2012). “[T]o the extent the voluntary payment defense could logically have any application to FDUTPA claims, it would at a minimum require affirmative proof that the Plaintiff[ ] had knowledge of the facts, including the true purpose and illegal nature of the [charge] at the time it was paid.” Chrzanowski v. S.D.S. Autos, Inc, No. 16-2005-CA-005434, 2006 WL 6235026 (Fla. 4th DCA Sept. 25, 2006) (citation and internal quotation marks omitted) (emphasis added).

Defendant asserts the voluntary payment doctrine as an affirmative defense to Plaintiff's FDUTPA claims and, therefore, bears the burden of proving the defense at trial by a preponderance of evidence. See Thorsteinsson v. M/V Drangur, 891 F.2d 1547, 1550–51 (11th Cir. 1990) (citations omitted). As the nonmoving party at summary judgment, Defendant also bears the burden of proving its affirmative defense once Plaintiff/movant makes a sufficient showing to support his motion. In United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Ctys. in State of Ala., the Eleventh Circuit outlined a nonmoving party's burden at summary judgment:

When the nonmoving party has the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar material negating the opponent's claim, ․ Instead, the moving party simply may show[ ]—that is, point[ ] out to the district court—that there is an absence of evidence to support the nonmoving party's case. Alternatively, the moving party may support its motion for summary judgment with affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial. If the moving party shows the absence of a triable issue of fact by either method, the burden on summary judgment shifts to the nonmoving party, who must show that a genuine issue remains for trial. If the nonmoving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, the moving party is entitled to summary judgment.

941 F.2d 1428, 1437–38 (11th Cir. 1991) (citations and internal quotation marks omitted) (alterations in original) (emphasis in original). So, if the burden shifts to the nonmoving party, it “must rely on or submit record evidence in support of [its] purported affirmative defense[ ] to create a genuine issue of material fact preventing the entry of summary judgment.” Meth Lab Cleanup, LLC v. Spaulding Decon, LLC, No. 8:14-CV-3129-T-30TBM, 2015 WL 4496193, at *7 (M.D. Fla. July 23, 2015) (citation omitted).

A defendant “must offer more than a mere scintilla of evidence[,]” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir. 2015) (citation omitted), and “[m]ere conclusory allegations and assertions will not suffice[,]” Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (citations omitted). The only question on summary judgment is whether there is enough evidence upon which “a reasonable jury could return a verdict for the nonmoving party.” Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1303 (11th Cir. 2018) (citation omitted). If a defendant fails to make such a showing with regard to an affirmative defense, courts may grant summary judgment to the plaintiff on that issue. See, e.g., Riberglass, Inc. v. Techni–Glass Indus., Inc., 804 F.2d 1577, 1580 (11th Cir. 1986) (affirming partial summary judgment for plaintiff where defendant failed to produce evidence of affirmative defense), reh'g granted and rev'd on other grounds, 811 F.2d 565 (11th Cir. 1987).

Here, Plaintiff met his burden at summary judgment by showing that there is an absence of evidence to support Defendant's voluntary payment doctrine defense. See [ECF No. 241 at 15–16 (“Plaintiff paid to rent his own trade-in equity, and then be taxed on it, precisely because he was defrauded—not because he understood the consequences of his lease terms. [Defendant] has no facts to the contrary[.]”)]. Thus, the burden shifted back to Defendant to show that a genuine issue remains for trial as to this defense. Based on at least one Florida court's interpretation of how this defense could apply to FDUTPA claims, this means that Defendant must demonstrate that a reasonable jury could find that Plaintiff knew the “true purpose and illegal nature” of his lease payment at the time he paid it. See Chrzanowski, 2006 WL 6235026. In other words, because Plaintiff alleges that Defendant violated FDUTPA by reviewing, accepting, and approving leases that failed to apply the NTIA to the CCR, Defendant must proffer evidence for a reasonable jury to find that Plaintiff knew that his trade-in credit would not be applied to the CCR and thus would not reduce his GCC.

Defendant has failed to do so. In his statement of facts in support of his Motion for Partial Summary Judgment, Plaintiff cites to excerpts from his deposition demonstrating that he did not know at the time of his lease transaction that his $25,000 trade-in credit would not be applied to his CCR and would thus result in a higher payment. See, e.g., [ECF No. 241-2 ¶ 19 (citing ECF No. 241-8 at 148:10–14 (“․ I was convinced that the terms were right, that my trade-in was applied, and that the gross price was right. So I assumed the math was correct, and I accepted the lease.”) & at 97:6–8 (“And at that point in time [i.e., weeks after Plaintiff signed the lease agreement] I didn't realize that I did not get a capitalized cost reduction.”))]. The only record evidence on which Defendant relies to dispute this is Plaintiff's lease agreement, which states “N/A” on the CCR line. See [ECF No. 245 ¶ 19 (citing ECF No. 244-14)].¹

That Plaintiff saw the “N/A” entry for the CCR on his lease (which is not in dispute) is not enough for a reasonable jury to find that it is more likely than not that Plaintiff had “full knowledge” of Defendant's “wrongful conduct,” Carrero, 2014 WL 6433214, at *6, or of the “true purpose and illegal nature” of his lease payment, Chrzanowski, 2006 WL 6235026. In other words, Defendant's evidence is not enough for a reasonable jury to find that Plaintiff knew that Defendant approved a lease that improperly failed to apply his trade-in credit to reduce the capitalized cost of his leased vehicle and that the failure to do so would result in Plaintiff paying excessive interest and taxes on his lease transaction.

In its “Additional Material Facts,” Defendant asserts that “Plaintiff knew that the $25,000 would not be applied to reduce the capitalized cost of the lease and would not be used to lower the rent charge or the monthly payment.” [ECF No. 245 at 9 ¶ 1 (citing ECF No. 244-3 at 165:8–11)]. But the excerpt from Plaintiff's deposition that Defendant cites does not support that fact. Rather, that portion of Plaintiff's deposition merely demonstrates that nobody told Plaintiff that his trade-in credit would be used to reduce the capitalized cost of his leased vehicle.²

Defendant argues that this “evidence just as easily supports the inference that Plaintiff knew how $25,000 was being applied (because he asked and was told as much)[.]” [ECF No. 244 at 23–24]. But construing this evidence to mean that Plaintiff knew he was being charged excessive interest and taxes on his lease transaction is not a “justifiable inference[ ]” that must be drawn in favor of Defendant at this stage. See Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987). Accordingly, the Court grants summary judgment for Plaintiff as to Defendant's voluntary payment doctrine defense and vacates the portion of its Summary Judgment Order stating otherwise.

B. Motion to Decertify with Respect to the Overcharge Class

Defendant argues that decertification of the Overcharge Class is warranted under Rule 23(b)(3) for three reasons. First, Defendant maintains that individual issues predominate over any common questions of law or fact. Next, Defendant contends that Plaintiff's claims are not typical of the claims of the Class because 75 of the 80 Class members' lease agreements do not state “N/A” in the NTIA box. Finally, and for that same reason, Defendant asserts that Plaintiff cannot adequately represent the Class.³ Additionally, Defendant argues that the Overcharge Class should be decertified under Rule 23(b)(2) because Plaintiff lacks constitutional standing to seek injunctive relief. The Court addresses each argument in turn and finds that decertification is warranted only as to Rule 23(b)(2).

“It is well settled that questions concerning class certification are left to the sound discretion of the district court.” Freeman v. Motor Convoy, Inc., 700 F.2d 1339, 1347 (11th Cir. 1983) (citations omitted). The Court “retains the ability, and perhaps even a duty, to alter or amend a certification decision, ․ to correct any errors in the certification order or to recognize the importance of new facts.” Shin v. Cobb Cty. Bd. of Educ., 248 F.3d 1061, 1064 (11th Cir. 2001). Here, Defendant fails to present any factual developments in the post-discovery record that reveal material distinctions between Class members that would justify disturbing the Court's prior Order certifying the Overcharge Class under Rule 23(b)(3). Rather, Defendant presents the same facts and argument that Judge Louis and this Court already examined and rejected. However, in an abundance of caution, and recognizing that Plaintiff maintains his “burden of proof that class certification was proper[,]” Ezell v. Mobile Hous. Bd., 709 F.2d 1376, 1380 (11th Cir. 1983), the Court briefly addresses Defendant's arguments.

Defendant argues that “it is difficult to discern a single common question in the case” and that “[e]ven if one could be found ․ individual issues would nevertheless predominate.” [ECF No. 277 at 7]. Not so. It is true that the Class members' individual interactions with various dealers could be relevant to determining whether Defendant's conduct would be “likely to deceive a consumer acting reasonably in the same circumstances” and thus was deceptive under FDUTPA. See Cold Stone Creamery, Inc. v. Lenora Foods I, LLC, 332 F. App'x 565, 567 (11th Cir. 2009) (citation omitted). But this “subjective element does not necessarily create individualized issues so as to defeat class action” where a defendant “made the same misrepresentations to the entire class[.]” See Waste Pro USA v. Vision Constr. ENT, Inc., 282 So. 3d 911, 917–20 (Fla. 1st DCA 2019) (affirming class certification for FDUTPA claims), reh'g denied (Nov. 7, 2019).

Here, Plaintiff's legal theory is that Defendant's review, acceptance, and approval of lease agreements that failed to apply the value of a lessee's trade-in vehicle (i.e., the NTIA) to the CCR is deceptive and unfair in violation of FDUTPA. A determination of whether Defendant's conduct is deceptive or unfair will “have a direct impact on every [C]lass member's effort to establish liability” and thus predominates over any individualized issues. See Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1274 (11th Cir. 2019) (citation omitted). Judge Louis held the same in her Report, which the Court affirmed and adopted in full. As Defendant has failed to present any new facts that would undermine that determination, the Court again finds that common issues predominate.

Defendant's arguments related to typicality and adequacy of representation also fail. Rule 23's typicality requirement “primarily directs the district court to focus on whether named representatives' claims have the same essential characteristics as the claims of the class at large. Moreover, the typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiffs and those of other class members. Thus, courts have found that a strong similarity of legal theories will satisfy the typicality requirement despite substantial factual differences.” Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985) (citations and internal quotation marks omitted).

Here, the basis of the claims of Plaintiff and the Overcharge Class against Defendant, discussed supra, are identical. That 75 out of 80 Class members did not have the “N/A” entry that Plaintiff had in his NTIA box is a “factual difference[ ]” that does not negate the “strong similarity of legal theories” present. See id. (citations omitted). Regarding Rule 23's adequate representation requirement, discovery has not revealed “any substantial conflicts of interest” between Plaintiff and the Class nor any evidence demonstrating that Plaintiff will not “adequately prosecute the action.” See Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (citation omitted). Thus, the Overcharge Class shall remain certified under Rule 23(b)(3).

However, the Court finds that decertification under Rule 23(b)(2) is warranted because Plaintiff has not adequately alleged constitutional standing under Article III.⁴ Although FDUTPA “allows a plaintiff to pursue injunctive relief even where the individual plaintiff will not benefit from an injunction, it cannot supplant Constitutional standing requirements. Article III of the Constitution requires that a plaintiff seeking injunctive relief allege a threat of future harm.” Dapeer v. Neutrogena Corp., 95 F. Supp. 3d 1366, 1373 (S.D. Fla. 2015) (internal citation omitted). Indeed, this Court recently held that plaintiffs alleging FDUTPA violations in a different case did not have Article III standing to pursue injunctive relief where they failed to allege an intent to purchase the defendant's products in the future. See In re Monat Hair Care Prod. Mktg., Sales Practices, & Prod. Liab. Litig., No. 18-MD-02841, 2019 WL 5423457, at *5 (S.D. Fla. Oct. 23, 2019). The same is true here.

Plaintiff fails to plead a threat of future harm sufficient to have standing for FDUTPA injunctive relief. The only allegation in the Complaint that could be construed as relevant to alleging a threat of future harm is Plaintiff's conclusory assertion that “Plaintiff and all of the Class Members have suffered, and will continue to suffer, harm and damages due to Defendant['s] uniformly unlawful and wrongful conduct and practices.” [ECF No. 1 ¶ 91]. This is not enough. See Ohio State Troopers Ass'n, Inc. v. Point Blank Enterprises, Inc., 347 F. Supp. 3d 1207, 1228 (S.D. Fla. 2018) (collecting cases holding that plaintiffs lacked standing for FDUTPA injunctive relief where they did not allege an intent to purchase the product again). Notably, Plaintiff failed to address the issue of Article III standing in response to Defendant's instant Motion to Decertify, and the Court need not make arguments for him. Accordingly, the Court decertifies the Overcharge Class under Rule 23(b)(2), and dismisses without prejudice Plaintiff's claim for injunctive relief.

III. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that:

1. Defendant's Motion to Decertify, [ECF No. 277], is GRANTED in part.

2. The Inaccurate Disclosure Class is DECERTIFIED with respect to Federal Rule of Civil Procedure 23(b)(3) and 23(b)(2), and the Overcharge Class is DECERTIFIED with respect to Federal Rule of Civil Procedure 23(b)(2).

3. Plaintiff's claim for injunctive relief under FDUTPA in the Complaint, [ECF No. 1], is DISMISSED without prejudice.

4. Plaintiff's Motion for Reconsideration of Partial Summary Judgment as to the Voluntary Payment Doctrine, [ECF No. 304], is GRANTED.

5. The Court vacates the portion of its Summary Judgment Order, [ECF No. 267], pertaining to Defendant's voluntary payment doctrine defense and grants summary judgment to Plaintiff with respect to the defense.

DONE AND ORDERED in Chambers at Miami, Florida, this 17th day of August, 2020.

FOOTNOTES

1.   The Court does not consider Defendant's additional citation to the “Cox Dep” because Defendant fails to specifically reference a particular portion of Plaintiff's deposition. See Clarke v. Healthsouth Corp., No. 8:14-CV-778-T-33TGW, 2019 WL 8273648, at *1 (M.D. Fla. Oct. 22, 2019) (“When resolving a motion for summary judgment, the Court has no independent duty to search and consider any part of the record not otherwise referenced and pinpoint cited in the statement of material facts and response thereto.”).

2.   The cited deposition testimony is as follows:Q: I understand that, but my question is: Did anyone ever tell you we are going to use your trade-in to reduce the capitalized costs?A: No[ECF No. 244-3 at 165:8–11]

3.   Defendant also argues that the Court must decertify the Overcharge Class because Defendant's voluntary payment doctrine defense requires the Court to make a fact-intensive, individualized inquiry into each of the Class members' conversations with various dealers and into each of the specific provisions of the Class members' lease agreements. The Court's finding that summary judgment is warranted in favor of Plaintiff with respect to Defendant's voluntary payment doctrine defense, as discussed supra, renders this argument moot.

4.   The Court notes that Judge Louis' previous Reports stopped short of examining Article III's requirement for plaintiffs seeking injunctive relief under FDUTPA to sufficiently allege a threat of future harm. See [ECF Nos. 190 at 12–13 (finding that Plaintiff sufficiently alleged a concrete injury under Article III) & 203 at 19 (recommending that the classes be certified under Rule 23(b)(2) because FDUTPA does not require plaintiffs to allege a threat of future harm)].

DARRIN P. GAYLES, UNITED STATES DISTRICT JUDGE