The opinion of the court was delivered by: Chin, District Judge
Before the Court is plaintiffs' motion for class certification pursuant to Federal Rule of Civil Procedure 23. Plaintiffs seek to certify a class of "all consumers who purchased merchandise from Best Buy since February 2003 and were improperly charged for a magazine subscription to Sports Illustrated, Entertainment Weekly, or Time and who have been damaged." (Compl. ¶ 33).*fn1 Plaintiffs proceed based on theories of breach of contract and unjust enrichment.
Because it is clear that plaintiffs' claims rely on oral representations of individual sales clerks that do not lend themselves to "generalized proof," the motion for class certification is denied.
I make the following findings of facts based on the deposition testimony, affidavits, and exhibits submitted by the parties in connection with this motion. In re Initial Pub. Offering Sec. Litig. (In re IPO Sec. Litig.), 471 F.3d 24, 27, 41 (2d Cir. 2006) (when adjudicating motion for class certification, "all of the evidence must be assessed as with any other threshold issue"; "the judge [must] resolve factual disputes" relevant to motion).
1. Plaintiffs' Transactions at Best Buy
The two named plaintiffs are Dylan McCracken and Paul Watchorn, both of whom purchased subscriptions to magazines published by defendant Time, Inc. ("Time") when they were purchasing other merchandise at stores operated by defendant Best Buy Stores, L.P. ("Best Buy").
On September 9, 2005, McCracken was shopping at a Best Buy store in Los Angeles, California. (Cavanna Decl. Ex. 4). When he used his debit card to purchase six DVDs, the cashier offered "free issues of the magazine of [his] choice." (McCracken Dep. at 24:7-9; 25:15-16).*fn2 He accepted the offer after he "made sure [the magazines were] free and it wasn't a gimmick." (Id. at 26:25-27:2). Although he does not recall "the precise chronological order of the events" of the transaction, McCracken did sign an electronic signature pad, which stated the following:
I AUTHORIZE BestBuy [sic] to give my credit/debit card to SI to CHARGE MY CARD after the 8 issue trial for 24 issues (8 16 more) at $24.95 & to charge auto renewals every 6 months at then current rate. See flyer. (Id. at 25:10-11; 39-41; Boe Decl. Ex. 6). McCracken signed his name immediately below this language. He only "glanced over" the disclosure on the signature pad and "didn't really pay much attention to it." (McCracken Dep. at 40:9-10). Nevertheless, he was given the material terms of the magazine offer prior to completing the transaction.
McCracken also received a receipt, which showed that he was charged "$0.00" for Sports Illustrated. (Id. at 51-52; Cavanna Decl. Ex. 4). In addition, the receipt contained the following information about the magazine offer:
NO RISK: If within 8 issues you do not want the magazine, call SI at 1-800-284-8800 or go online to: WWW.SICUSTOMERSERVICE.COM and you will not be charged. If you do not cancel during the 8 issue trial, SI will charge your card $24.95 for the initial 24 issue subscription term (8 issue trial 16 more, 24 total issues). (Id.). McCracken also "glanced over" the disclosure section of the receipt, but "did not absorb it completely." (McCracken Dep. at 52:4-5).
McCracken does not remember whether the sales clerk gave him the flyer mentioned on the signature pad (id. at 26:12-13; see also id. at 31:9-18), even though at the point of sale, clerks were supposed to give each enrolling customer a brochure containing the material terms of the magazine offer (Boe Decl. ¶¶ 8, 14; id. Ex. 1). See also Labajo v. Best Buy Stores, L.P., 478 F. Supp. 2d 523, 526 (S.D.N.Y. 2007). Time mails a confirmation notice to customers who purchase a subscription, which reiterates the automatic renewal and cancellation provisions of the offer. (Cavanna Decl. ¶ 7; id. Exs. 6, 7). McCracken also does not recall receiving this notice. (McCracken Dep. at 58:13-16).
McCracken was charged for one subscription term on November 19, 2005, but he cancelled and received a full refund of $24.95 on December 1, 2005. (Id. at 67:14-18; Cavanna Decl. ¶ 10).*fn3 His alleged damages, however, are the fees that were assessed when his bank account was overdrawn for insufficient funds. (McCracken Dep. at 67, 80-82; Clarick Decl. Ex, 3).
On January 19, 2005, Watchorn purchased a prepaid cell phone at a Best Buy store in Jacksonville, Florida. (Clarick Decl. Ex. 5). He learned about the magazine offer from a sales clerk during checkout. (Watchorn Dep. at 27:9-16).*fn4 In her presentation of the offer, the clerk used the phrases "free magazines" and "trial subscription." (Id. at 27:23-24, 28:12-13).
Watchorn paid for his purchase in cash, but provided his credit card and signed an electronic signature pad when the sales clerk informed him that a credit card was required "for verification purposes." (Id. at 25:3-7). Watchorn testified that the signature pad did not display any disclosure (id. at 55:11-13), but he is wrong.*fn5 The signature pad contained the following language:
Yes! Sign me up for Entertainment Weekly's 8 issue trial offer with automatic renewal. I authorize Best Buy to give my credit or debit card to EW and EW to charge my card for the initial and six month renewal terms. (Boe Decl. Ex. 6). Watchorn signed immediately below. (Id.). He was thus given the material terms of the offer before he signed the signature pad, except that he was not told the price of a magazine subscription.
Watchorn also received a receipt, which showed that he was charged "$0.00" for Entertainment Weekly. (Watchorn Dep. at 69; Cavanna Decl. Ex. 5). In addition, the receipt contained the same information as the signature pad as ...