Custom Hair Designs by Sandy v. Central Payment Co.

                     United States Court of Appeals
                                    For the Eighth Circuit

                                    No. 20-1677

                       Custom Hair Designs by Sandy et al.,



                            Central Payment Co., LLC,


       Appeal from United States District Court for the District of Nebraska

                          Submitted: November 18, 2020
                            Filed: December 30, 2020

Before BENTON, ERICKSON and GRASZ, Circuit Judges.

BENTON, Circuit Judge.

       Custom Hair Designs by Sandy and Skip’s Precision Welding, LLC brought
a class action alleging breach of contract, state-law fraudulent concealment, and
violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). 18
U.S.C. §§ 1962(a), (c) & (d). The district court certified the proposed class. Central
Payment Co., LLC (CPAY) appeals. Having jurisdiction under 28 U.S.C. § 1292(e)
and Federal Rule of Civil Procedure 23(f), this court affirms certification.
       “District courts have broad discretion to determine whether certification is
appropriate.” Harris v. Union Pacific RR Co., 

953 F.3d 1030

, 1033 (8th Cir. 2020).
“In reviewing the district court’s certification decision, the district court’s rulings on
questions of law are reviewed de novo and its application of the law is reviewed for
an abuse of discretion.”

Id. The class are

over 160,000 small retailers using CPAY for credit card
processing. CPAY does not employ its (loosely affiliated) agents. They use form
contracts with blanks for the pricing terms, which are subject to negotiation.
Individual retailers can select from two basic pricing schemes—“pass-through” or
“tiered” (by class of transaction). Both focus on the price-per-transaction that credit
card issuers impose. Changes to the price-per-transaction must be approved by the
issuing banks under the terms of CPAY’s form contract.

       Plaintiffs allege CPAY misrepresented a number of fees, added fees with no
value to retailers, and inflated fees without prior approval from issuing banks.
Plaintiffs stress that the FTC previously barred, for fraud, CPAY’s founders from
selling auction guides. See Federal Trade Comm’n, California Defendants that
Deceptively Marketed and Sold Auction Information Guides for Homes and Cars
Agree to Pay Consumer Redress to Settle FTC Charges, Jan. 17, 2001,
deceptively-marketed-and-sold-auction. CPAY moved for summary judgment. In
a single order, the district court denied summary judgment and certified the class.

       This court has jurisdiction to review only the class certification, so a searching
inquiry of the record is inappropriate. Postawko v. Missouri Dep’t of Corr., 

910 F.3d 1030

, 1037 (8th Cir. 2018) (“Merits questions may be considered to the
extent—but only to the extent—that they are relevant to determining whether the
Rule 23 prerequisites for class certification are satisfied.”). “Moreover, a defendant
bears a more onerous burden in challenging certification where the initial
certification decision was carefully considered and made after certification-related

discovery.” Vogt v. State Farm Life Ins. Co., 

963 F.3d 753

, 765 (8th Cir. 2020)
(cleaned up).

       CPAY argues the district court failed to adequately explain its certification
decision.1 The district court must engage in a “rigorous analysis” of Federal Rule
23 certification. Elizabeth M. v. Montenez, 

458 F.3d 779

, 784 (8th Cir. 2006). “The
same analytical principles govern Rule 23(b).” Comcast Corp. v. Behrend, 

569 U.S. 27

, 34 (2013). This court previously rejected a “district court’s predominance
analysis [that] consisted of one short paragraph, which concluded that the plaintiffs
‘as a whole do in fact allege and have injury’ and that ‘[t]he same evidence will be
used to establish classwide proof.’” 

Harris, 953 F.3d at 1037-38

(second alteration
in original). “[A]t a minimum the rule requires a district court to state its reasons for
certification in terms specific enough for meaningful appellate review.” In re Target
Corp. Customer Data Sec. Breach Litig., 

847 F.3d 608

, 612 (8th Cir. 2017).

       CPAY argues Harris requires reversal. The district court here made specific
findings of fact. Contrary to CPAY’s assertion, the district court’s decision is
specific enough. In Harris, this court did not reverse due to a procedurally
inadequate analysis of the Rule 23 prerequisites; instead, this court reached the
merits, determining the district court abused its discretion in certifying. See 

Harris, 953 F.3d at 1039


      Finally, CPAY ignores that the district court issued an order that included its
denial of summary judgment. Because the court addressed the merits in its
summary-judgment analysis, and thus mentioned them only briefly in the class

       CPAY emphasizes that the district court’s order mischaracterizes its position
as including “whether the class members are ‘qualified’ for the position or can be
reasonably accommodated before one can determine the class composition.”
Although careless, this oversight is harmless and does not change the analysis here.

certification section, the court need not repeat its view of the record in each section
of an order. The district court here engaged in a sufficiently rigorous analysis.


       “Before a class may be certified, Rule 23 requires that plaintiffs meet all of
Rule 23(a)’s requirements and satisfy one of the three subsections of Rule 23(b).”

Harris, 953 F.3d at 1033

. “Rule 23(b)(3) . . . requires that ‘questions of law or fact
common to class members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.’”

Id., quoting Wal-Mart Stores,

Inc. v.

564 U.S. 338

, 362 (2011).


       CPAY argues that the district court erred in determining that common
questions predominate. This court begins by “considering the nature of plaintiffs’
claim to determine whether it is suitable for class certification.”

Id. This court does

not need to conclude whether the theory of liability is viable.

Id. at 1039.

This court
denies certification only if the theory of liability “is a highly individualized question
that does not allow class certification under Rule 23(b)(2) and (b)(3).”

Id. Predominance subsumes the

commonality requirement, so both can be
analyzed through the lens of predominance. Amchem Prods., Inc. v. Windsor, 

521 U.S. 591

, 609 (1997). Predominance gauges “the relationship between common and
individual questions in a case.” Tyson Foods, Inc. v. Bouapheakeo, 

136 S. Ct. 1036

1045 (2016). “An individual question is one where members of a proposed class
will need to present evidence that varies from member to member, while a common
question is one where the same evidence will suffice for each member to make a
prima facie showing or the issue is susceptible to generalized, class-wide proof.”

Id. (quotation omitted). “When

‘one or more of the central issues in the action are
common to the class and can be said to predominate, the action may be considered

proper under Rule 23(b)(3) even though other important matters will have to be tried
separately, such as damages or some affirmative defenses peculiar to some
individual class members.’”

Id., quoting 7AA C.

Wright, A. Miller, & M. Kane,
Federal Practice and Procedure, § 1778, pp. 123–124 (3d ed. 2005).


      Common questions and common answers predominate here. 

Dukes, 564 U.S. at 350

. First, all claims deal with either a common scheme of fraud or a term
common to all contracts with CPAY. True, the negotiated pricing terms are different
and some contracts authorize some fees that plaintiffs allege were fraudulent.
However, all plaintiffs allege failure to get bank preauthorization. The relevant
contract term was uniform. Compare Webb v. Exxon Mobil Corp., 

856 F.3d 1150

1156-57 (8th Cir. 2017) (finding breach of contract insufficiently common where
extent of pollution was property-specific), with McKeage v. TMBC, LLC, 

847 F.3d 992

, 999 (8th Cir. 2017) (finding commonality satisfied where breach arose from
form contract term). Plus, the statements communicating changes to billing were
nearly identical.

       Second, any pricing differences would not affect liability, only damages. If
CPAY engaged in a common scheme to defraud plaintiffs, the difference between
the bank-authorized pass-through costs and CPAY’s charges measures only the
damages to individual class members. At worst, this requires individual proof at the
damages phase, which the Court approved in Tyson. 

Tyson, 136 S. Ct. at 1045

. Plus,
to measure damages the plaintiffs plan to use CPAY’s database. This mirrors the
evidence approved in Tyson, where a statistical expert determined the average
amount of time employees spent donning and doffing their gear.

Id. at 1046.

variation in actual damages does not defeat predominance if there are common legal
questions and common facts.

     Third, that some contracts authorize a “PCI Noncompliance Fee” or a
“TSSNF Fee” does not defeat predominance. The actual extent of inquiry required

here is cursory. Plaintiffs’ expert, in calculating damages, need identify only
whether a contract authorized a PCI or TSSNF fee. Because this inquiry is not highly
individualized, it does not defeat predominance. See

id. Fourth, that changes

in bank rates cause tier shifts does not defeat
predominance. Plaintiffs’ claim is that the issuing banks did not change their
interchange rates, but CPAY moved whole classes of transactions to a higher-priced
tier. If issuing banks did change interchange fees, plaintiffs’ claim fails. If no
change occurred, CPAY’s defense fails. See 

Dukes, 564 U.S. at 350



      According to CPAY, RICO claims based on fraudulent concealment or
misrepresentation in billing are not susceptible to classwide proof of reliance,
especially where contracts authorized the billing practices. Plaintiffs counter that
their RICO claims stem from misrepresentations in performance, including
misleading justifications for rate increases as “pass-through” costs.

        “[A] plaintiff asserting a RICO claim predicated on mail fraud need not show,
either as an element of its claim or as a prerequisite to establishing proximate
causation, that it relied on the defendant’s alleged misrepresentations.” Bridge v.
Phoenix Bond & Indem. Co., 

553 U.S. 639

, 661 (2008). “When a court evaluates
a RICO claim for proximate causation, the central question it must ask is whether
the alleged violation led directly to the plaintiff’s injuries.”

Id. at 654,

quoting Anza
v. Ideal Steel Supply Corp., 

547 U.S. 451

, 461 (2006). The Court concluded its
analysis of causation under RICO with: “Having rejected petitioners’ argument that
reliance is an element of a civil RICO claim based on mail fraud, we see no reason
to let that argument in through the back door by holding that the proximate-cause
analysis under RICO must precisely track the proximate-cause analysis of a
common-law fraud claim.”

Id. at 655.

Compare In re United States Foodservice
Inc. Pricing Litig., 

729 F.3d 108

, 121-22 (2d Cir. 2013) (affirming RICO
certification in pricing case) and Torres v. S.G.E. Mgmt., LLC, 

838 F.3d 629

, 639

(5th Cir. 2016) (en banc) (post-Bridge case certifying RICO class), with Sandwich
Chef of Texas, Inc. v. Reliance Nat’l Indem. Ins. Co., 

319 F.3d 205

, 219 (5th Cir.
2003) (pre-Bridge case reversing RICO certification in pricing case). See also
Poulos v. Caesars World, Inc., 

379 F.3d 654

, 664 (9th Cir. 2004) (pre-Bridge case
declining RICO certification).

       CPAY’s arguments about reliance misstate current RICO law in the same way
as the petitioner in Bridge. Although reliance is required for common law fraud,
RICO’s predicate is mail or wire fraud, which did not exist at common law. 

Bridge, 553 U.S. at 652

. The requirements for common law fraud are not read into RICO.

Id. Thus, plaintiffs are

correct that overpayments from a pattern of systemic mail
fraud in CPAY’s billing would satisfy RICO’s causation requirements and be
common among all plaintiffs. See In re 

Foodservice, 729 F.3d at 122

(holding fees
“created for the purpose of misrepresenting cost and . . . then kept secret so as to
deceive customers about overbilling” was a question amenable to common proof).


       CPAY argues the statute of limitations defeats predominance, alleging some
claims may be time-barred. Plaintiffs counter that fraudulent concealment can toll
the statute of limitations and is susceptible to classwide proof.

       “If a petition alleges a cause of action ostensively barred by the statute of
limitations, such petition, in order to state a cause of action, must show some excuse
tolling the operation and bar of the statute.” L.J. Vontz Constr. Co. v. Dep’t of

440 N.W.2d 664

, 665 (Neb. 1989). “Under the doctrine of fraudulent
concealment, the plaintiff must show that he or she exercised due diligence to
discover his or her cause of action before the statute of limitations expired and that
the defendant committed some affirmative act of fraudulent concealment which
prevented the plaintiff from discovering his or her cause of action. Upah v. Ancona
Bros. Co., 

521 N.W.2d 895

, 902 (Neb. 1994), disapproved on other grounds by
Welsch v. Graves, 

582 N.W.2d 312

, 316 (Neb. 1998).

       Whether CPAY engaged in affirmative acts to conceal its fraudulent billing
practices is a question susceptible to classwide proof. The question is not whether
each individual defendant was personally confused, but whether CPAY’s scheme of
billing prevented discovering the fraud. For example, CPAY allegedly sent notices
telling merchants that bank fees mandated higher prices. This statement, if false,
would be an affirmative act of fraudulent concealment to each plaintiff receiving the
statement. Thus, the statute of limitations does not defeat predominance here.


      CPAY argues state-law fraudulent concealment requires reliance. “In a
typical common-law fraud case, a plaintiff must show that he or she received the
defendant’s alleged misrepresentation and relied on it.” In re St. Jude Med., Inc.,

522 F.3d 836

, 838 (8th Cir. 2008). To prove fraudulent concealment, a plaintiff must
            “(1) the defendant had a duty to disclose a material fact;
            (2) the defendant, with knowledge of the material fact,
            concealed the fact; (3) the material fact was not within the
            plaintiff’s reasonably diligent attention, observation, and
            judgment; (4) the defendant concealed the fact with the
            intention that the plaintiff act in response to the
            concealment or suppression; (5) the plaintiff, reasonably
            relying on the fact or facts as the plaintiff believed them
            to be as the result of the concealment, acted or withheld
            action; and (6) the plaintiff was damaged by the plaintiff’s
            action or inaction in response to the concealment.”

Knights of Columbus Council 3152 v. KFS BD, Inc., 

791 N.W.2d 317

, 333 (Neb.
2010). “One who makes a fraudulent misrepresentation is subject to liability to the
persons or class of persons whom he intends or has reason to expect to act or to
refrain from action in reliance upon the misrepresentation.” Bank of Valley v.

339 N.W.2d 923

, 927 (1983).

       Contrary to CPAY’s assertion that agents’ representations to each class
member must be examined, plaintiffs focus on CPAY’s intent to defraud by
concealing their overall plan to raise prices illegitimately. Agent communications
are relevant as a defense, but only if CPAY could prove agents disclosed CPAY’s
intention to charge higher fees without issuing bank authorization. CPAY did not
introduce summary judgment evidence suggesting its agents disclosed its plans.

       Plaintiffs could reasonably have relied on CPAY’s representation that issuing
banks authorized rate changes. See Knights of 

Columbus, 791 N.W.2d at 333

(sending “false and misleading letters” to customers qualifies as inducing reliance).
Plaintiffs accepted the validity of rate increases based on CPAY’s representation that
issuing banks authorized the changes. See

id. at 334

(“[W]hen a plaintiff’s inaction
in response to a concealment causes damages, it is because the concealment of
material information induced the plaintiff’s false belief that action was not
needed.”). Nebraska reliance law does not defeat predominance.


       CPAY argues that the named plaintiffs’ claims are not typical of class
members’. “Typicality is fairly easily met so long as other class members have
claims similar to the named plaintiff.” 

Postawko, 910 F.3d at 1039

. “Factual
variations in the individual claims will not normally preclude class certification if
the claim arises from the same event or course of conduct as the class claims, and
gives rise to the same legal or remedial theory.”

Id. When typicality and

commonality arguments overlap significantly, the analysis for commonality largely
determines typicality.

Id. “[T]he potential for

minor ‘factual variations’ does not
undermine the district court’s conclusion that the violation allegedly suffered by the
Named Plaintiffs is typical of that suffered by the class as a whole.”

Id. The named plaintiffs’

claims are typical of the class. CPAY ignores the
similarities of the core claims both named plaintiffs make—the general scheme of
deceptive billing, violation of the bank pre-authorization contract requirement, and

fraudulent concealment. Since plaintiffs’ claims resemble the theories applicable to
all class members, minor factual variations such as differences in rates do not defeat


       CPAY argues that the named plaintiffs do not represent class interests
adequately. 2 “Where, as here, adequacy of class representation is at issue, ‘close
scrutiny’ in the district court is even more important given the need to protect the
due process rights of absent class members.” Target 

Corp., 847 F.3d at 612

. In
Target this court found recitation of Rule 23(a)(4) insufficient without explanation
or response to defendants’ claim of an intraclass conflict.

Id. at 613.

Despite the
defendants’ timely objections, the district court there never analyzed the intraclass
conflict claims that might have undermined the integrity of the class as certified.

Id. CPAY’s claims are

unlike those in Target. First, CPAY objects to failure to
include members of a hypothetical class that plaintiffs did not seek to certify. Target
deals only with an overbroad class certification that includes intraclass conflicts.
Identifying and not including class members does not create an intraclass conflict,
because the claims of non-class-members are not litigated. The claims CPAY
discusses would thus not be precluded. See Dicken v. Ashcroft, 

972 F.2d 231

, 233
(8th Cir. 1992), citing Gonzales v. Cassidy, 

474 F.2d 67

, 72 (5th Cir. 1973)
(“[I]nadequate representation of class precludes res judicata from attaching to that

        Since neither named plaintiff suffered a tier shift, CPAY argues they cannot
adequately represent class interests. See Amchem Prod., Inc. v. Windsor, 

521 U.S. 591

, 626 (1997). This argument misunderstands the injury here. Breach of the pre-
authorization contract term could be either a tier shift or an impermissible increase
in interchange fees without a tier shift. Named plaintiffs’ interests align with other
members suffering a slightly different breach of the same contract term. To the
extent named plaintiffs are not representative, the district court may consider a
motion to amend to add named plaintiffs. See Fed. R. Civ. P. 15 & 16; In re Milk
Prod. Antitrust Litig., 

195 F.3d 430

, 438 (8th Cir. 1999) (leaving decision to add
named plaintiffs to district court’s discretion).

judgment and binding absent class members.”). This case does not raise the due
process concerns in Target, where the financial interests of actual class members
potentially diverged. The district court did not err in determining the named
plaintiffs adequately represented class interests.


       CPAY claims the class does not satisfy superiority. “The superiority
requirement involves showing ‘that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.’” Perras v. H & R

789 F.3d 914

, 916 (8th Cir. 2015), quoting Fed. R. Civ. P. 23(b)(3). Class
actions are superior when “the class members’ claims are generally small and
unlikely to be pursued individually.” Stuart v. State Farm Fire & Cas. Co., 

910 F.3d 371

, 377 (8th Cir. 2018).

      A class action is the superior mechanism to try this case. Plaintiffs’ individual
claims are for tens or hundreds of dollars. Absent a class action, no plaintiff is likely
to pursue their claim individually. The district court did not abuse its discretion in
finding a class action superior here.


      The appealed order is affirmed.


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