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    Individual Inquiry Dooms Class Certification

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    Full text of the District Court opinion

    A denial of class certification involving a case brought against Fifth Third Bank in the Southern District of Ohio is heading to the Sixth Circuit. In Arlington Video Productions, Inc. v. Fifth Third Bank, 2008 U.S. Dist. LEXIS 51196, the district court declined to certify a class whereby the class representative alleged that Fifth Third failed to properly identify the nature of fees deducted from the class members’ banking accounts.

    These class claims were tethered to a breach of contract claim concerning the signature cards class members signed to open their banking accounts. Holding that the “delving” into the account information for each class member would not be practical, the district court held that Arlington Video failed to meet any of the class requirements.

    Attempting to obtain recovery for alleged fees that the bank collected, Arlington Video attempted to certify a class of:

    All individuals and entities who have or have had checking accounts with Fifth Third Bank in the United States, who were charged and paid a fee for a service that was not listed on a then current Fifth Third Fee Schedule, or was in an amount that was different from that stated on a then current Fifth Third Fee Schedule, prior to the assessment of the charge, during the applicable limitations period.

    Notably, plaintiffs excluded Fifth Third employees, officers, directors, and other bank representatives from the proposed class. Further, Arlington Video acknowledged that the 12 states where Fifth Third has branch locations apply different statute of limitations to breach of contract claims. Thus, Arlington Video sought to certify subclasses of customers who banked at Fifth Third that were allegedly charged “undisclosed fees” by grouping them based on the limitations period applicable in those states.

    With respect to numerosity, the district court carefully analyzed the requirements under the Truth in Savings Act and explained: 1) the Act only pertains to consumer and not business accounts; and 2) the Act did not require certain fee disclosures when Fifth Third decided to alter its fees. Importantly, the district court opined that determining which account holders qualified as class members would require “delving into the account information of each of those customers” to understand whether prior notices about fees were received by the account holders. In other words, because extensive factual inquiries would be required, the district court determined that class certification is improper.

    As for commonality, the district court plainly stated that there is no uniform way to determine if valid notice of a new fee was provided to a customer in any particular case. This feasibility conclusion tied directly to the concerns the district court had with the numerosity element.

    Next, the district court determined that Arlington Video’s failure to specifically allege that Fifth Third failed to notify customers concerning fee changes severely undermined the class claim. As courts have determined, typicality determines whether a sufficient relationship exists between the injury to the plaintiff and the conduct impacting the class. The district court determined that typicality is lacking where in individual inquiry to establish liability is necessary.

    Finally, the district court agreed with Fifth Third and held that the class representative could not represent the interest of the class through qualified counsel. In addition to the concerns of typicality and commonality, the district court explained that there were 75 different types of banking accounts, with “infinite potential for variations” in those agreements based on the customers’ needs. The Sixth Circuit will certainly grabble with the individual inquiries highlighted by the district court that dominated the holding in Fifth Third’s favor.

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