Earlier this month, Arlington Video Productions, Inc. filed a notice of appeal from denial of class certification (and later summary judgment) in a case it brought against Fifth Third Bank in the Southern District of Ohio. Challenging certain fees assessed by Fifth Third, Arlington Video sought 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.
The district court declined to certify the class, holding that there were “valid concerns as to whether the numerosity requirement has been satisfied,” and finding that Arlington Video met none of the other three class requirements of commonality, typicality, and adequacy of representation. Practical problems plagued the certification request, as the court expressed concern over the necessary and onerous factual inquiry to identify the class and, thus, to determine numerosity. Such an inquiry would require surveying all account holders for those who had not only been charged fees, but fees not listed on specific agreements and of which they were not given adequate notice. These same individualized concerns, the court held, pervaded the commonality requirement and, thus, no common legal or factual thread ran through all potential class members.
The court noted that typicality cannot exist “where litigation of the individual circumstances of each account holder’s negotiations of the terms of his or her account and a breach of duty to each account holder on the part of defendant is necessary to establish liability and to support an award of damages.” The court echoed this reasoning in holding that Plaintiff failed to establish adequacy of representation. For instance, there are 75 types of business accounts with “infinite potential for variations” in those account holder agreements. This case may give the Sixth Circuit an opportunity to explore issues relating to class certification that practitioners regularly face; therefore, we'll keep an eye on this case.