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Berkson v. Gogo LLC - 97 F. Supp. 3d 359 (E.D.N.Y. 2015)

Rule:

If none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendant, none may seek relief on behalf of himself or any other member of the class. In a putative class action, a plaintiff has class standing if he plausibly alleges (1) that he personally has suffered some actual injury as a result of the putatively illegal conduct of the defendant, and (2) that such conduct implicates the same set of concerns as the conduct alleged to have caused injury to other members of the putative class by the same defendants.

Facts:

Plaintiffs Adam Berkson and Kerry Welsh sued the Defendants, alleging that they improperly increased their sales and profits by misleading customers into purchasing a service that charged a customer's credit card, on an automatically-renewing continuing monthly basis, without adequate notice or consent. Defendants moved to dismiss for lack of standing on the ground that Plaintiff Berkson was reimbursed by his credit card company when they refused to do so and Plaintiff Welsh directly received a settlement offer in the form of full demand.

Issue:

Do the plaintiffs have the standing to file a class action suit?

Answer:

Yes.

Conclusion:

The federal district court held that both plaintiffs had sufficiently established standing for their class action consistent with U.S. Const. art. III because even though one consumer was reimbursed the full amount of his claim, this reimbursement did not qualify as a full refund; furthermore, even though a credit card company reimbursed the alleged unauthorized charges for the other named plaintiff, he suffered particularized injury traceable to the provider each day it allegedly billed unauthorized charges to his credit card.

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