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CAFA Law Blog Information, cases and insights regarding the Class Action Fairness Act of 2005

Voice of India Echoes in California

Posted in Case Summaries

Pickman v. American Express Co., 2012 WL 258842 (N.D. Cal. Jan. 27, 2012)

While concluding that it had subject matter jurisdiction over the plaintiff’s CLRA class action, a District Court in California held that under CLRA, a plaintiff cannot sue as an attorney general on behalf of the California people; instead the plaintiff should sue as a class member representing the class.

The plaintiff, Heidi Pickman, filed a class action lawsuit in the California Superior Court in Alameda County, on behalf of herself and the people of California, for eight violations of California’s Consumers Legal Remedies Act (“CLRA”), alleging that American Express Company and its affiliates’ unfair and deceptive practices had resulted in an unlawful sale of services.

The plaintiff is a current American Express credit card holder and uses her card for personal use. American Express Company is a parent company of American Express Travel Related Services Company, which is a parent of American Express Centurion Bank, which is in turn a parent of American Express Bank, FSB. These affiliated companies provide various services beyond extending credit, including travel assistance and identity theft protection.

In order to fully benefit from these services, patrons must occasionally call the defendants’ support centers. During these calls, customers invariably provide their personal financial information, at times contained in electronic transmissions. The plaintiff entrusted this information to the defendants, believing that it was safeguarded from government intrusion. She was not informed, however, that these communications were being made to foreign-based call centers, staffed for the most part by foreign nationals. The defendants had created a seamless customer experience where local area code calls were transferred as far as India and New Zealand. And because these international conversations were not subject to the same constitutional protections against warrantless searches and seizures as national calls, the plaintiff’s telecommunications and data transfers were subject to unimpeded interception by the United States government.

The plaintiff sought compensatory and punitive damages and injunctive relief, as well as attorney’s fees, for each of the at least 5,001 calls that have been made to the defendants’ overseas call centers. 

The defendants removed the action to federal court, pursuant to CAFA. 

A week later, the defendants moved to dismiss the complaint. 

In her opposition to the motion to dismiss, the plaintiff contended that removal was improper. 

Thus, the District Court first decided if the removal was proper and found in the affirmative. As a preliminary matter, the Court noted that a defendant may remove any civil action, including a “class action,” from state to federal court, so long as the federal district court has original jurisdiction and there is no specific act of Congress stating otherwise.  

The federal district courts have original jurisdiction over “class actions” in which the amount of controversy exceeds $5 million and any member of the class of plaintiffs is a citizen of a different state from any defendant. Under CAFA, a class action is defined as “any civil action filed under Rule 23 of the Federal Rules of Civil Procedure or similar state statute or rule of judicial procedure authorizing an action to be brought by one or more representative persons as a class action.” The CLRA is substantially “similar” to Rule 23 such that claims brought under the CLRA on behalf of other consumers are class actions. Indeed, pertinent sections of these two statutes – Cal. Civ. Code 1781(b) and Rule 23 are nearly indistinguishable.  

Under this background, the Court found that the plaintiff’s class action claim was subject to federal court’s original jurisdiction. Specifically, the parties are diverse and the plaintiff sought relief on behalf of a putative class—members of the California public who are American Express cardholders. The amount in controversy was satisfied by multiplying the minimum amount of damages to be sought under the CLRA ($1,000) by the number of alleged violations (5,001). Accordingly, the Court concluded that this was a class-action suit properly removed to federal court. 

The plaintiff, however, countered that her claim was not an attempted class action so that the amount in controversy was a mere $8,000—the minimum amount of damages allowable under the CLRA multiplied by the number of statutory violations. 

The Court remarked that although the plaintiff sought relief on behalf of others, she failed to take into account the damages of other cardholders or callers. The plaintiff also stated that she sued not as a class member but as a private attorney general on behalf of the California people. The Court observed that there is no provision in the CLRA allowing that type of suit. Although the plaintiff began her complaint stating that she “did not bring the causes of action herein as a class action,” she immediately thereafter argued that the California court should adjudicate violations of the CLRA “as class actions”. 

In a last ditch effort, the plaintiff concentrated her fire on the defendants’ “misleading” and “disingenuous” omission of Stein v. American Express Travel Related Services, 2011 WL 4430855 (D.D.C. Sept. 23, 2011), in which the district court at District of Columbia remanded a somewhat similar claim back to the District of Columbia Superior Court.  

The Court remarked that the holding in Stein was clearly inapposite, as the unique District of Columbia statute there at issue had a provision authorizing representative actions as “a separate and distinct procedural vehicle from a class action,” and thus allowed suits by private attorney generals. 

Because this class action has been removed to federal court and plaintiff has not provided a scintilla of relevant authority as to the impropriety of removal, the Court found it had subject-matter jurisdiction, and refused to remand the action back to state court.