Opinion
06 Civ. 2198 (MGC) 96489, 06 Civ. 2992 (MGC).
September 10, 2008
GISKAN, SOLOTAROFF ANDERSON STEWART, LLP Attorneys for Plaintiff Lebowitz, New York, New York Oren Giskan, Esq., Catherine E. Anderson, Esq.
WHALEN TUSA, PC Attorneys for Plaintiff Gary Lebowitz New York, New York Joseph S. Tusa, Esq. Paul C. Whalen, Esq.
LAW OFFICES OF CURTIS V. TRINKO, LLP Attorneys for Plaintiffs Andrew Newmark, Allan Newmark, and Burt Faure New York, New York Curtis V. Trinko, Esq. Wai K. Chan, Esq.
GIBSON, DUNN CRUTCHER LLP Attorneys for Defendant New York, New York Randy M. Mastro, Esq. Mark B. Holton, Esq. Nancy E. Hart, Esq.
MEMORANDUM OPINION AND ORDER
Plaintiffs Gary Lebowitz, Andrew Newmark, Allan Newmark, and Burt Faure move pursuant to Fed.R.Civ.P. 23(b)(3) to certify a class consisting of all people who prepaid for a year's subscription to the Wall Street Journal Online ("WSJ Online"), which included free access to Barron's Online, and were injured when defendant Dow Jones Company, Inc. ("Dow Jones") removed free access to Barron's Online. For the reasons that follow, the motion is denied, without prejudice, as premature.
In the original complaint, Gary Lebowitz's name was misspelled as Gary Liebowitz.
The relevant procedural history is as follows. On March 21, 2006, Gary Lebowitz, individually and on behalf of all others similarly situated, sued Dow Jones for breach of contract and violation of N.Y. G.B.L. § 349. On April 18, 2006, Andrew Newmark, Allan Newmark, and Burt Faure, individually and on behalf of all others similarly situated, also sued Dow Jones Company, making similar and additional claims. Both suits were filed in federal court pursuant to the Class Action Fairness Act of 2005, Pub.L. No. 109-2, 119 Stat. 4 (codified in scattered sections of Title 28, United States Code) ("CAFA"). The suits were consolidated on May 26, 2006.
The Third Consolidated Amended Complaint was filed on November 13, 2007. On January 18, 2007, I dismissed plaintiffs' claims for unjust enrichment and violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. §§ 42-110a et seq., and gave leave to amend as to the two remaining claims, breach of contract and violation of N.Y. G.B.L. § 349. I also instructed that the parties should complete discovery as quickly as possible, after which plaintiffs could move for class certification. On September 28, 2007, plaintiffs moved to certify the class. At the hearing on December 6, I raised, not for the first time, the question of subject matter jurisdiction. Based on certain documents discussed in the defendant's motion and at oral argument, it appeared that the jurisdictional amount was in question. I asked for supplemental briefing on the issue of whether CAFA's amount in controversy requirement would be met by the proposed class.
Under CAFA, the party asserting federal jurisdiction has the burden to demonstrate federal subject matter jurisdiction.DiTolla v. Doral Dental IPA of New York, 469 F.3d 271, 275 (2d Cir. 2006). Here, plaintiffs sued in federal court. Therefore, plaintiffs must show by a reasonable probability that the aggregate claims of the plaintiff class are in excess of $5 million. Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57-59 (2d Cir. 2006) (remanding to district court for explanation of how the court calculated amount in controversy).
Whether the amount in controversy reaches $5 million depends on two numbers: (1) how many WSJ Online subscribers are properly within the class, and (2) how to value the damage suffered by plaintiffs from the removal of their Barron's Online access. The determination of these two issues overlaps with the question of whether common issues of fact and law predominate in the class. At this point, nine months after the December hearing, the parties are still involved in discovery disputes regarding subject matter jurisdiction. Accordingly, the motion to certify the class is denied as premature. If subject matter jurisdiction is established, the motion may be renewed.
SO ORDERED.