Kessler v. Samsung Electronics America Inc

BRIEF in Support

E.D. Wis.July 3, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN MILWAUKEE DIVISION DALE KESSLER, individually and on ) behalf of all others similarly situated ) ) Plaintiffs, ) ) v. ) No. 2:17-cv-00082-LA ) SAMSUNG ELECTRONICS AMERICA, INC., ) ) Defendant. ) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT SAMSUNG ELECTRONICS AMERICA, INC.’S MOTION TO DENY CLASS CERTIFICATION OR STRIKE CLASS ALLEGATIONS Case 2:17-cv-00082-LA Filed 07/03/18 Page 1 of 28 Document 31 i Table of Contents I. INTRODUCTION .......................................................................................................................... 1 II. FACTUAL BACKGROUND ......................................................................................................... 2 A. Individuals Who Purchased or Leased a Galaxy S7, S7 Edge or S7 Active Agreed to Arbitrate Any Claims Against Samsung on an Individual Basis. ...................... 2 B. Samsung Provided Ample Notice of the Arbitration Agreement. ...................................... 3 C. Plaintiff Opted Out of Arbitration; The Proposed Class is Comprised of Individuals Who Did Not. ................................................................................................... 4 III. LEGAL STANDARD ..................................................................................................................... 4 IV. ARGUMENT .................................................................................................................................. 5 A. Plaintiff Cannot Represent Individuals Who Agreed to Arbitrate Their Claims Against Samsung. ................................................................................................... 5 1. Plaintiff Cannot Satisfy Adequacy, Typicality or Commonality Requirements of Rule 23(a). ................................................................................... 6 2. Plaintiff Lacks Standing to Challenge the Arbitration Agreement, and Any Such Challenge Would Underscore Why Plaintiff Cannot Satisfy Rule 23(a). .................................................................................................. 8 3. The Arbitration Agreement Binds Putative Class Members, and Any Challenge to that Agreement Would Require Numerous Mini- Trials Under the Laws of All 50 States. ................................................................ 10 B. This Court Also Lacks Personal Jurisdiction as to Claims Asserted on Behalf of Non-Resident Proposed Class Members. .......................................................... 15 1. This Court Must Have General or Specific Personal Jurisdiction Over the Defendant. ............................................................................................. 16 2. This Court Lacks General Personal Jurisdiction over Samsung; Specific Personal Jurisdiction is Required. ........................................................... 17 3. The Supreme Court’s Decision in Bristol-Myers Confirms this Court Must Have Specific Jurisdiction Over Claims of Putative Class Members. ..................................................................................................... 17 V. CONCLUSION ............................................................................................................................. 21 Case 2:17-cv-00082-LA Filed 07/03/18 Page 2 of 28 Document 31 ii TABLE OF AUTHORITIES Page(s) Cases Am. Health & Res. Ctr. Ltd. v. Alcon Labs., Inc., No. 16-cv-04539 (N.D. Ill. June 15, 2018) ..........................................................................2, 18 Amehem Prods., Inc. v. Windsor, 117 S. Ct. 2231 (1997) .............................................................18 Anderson v. Logitech, Inc., No. 17-C-6104, 2018 WL 1184729 (N.D. Ill. Mar. 7, 2018) ............................................19, 20 Avilez v. Pinkerton Gov’t Servs., Inc., 596 F. App’x 579 (9th Cir. 2015) ........................................................................................8, 10 Barden v. Hurd Millwork Co., Inc., 249 F.R.D. 316 (E.D. Wis. 2008) ............................................................................................11 Boehm v. Getty Images (US), Inc., No. 16-cv-311-jdp, 2016 WL 6110058 (W.D. Wis. Oct. 19, 2016) ........................................15 In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002) .................................................................................................11 Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773 (2017) ..................................................................................................... passim Casso’s Wellness Store & Gym, L.L.C. v. Spectrum Lab. Prods., Inc., No. 17-2161, 2018 WL 1377608 (E.D. La. Mar. 19, 2018) ....................................................19 Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) ...........................................................12 Champ v. Siegel Trading Co., No. 89-7148, 1990 WL 19984 (N.D. Ill. Feb. 27, 1990) .......................................................6, 8 Chavez v. Church & Dwight Co., Inc., No. 17-cv-1948, 2018 WL 2238191 (N.D. Ill. May 16, 2018) ..........................................18, 19 Conde v. Open Door Mktg., LLC, No. 15-4080, 2017 WL 1508968 (N.D. Cal. Apr. 27, 2017) ...........................................1, 9, 20 Day v. Air Methods. Corp., No. 5:17-183-DCR, 2017 WL 4781863 (E.D. Ky. Oct. 23, 2017) ..........................................19 DeBernardis v. NBTY, Inc., No. 17-cv-6125, 2018 WL 461228 (N.D. Ill. Jan. 18, 2018) ...................................................19 Case 2:17-cv-00082-LA Filed 07/03/18 Page 3 of 28 Document 31 iii In Re Dental Supplies Antitrust Litig., 16 Civ. 696 (BMC) (GRB), 2017 WL 4217115 (E.D.N.Y. Sept. 20, 2017) ...........................19 Dolmage v. Combined Ins. Co. of Am., No. 14-cv-3809, 2017 WL 1754772 (N.D. Ill. May 3, 2017) ..................................................11 Doster Lighting, Inc. v. E-Conolight, LLC, No. 12-C-0023, 2015 WL 3776491 (E.D. Wis. June 17, 2015) ..............................................11 Epic Sys. Corp. v. Lewis, --- S.Ct. ---, 2018 WL 2292444 (U.S. May 21, 2018) .............................................................11 Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., No. 17-cv-00564 NC, 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017) ....................................19 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) .................................................................................................................16 Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997) .....................................................................................11, 12, 14 Hill v. Wells Fargo Bank, N.A., 946 F. Supp. 2d 817 (N.D. Ill. 2013) ............................................................................... passim Ineman v. Kohl’s Corp., No. 14-CV-398-WMC, 2015 WL 1399052 (W.D. Wis. Mar. 26, 2015) ................................12 Kasalo v. Harris & Harris, Ltd., 656 F.3d 557 (7th Cir. 2011) ...............................................................................................5, 20 King v. Capital One Bank (USA), N.A., No. 3:11-CV-00068, 2012 WL 5570624 (W.D. Va. Nov. 15, 2012) ....................................5, 6 Lim v. Helio, LLC, No. 11-9183, 2012 WL 12884439 (C.D. Cal. Apr. 18, 2012) .............................................8, 11 Maclin v. Reliable Reports of Texas, Inc., No. 1:17-CV-2612, 2018 WL 1468821 (N.D. Ohio Mar. 26, 2018) .......................................19 McDonnell v. Nature’s Way Prod., LLC, No. 16-cv-5011, 2017 WL 4864910 (N.D. Ill. Oct. 26, 2017) ................................................19 McNamara v. Samsung Telecomms. Am., LLC, No. 1:14-cv-01676, 2014 WL 5543955 (N.D. Ill. Nov. 3, 2014) ............................4, 13, 14, 15 In re Morning Song Bird Food Litig., Lead Case No. 12-cv-01592 JAH-AGS, 2018 WL 1382746 (S.D. Cal. Mar. 19, 2018) ..................................................................................................................................19 Case 2:17-cv-00082-LA Filed 07/03/18 Page 4 of 28 Document 31 iv Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 103 S. Ct. 927 (1983) ...............................................................................................................11 Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., No. 16-665, 2017 WL 3129147 (E.D. Pa. July 24, 2017) .......................................................19 Practice Management Support Sevices, Inc. v. Cirque du Soleil, No. 14-cv-2032, 2018 WL 1255021 (N.D. Ill. Mar. 12, 2018) .........................................18, 19 ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) ...............................................................................................4, 12 Quinlan v. Macy’s Corporate Servs. Inc., No. 12-0737, 2013 WL 11091572 (C.D. Cal. Aug. 22, 2013) ..................................................8 Renton v. Kaiser Found. Health Plan, Inc., No. 00-5370, 2001 WL 1218773 (W.D. Wash. Sept. 24, 2001) ................................................8 In re Samsung Galaxy Smartphone Mktg. & Sales Practices Litig., 298 F. Supp. 3d 1285 (N.D. Cal. 2018) .....................................................................................4 Santangelo v. Comcast Corp., No. 15-CV-0293, 2017 WL 6039903 (N.D. Ill. Dec. 6, 2017) ........................................ passim Schmidt v. Samsung Elecs. Am., Inc., No. C16-1725-JCC, 2017 WL 2289035 (W.D. Wash. May 25, 2017) .........................4, 13, 14 SportPet Designs Inc. v. Cat1st Corp., No. 17-cv-554, 2018 WL 1157925 (E.D. Wis. Mar. 2, 2018) .................................................17 Spratley v. FCA US LLC, No. 3:17-CV-0062, 2017 WL 4023348 (N.D.N.Y. Sept. 12, 2017) ........................................19 Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010) ...................................................................................................16 Tan v. Grubhub, Inc., No. 15-CV-05128-JSC, 2016 WL 4721439 (N.D. Cal. July 19, 2016) ........................... passim Thomas v. Ford Motor Co., 289 F. Supp. 3d 941 (E.D. Wis. 2017) ...............................................................................16, 17 Tickanen v. Harris & Harris, Ltd., 461 F. Supp. 2d 863 (E.D. Wis. 2006) .....................................................................................12 Voorhees v. ACE Am. Ins. Co., 244 F. Supp. 3d 861 (E.D. Wis. 2017) .....................................................................................10 Case 2:17-cv-00082-LA Filed 07/03/18 Page 5 of 28 Document 31 v Wenokur v. AXA Equitable Life Ins. Co., No. CV-17-000165-PHX-DLR, 2017 WL 4357916 (D. Ariz. Oct. 2, 2017) ..........................19 Zieger v. Advance Am., Cash Advance Ctrs., Inc., No. 13-1614, 2014 WL 7388365 (D. Del. Dec. 29, 2014) .............................................. passim Statutes 28 U.S.C. § 2072 ........................................................................................................................6, 18 Fed. R. Civ. P. 23(a) ........................................................................................................ 1, 6-10, 15 Fed. R. Civ. P. 23(c)(1)(A) ....................................................................................................4, 5, 20 Fed. R. Civ. P. 23(d)(1)(D) ..........................................................................................................4, 5 Case 2:17-cv-00082-LA Filed 07/03/18 Page 6 of 28 Document 31 1 I. INTRODUCTION This Motion is based on a simple premise: Plaintiff Dale Kessler, who exercised his contractual right to opt out of arbitration, cannot represent those who (i) agreed to arbitrate any disputes on an individual basis, or (ii) are not Wisconsin residents and therefore have insufficient connections to this forum. Because the proposed class is defined to include both groups, the Court should deny class certification or strike the class allegations. Addressing this issue now is critical because Plaintiff is seeking sweeping discovery regarding individuals who could never be part of any class. Plaintiff cannot represent individuals who agreed to arbitrate disputes on an individual basis. Plaintiff opted out of the arbitration agreement (“Arbitration Agreement”) that accompanied his Galaxy S7 Edge smartphone (“S7 Edge”), but his proposed class necessarily includes individuals who agreed to arbitrate any dispute with Samsung Electronics America, Inc. (“Samsung”). Under these circumstances, courts reject class allegations as failing the typicality, commonality and adequacy requirements of Rule 23(a). See, e.g., Santangelo v. Comcast Corp., No. 15-CV-0293, 2017 WL 6039903, at *1 (N.D. Ill. Dec. 6, 2017) (striking class allegations asserted by plaintiff who opted out of arbitration where putative class encompassed individuals who agreed to arbitrate). Plaintiff does not have standing to challenge the Arbitration Agreement,1 but even if he did, he could not credibly challenge that Agreement given his decision to opt out. The class allegations should therefore be stricken on this basis alone. Plaintiff’s proposed class definition also is improper because it covers nonparties residing outside Wisconsin whose claims have no connection to this forum. Under the U.S. 1 See, e.g., Conde v. Open Door Mktg., LLC, No. 15-4080, 2017 WL 1508968, at *7 (N.D. Cal. Apr. 27, 2017); Zieger v. Advance Am., Cash Advance Ctrs., Inc., No. 13-1614, 2014 WL 7388365, at *4 (D. Del. Dec. 29, 2014). Case 2:17-cv-00082-LA Filed 07/03/18 Page 7 of 28 Document 31 2 Supreme Court’s recent decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773 (2017), the Court lacks personal jurisdiction over the claims of the non-resident unnamed class members. Plaintiff cannot circumvent Bristol-Meyers by seeking to assert claims on their behalf. See Am. Health & Res. Ctr. Ltd. v. Alcon Labs., Inc., No. 16-cv-04539 (N.D. Ill. June 15, 2018) (Ex. 1 hereto) at p.5 (“Because these nonresidents’ claims do not relate to Defendants’ contacts with Illinois, exercising specific personal jurisdiction over Defendants with respect to them would violate Defendants’ due process rights. Thus, the class allegations referring to the non-Illinois-resident class members are stricken.”). For both reasons, the Court should deny class certification or strike the class allegations and proposed class definition. II. FACTUAL BACKGROUND A. Individuals Who Purchased or Leased a Galaxy S7, S7 Edge or S7 Active Agreed to Arbitrate Any Claims Against Samsung on an Individual Basis. Everyone who purchased or leased a Galaxy S7, S7 Edge or S7 Active smartphone received a copy of the device’s governing terms and conditions at the point of sale. (Declaration of Joy McBeth (“McBeth Decl.”) (Ex. 2 hereto), at ¶¶ 4, 10.)2 These terms and conditions included a broad Arbitration Agreement, requiring arbitration of all disputes arising in any way from the sale, condition or performance of the product on an individual basis: ALL DISPUTES WITH SAMSUNG ARISING IN ANY WAY FROM THIS LIMITED WARRANTY OR THE SALE, CONDITION OR PERFORMANCE OF THE PRODUCTS SHALL BE RESOLVED 2 There are minor variations in the presentation of the terms and conditions, depending on the wireless carrier (e.g., Sprint, AT&T, U.S. Cellular, T-Mobile, and Verizon) and model (e.g., Galaxy S7, S7 Edge and S7 Active). These minor variations are not material for purposes of this Motion. For simplicity, this Motion focuses on the terms and conditions for the Galaxy S7 Edge sold through U.S. Cellular-the specific phone purchased by Plaintiff. These same terms and conditions, including the Arbitration Agreement, are applicable to all other smartphones embraced by Plaintiff’s proposed class. Case 2:17-cv-00082-LA Filed 07/03/18 Page 8 of 28 Document 31 3 EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, AND NOT BY A COURT OR JURY. ANY SUCH DISPUTE SHALL NOT BE COMBINED OR CONSOLIDATED WITH A DISPUTE INVOLVING ANY OTHER PERSON’S OR ENTITY’S PRODUCT OR CLAIM, AND SPECIFICALLY WITHOUT LIMITATION OF THE FOREGOING, SHALL NOT UNDER ANY CIRCUMSTANCES PROCEED AS PART OF A CLASS ACTION. (Id. at ¶ 8.) Individuals had the right to opt out of arbitration, without penalty, by contacting Samsung by phone or email within 30 days of purchase. (Id. at ¶ 9.) When opting out, the consumer was not required to return the smartphone, pay a fee or give up any protections provided under the terms and conditions. (See id.) B. Samsung Provided Ample Notice of the Arbitration Agreement. The box for the S7 Edge provided express notice of the governing terms and conditions, stating “device purchase is subject to additional Samsung terms and conditions.” (McBeth Decl. at ¶ 3.) The terms and conditions, including the Arbitration Agreement and right to opt out, are prominently displayed in the “Health & Safety and Warranty Guide” (the “Guidebook”) inside the box. (Id. at ¶ 4.) The title page of the Guidebook states, in bold font: “Please read this manual before operating your device and keep it for future reference. This document contains important terms and conditions with respect to your device. By using this device, you accept those terms and conditions.” (Id. at ¶ 5.)3 On the page immediately after the title page, the right to opt out of arbitration within 30 days is clearly stated: Samsung Limited Warranty - This product is covered under the applicable Samsung Limited Warranty INCLUDING ITS DISPUTE RESOLUTION PROCEDURE and your right to opt out of arbitration within 30 calendar days of the first consumer purchase. You may opt out by either sending an email to optout@sea.samsung.com with the subject line “Arbitration Opt-Out” or by calling 1-800-SAMSUNG (726-7864). For more detailed procedures, please refer to the “Dispute Resolution Procedures and Arbitration and Opt-Out” section of the Limited Warranty. 3 The “title page” is the second physical page of the Guidebook immediately after the cover. Case 2:17-cv-00082-LA Filed 07/03/18 Page 9 of 28 Document 31 4 (Id. at ¶ 6.) The Table of Contents on the first numbered page of the Guidebook points users to a section titled “Procedures for Dispute Resolution / 30-day Arbitration and Opt-Out Policy” for the full terms of the Arbitration Agreement. (Id. at ¶ 7; see also supra Part I.A.) C. Plaintiff Opted Out of Arbitration; The Proposed Class is Comprised of Individuals Who Did Not. Following this clear process, Plaintiff opted out of arbitration by sending an email stating “30 days to opt out of arbitration clause,” along with information regarding his device. (Id. at ¶ 11; see also id., Ex. B.) But, unlike Plaintiff, most individuals who purchased or leased a Samsung S7, S7 Edge, or S7 Active did not opt out of, and are therefore bound by, the Arbitration Agreement that came with their phones. (Id. at ¶ 10.)4 Plaintiff nevertheless claims to represent a proposed class of all “persons and entities in the United States who purchased or leased a Samsung Galaxy S7, Galaxy S7 Edge, or Galaxy S7 Active.” (Compl. ¶ 36.) This proposed definition is predominantly made up of individuals who agreed to arbitrate any claims with Samsung on an individual basis and who are not Wisconsin residents. III. LEGAL STANDARD Rule 23 directs courts to address class certification “[a]t an early practicable time,” and permits them to “require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.” Fed. R. Civ. P. 4 Several courts have enforced Samsung smartphone arbitration agreements on similar facts. See, e.g., McNamara v. Samsung Telecomms. Am., LLC, No. 1:14-cv-01676, 2014 WL 5543955 (N.D. Ill. Nov. 3, 2014) (applying Seventh Circuit precedent in Hill and ProCD to enforce arbitration agreement for Galaxy S4); Schmidt v. Samsung Elecs. Am., Inc., No. C16-1725-JCC, 2017 WL 2289035, at *2 (W.D. Wash. May 25, 2017) (applying Seventh Circuit precedent in Hill to enforce arbitration agreement for Galaxy Note7); see also cf. In re Samsung Galaxy Smartphone Mktg. & Sales Practices Litig., 298 F. Supp. 3d 1285, 1296-97 (N.D. Cal. 2018) (enforcing Arbitration Agreement for all but one model of the Galaxy S7 under California and Ninth Circuit law, which had rejected Seventh Circuit authority in favor of a more demanding standard for in-the-box formation). Case 2:17-cv-00082-LA Filed 07/03/18 Page 10 of 28 Document 31 5 23(c)(1)(A), (d)(1)(D). Accordingly, “a court may deny class certification even before the plaintiff files a motion requesting certification.” Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011). A court also may strike class allegations where it is clear plaintiff’s proposed class cannot be certified. See Santangelo, 2017 WL 6039903, at *4 (striking class allegations before certification proceedings); Hill v. Wells Fargo Bank, N.A., 946 F. Supp. 2d 817, 829 (N.D. Ill. 2013) (striking class allegations under Rule 23(c)(1)(A), noting “[t]he rule’s text plainly indicates that the court may decide to reject a plaintiff’s attempt to represent a class as soon as it becomes obvious that the plaintiff will be unable to satisfy Rule 23”) (emphasis added). 5 Striking improper class allegations early in the case often can streamline and “significantly impact the scope of the remaining discovery,” “narrow[ing] the disputed issues in the case.” Santangelo, 2017 WL 6039903, at *4. IV. ARGUMENT A. Plaintiff Cannot Represent Individuals Who Agreed to Arbitrate Their Claims Against Samsung. The proposed class cannot be certified because it includes individuals who, unlike Plaintiff, agreed to individual arbitration of any disputes relating to their devices. Plaintiff cannot represent these individuals, and their claims cannot proceed as part of any proposed class under Rule 23. As an initial matter, Plaintiff lacks standing to challenge the Arbitration Agreement; but in any event, he cannot credibly challenge the Agreement because he was aware of the Agreement and exercised his contractual right to opt out of arbitration, paving the way to 5 See also King v. Capital One Bank (USA), N.A., No. 3:11-CV-00068, 2012 WL 5570624, at *13 (W.D. Va. Nov. 15, 2012) (“Although Plaintiff has not yet moved to certify a class, such motion is not required for a court to decide the certification issue when doing so is practicable and appropriate.”); Tan v. Grubhub, Inc., No. 15-CV-05128-JSC, 2016 WL 4721439, at *2 (N.D. Cal. July 19, 2016) (“A defendant may move to deny class certification before a plaintiff files a motion to certify a class.”). Case 2:17-cv-00082-LA Filed 07/03/18 Page 11 of 28 Document 31 6 file suit on behalf of himself in this court if he so chose. His opt-out did not, however, extend to the claims of the purported class. Samsung’s Motion should therefore be granted and class certification denied or Plaintiff’s class allegations stricken, just as other courts have done on similar facts. 1. Plaintiff Cannot Satisfy Adequacy, Typicality or Commonality Requirements of Rule 23(a). Rule 23 cannot be used to “abridge, enlarge or modify any substantive right” (28 U.S.C. § 2072(b)), which includes Samsung’s right to arbitrate disputes with individuals who agreed to the Arbitration Agreement. Plaintiff cannot use Rule 23 to circumvent the Arbitration Agreement or the Federal Arbitration Act by bringing suit on behalf of individuals who agreed to individual arbitration. See, e.g., King, 2012 WL 5570624, at *14 (W.D. Va. Nov. 15, 2012) (“[I]f Plaintiff did not sign the Client Agreement,” then “surely she cannot represent anyone who did sign it.”). Rather, putative class members who did not opt out of their Arbitration Agreement must pursue any claims in individual arbitrations and cannot be part of any proposed class. See Champ v. Siegel Trading Co., No. 89-7148, 1990 WL 19984, at *7 (N.D. Ill. Feb. 27, 1990) (denying class certification and explaining that “any class would have to be limited to persons who did not agree to arbitration”); Zieger, 2014 WL 7388365, at *7 (“[The law] bars those who failed to opt out of the Dispute Resolution clause from participating in Zieger’s putative class: the Dispute Resolution clause-which Zieger cannot challenge and which is presumed valid- expressly prevents borrowers from participating in class actions.”). Santangelo is directly on point. There, the plaintiff alleged that Comcast conducted an unauthorized credit check and sought to assert his claims on behalf of “all [] persons” “who were the subject of a consumer report obtained by Comcast during the ordering process.” Santangelo, 2017 WL 6039903, at *2. Comcast’s subscriber agreement contained an arbitration agreement, Case 2:17-cv-00082-LA Filed 07/03/18 Page 12 of 28 Document 31 7 but the plaintiff opted out “within thirty days of signing up” as permitted by the agreement. Id. at *1. The court observed that, although the plaintiff opted out, “each of [plaintiff’s] proposed classes [] includes subscribers who are bound by the arbitration agreement.” Id. at *2. The court struck the class allegations, finding that plaintiff “cannot satisfy Rule 23(a)’s adequacy requirement because he cannot adequately represent the interests of the putative class members who are potentially bound by Comcast’s arbitration provision.” Id. at *4. Specifically, the court concluded that plaintiff would be an inadequate representative because, having opted out of arbitration, he could not credibly argue that the arbitration agreement was inconspicuous or unenforceable. Id. at *4-5 (“Santangelo would be hard pressed to argue that subscribers somehow felt compelled to accept the arbitration provision or that it was not sufficiently noticeable to warrant enforcement.”). Similarly, in Tan, the court granted the defendant’s Rule 23 “motion to deny class certification” where the named plaintiff who had opted out of an arbitration agreement sought to represent a class of individuals who had agreed to arbitrate. 2016 WL 4721439, at *6.6 More specifically, the court held that the named plaintiff could not satisfy the adequacy, typicality or commonality requirements of Rule 23, “because [having opted out, he] is in a position unique from all but one other driver in California, his claims are not typical of the putative class 6 The court in Tan denied class certification on the defendant’s motion and before discovery was conducted because plaintiff “cannot satisfy any of the requirements of Rule 23 because he, unlike all but one other GrubHub delivery driver operating in California, opted out of the class action waiver provisions.” 2016 WL 4721439, at *2, 6. See also Zieger, 2014 WL 7388365, at *7 (striking class allegations before discovery, noting that the proposed class “cannot survive, even with discovery”). Case 2:17-cv-00082-LA Filed 07/03/18 Page 13 of 28 Document 31 8 members nor can he adequately represent the interests of those members, who are potentially bound by the arbitration and class action waiver provisions.” Id.7 Here, Plaintiff’s proposed class fails for the same reason. As in Santangelo and Tan, Plaintiff cannot satisfy any one of the adequacy, typicality or commonality requirements of Rule 23(a)-much less all three-because he, unlike the proposed class members he seeks to represent, is in the unique position of having opted out of the Arbitration Agreement to which purported class members are bound.8 2. Plaintiff Lacks Standing to Challenge the Arbitration Agreement, and Any Such Challenge Would Underscore Why Plaintiff Cannot Satisfy Rule 23(a). The Arbitration Agreement is presumed valid. See Zieger, 2014 WL 7388365, at *7 (noting that “arbitration clauses are presumed to be enforceable”). To the extent Plaintiff seeks to challenge the Arbitration Agreement, it is clear he does not have standing to do so. See id. at *4 (“[B]ecause [plaintiff] did in fact opt out of [the arbitration] clause, he lacks standing to challenge it. … [Plaintiff] cannot allege any individualized, concrete injury resulting from the Dispute Resolution clause because he is not subject to it.”). As in Zieger, Plaintiff opted out of 7 Santangelo and Tan are part of a long line of cases reaching the same conclusion: a plaintiff not bound to arbitrate cannot represent a class that includes individuals who are. See Avilez v. Pinkerton Gov’t Servs., Inc., 596 F. App’x 579 (9th Cir. 2015) (named plaintiff who was not subject to class action waiver but sought to represent a class including those subject to such a waiver failed adequacy and typicality requirements); Quinlan v. Macy’s Corporate Servs. Inc., No. 12-0737, 2013 WL 11091572 (C.D. Cal. Aug. 22, 2013) (denying class certification based in part on lack of typicality where most of class, in contrast to named plaintiff, was subject to arbitration agreement); Renton v. Kaiser Found. Health Plan, Inc., No. 00-5370, 2001 WL 1218773 (W.D. Wash. Sept. 24, 2001) (same); Champ, 1990 WL 19984, at *7 (denying class certification and explaining that “any class would have to be limited to persons who did not agree to arbitration”); see also Lim v. Helio, LLC, No. 11-9183, 2012 WL 12884439, at *3 (C.D. Cal. Apr. 18, 2012) (finding that plaintiff could not satisfy superiority because the court would expect a “multitude of individual motions to compel arbitration as class members are identified, which is likely to substantially delay resolution of this case and consume the Court’s resources”). 8 Also as in Santangelo and Tan, the class Plaintiff seeks to represent here is predominantly made up of individuals who did not opt out of arbitration. See Tan, 2016 WL 4721439, at *2; Santangelo, 2017 WL 6039903, at *2. Case 2:17-cv-00082-LA Filed 07/03/18 Page 14 of 28 Document 31 9 arbitration, and his individual claims are therefore unaffected by the Arbitration Agreement. Accordingly, he does not have standing to contest the Agreement or argue that it is unenforceable. See also Conde, 2017 WL 1508968, at *7 (concluding that plaintiffs lacked standing to challenge the arbitration provision as they “are not personally affected by the arbitration agreements at issue because they have not signed agreements that contain similar terms”); Tan, 2016 WL 4721439, at *6 (holding that plaintiff “has no standing to challenge the applicability or enforceability of the arbitration and class action waiver provisions … in light of his decision to opt-out”). Indeed, the very fact that Plaintiff effectively opted out of the Arbitration Agreement serves as proof that the Agreement is valid. Plaintiff cannot credibly argue he was compelled to accept the Arbitration Agreement or that it was not sufficiently noticeable to warrant enforcement. The court in Santangelo explained that, because the plaintiff successfully opted out, “Santangelo would be unable to assert, in any credible fashion, a number of arguments that would potentially undermine the [arbitration clause]’s enforceability.” 2017 WL 6039903, at *5. For example, the court explained that “Santangelo would be hard pressed to argue that subscribers somehow felt compelled to accept the arbitration provision or that it was not sufficiently noticeable to warrant enforcement. In fact, Comcast would cite Santangelo as a counter-example against such arguments.” Id.; see also Tan, 2016 WL 4721439, at *6 (“[Plaintiff] is not a typical or adequate representative to make applicability or enforceability arguments on behalf of the unnamed class members.”). Plaintiff is a prime example demonstrating that S7, S7 Edge, and S7 Active purchasers had notice of the Arbitration Agreement and were free to choose arbitration or not. Thus, any argument Plaintiff might make regarding the validity or enforceability of the Arbitration Case 2:17-cv-00082-LA Filed 07/03/18 Page 15 of 28 Document 31 10 Agreement would serve only to highlight that he is an inadequate representative and his claim lacks typicality. See Avilez, 596 F. App’x at 579 (“To the extent the classes and subclasses include individuals who signed class action waivers, Avilez is not an adequate representative, Fed. R. Civ. P. 23(a)(4), and her claim lacks typicality, Fed. R. Civ. P. 23(a)(3).”). 3. The Arbitration Agreement Binds Putative Class Members, and Any Challenge to that Agreement Would Require Numerous Mini-Trials Under the Laws of All 50 States. Because Plaintiff plainly cannot represent putative class members who did not opt out and does not have standing to address the validity of the Arbitration Agreement, the Court need not address issues of validity or enforceability to deny class certification or strike class allegations. Even if Plaintiff had standing to argue that, in some instances, the Arbitration Agreement may not be binding, determining which individuals are bound and which are not would require the Court to analyze the laws of all 50 states and potentially conduct tens of thousands of mini-trials, which is yet another reason Plaintiff cannot satisfy Rule 23. Regardless, under longstanding Seventh Circuit law, the Arbitration Agreement would clearly bind putative class members, as illustrated both by Plaintiff’s own awareness of the agreement and as shown below. As an initial matter, any challenge to the Arbitration Agreement would require an analysis of all 50 states’ laws, which, by itself, would defeat the requirements of Rule 23. State law governs whether parties formed an agreement to arbitrate.9 And because Plaintiff’s proposed class covers all 50 states (Compl. ¶ 36), determining whether putative class members are required to arbitrate would require the Court to analyze and apply all 50 states’ laws on contract 9 See Voorhees v. ACE Am. Ins. Co., 244 F. Supp. 3d 861, 866 (E.D. Wis. 2017) (“In deciding whether parties agreed to arbitrate an issue, courts generally use ordinary state-law principles that govern the formation of contracts to decide whether they formed an arbitration agreement.”). Case 2:17-cv-00082-LA Filed 07/03/18 Page 16 of 28 Document 31 11 formation. See, e.g., Barden v. Hurd Millwork Co., Inc., 249 F.R.D. 316, 320 (E.D. Wis. 2008) (“the law of each member’s home state governs that member’s transaction with” defendant). Thus, to address any validity challenge, the Court would need to apply the laws of all 50 states, and this is yet another reason Plaintiff cannot satisfy Rule 23. See, e.g., In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015, 1018 (7th Cir. 2002) (“No class action is proper unless all litigants are governed by the same legal rules.”); see also Lim v. Helio, LLC, No. 11-9183, 2012 WL 12884439, at *3 (C.D. Cal. Apr. 18, 2012) (plaintiff could not satisfy superiority requirement because the court would expect a “multitude of individual motions to compel arbitration as class members are identified, which is likely to substantially delay resolution of this case and consume the Court’s resources”).10 Regardless, the Arbitration Agreement would clearly be enforceable as to putative class members under longstanding precedent. The U.S. Supreme Court has long adhered to the “liberal federal policy favoring arbitration agreements.” Epic Sys. Corp. v. Lewis, --- S.Ct. ---, 2018 WL 2292444, at *5 (U.S. May 21, 2018) (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 103 S.Ct. 927, 941 (1983)). Consistent with this policy, and the Seventh Circuit’s seminal holding in Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997), putative class members who did not opt out of the Arbitration Agreement are bound to arbitrate their claims, if any, against Samsung on an individual basis. In Hill, the plaintiffs ordered a computer over the phone, which they later received in a box containing “a list of terms”-including an arbitration provision-“said to govern unless the 10 Accord Doster Lighting, Inc. v. E-Conolight, LLC, No. 12-C-0023, 2015 WL 3776491, at *20- 22 (E.D. Wis. June 17, 2015) (refusing to certify proposed class asserting warranty claims that were governed by laws of multiple states); Dolmage v. Combined Ins. Co. of Am., No. 14-cv- 3809, 2017 WL 1754772, at *6 (N.D. Ill. May 3, 2017) (“[W]hen multiple state laws need to be applied to resolve class members’ claims, certification is improper.”). Case 2:17-cv-00082-LA Filed 07/03/18 Page 17 of 28 Document 31 12 customer return[ed] the computer within 30 days.” Id. at 1148. After plaintiffs filed a lawsuit, Gateway invoked the arbitration clause. Id. The Seventh Circuit ruled for Gateway, noting the “many commercial transactions in which people pay for products with terms to follow.” Id. (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) (enforcing forum-selection clause included among three pages of terms attached to a cruise ship ticket), and ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (holding that terms inside software box bound consumers who used the software after an opportunity to read the terms and to reject them by returning the product)). In particular, the Hill court recognized the realities of modern consumer transactions and acknowledged the benefits to consumers and sellers of “accept-or-return” terms and conditions included in product packaging: Practical considerations support allowing vendors to enclose the full legal terms with their products. Cashiers cannot be expected to read legal documents to customers before ringing up sales. … Customers as a group are better off when vendors skip costly and ineffectual steps … and use instead a simple approve-or-return device. Competent adults are bound by such documents, read or unread. 105 F.3d at 1148. Wisconsin law adheres to the contract formation theory articulated in Hill-namely, that terms included in the box of a product are binding if a consumer has an opportunity to review the terms and does not reject them. See Tickanen v. Harris & Harris, Ltd., 461 F. Supp. 2d 863, 867 (E.D. Wis. 2006) (citing Hill in evaluating UCC and Wisconsin law, and explaining “where an agreement was sent with a product, including informing customers they had thirty days to return the goods if they did not agree to the terms, plaintiffs had accepted the arbitration agreement by keeping the product beyond the thirty days”); see also Ineman v. Kohl’s Corp., No. 14-CV-398- WMC, 2015 WL 1399052, at *4 (W.D. Wis. Mar. 26, 2015) (same). Case 2:17-cv-00082-LA Filed 07/03/18 Page 18 of 28 Document 31 13 Courts throughout the country have followed Hill in matters brought against Samsung and enforced Samsung arbitration agreements included in the packaging. See, e.g., McNamara, 2014 WL 5543955 at *2 (applying Hill and enforcing arbitration agreement for Galaxy S4: “In the so-called ‘shrink wrap’ cases, the Seventh Circuit has held that a party can manifest agreement to an arbitration clause even where the party does not become aware of the terms and conditions of such an agreement until after the purchase.”); Schmidt, 2017 WL 2289035, at *2 (enforcing arbitration agreement for Note7 smartphone under Washington law, and explaining that Hill is in accord). In McNamara, for example, the Northern District of Illinois applied Hill and ProCD to compel Galaxy S4 purchasers to arbitrate their claims on an individual basis against Samsung. 2014 WL 5543955, at *2. The court rejected plaintiffs’ arguments that they “were not warned about the legal consequences of the arbitration provisions and were not given a meaningful opportunity to reject” the terms. Id. The court held in McNamara that a reasonably prudent purchaser would be “expected to review” the warranty guide containing the arbitration clause inside the smartphone box, as Plaintiff did here: We are dealing with so-called “smart phones” which by their nature are extremely complicated and provide for a multitude of activities. Because of these qualities, a purchaser would be expected to review the product user guide in order to get as much out of the product as he can. The Court therefore finds that the contract between Plaintiffs and Samsung provided reasonable notice of the arbitration clause. Id. The court also held that providing “30 calendar days after purchase to reject the arbitration provision” was more than sufficient opportunity to review and reject the terms. Id. (“by taking a relatively simple act one can be excluded from the arbitration requirement”). Indeed, Plaintiff here took that “relatively simple act” of opting out of arbitration, confirming what was already apparent in light of Hill-that is, the Arbitration Agreement is valid and enforceable as to Case 2:17-cv-00082-LA Filed 07/03/18 Page 19 of 28 Document 31 14 putative class members who, unlike Plaintiff, did not opt out of arbitration. See McBeth Decl., at Ex. B (Plaintiff’s email opting out of the Arbitration Agreement); see also Santangelo, 2017 WL 6039903, at *5 (“Each of Santangelo’s proposed classes therefore includes subscribers who are bound by the arbitration provision. …”). Thus, even if Plaintiff had standing to challenge the Arbitration Agreement (he does not), Hill and its progeny dictate that members of the proposed class are subject to a valid and enforceable Arbitration Agreement covering Plaintiff’s asserted claims. As in McNamara and Schmidt, the Arbitration Agreement was included in a guidebook packaged with the smartphone, and the consumer had 30 days to review the governing terms and opt out of arbitration. (Compare supra Part I.B, with McNamara, 2014 WL 5543955, at *2 and Schmidt, 2017 WL 2289035, at *2.) A reasonably prudent smartphone purchaser would be “expected to review” the guidebook in these circumstances-just as Plaintiff did here-and use of the device without opting out constitutes assent to the governing terms, including arbitration. McNamara, 2014 WL 5543955, at *2; Schmidt, 2017 WL 2289035, at *2. The Arbitration Agreement here is even more consumer friendly than the “accept-or- return” provisions enforced by the Seventh Circuit in Hill, where the consumer had to return the computer to reject the arbitration agreement. 105 F. 3d at 1147. Here, in contrast, consumers had 30 days to review the Arbitration Agreement, and they did not have to return the smartphone or sacrifice protections of their warranty. (See supra Part I.B.) The notice provided here is also stronger than in Hill, and Plaintiff cannot dispute its adequacy-both because he does not have standing to do so (supra Part III.A.3) and also because the notice was clearly sufficient to inform him of the Arbitration Agreement, which he chose to opt out of. The consumer is also alerted to the “terms and conditions” on the outside of the box at the point of purchase, and the front of the Case 2:17-cv-00082-LA Filed 07/03/18 Page 20 of 28 Document 31 15 Guidebook inside the box explicitly tells the consumer that use of the device operates as assent to additional terms and conditions. (See supra Part I.B.) These facts were not present in Hill, and the adequacy of the notice here is further confirmed by Plaintiff’s decision to opt out within 30 days of purchasing his Galaxy S7 Edge. (See supra Part I.C.)11 * * * * * In sum, consumers who purchased or leased the S7, S7 Edge, or S7 Active and agreed to the Arbitration Agreement cannot assert claims before this Court or be members of any class. Plaintiff does not have standing to challenge the Arbitration Agreement and, in any event, cannot, consistent with Rule 23(a), represent individuals who agreed to arbitration. Because Plaintiff’s proposed class plainly includes individuals who agreed to arbitrate claims on an individual basis, class certification should be denied or Plaintiff’s class allegations should be stricken. B. This Court Also Lacks Personal Jurisdiction as to Claims Asserted on Behalf of Non-Resident Proposed Class Members. Plaintiff’s proposed class definition also should be rejected because it includes individuals who reside outside Wisconsin, who did not purchase or lease their smartphones in 11 Furthermore, although the scope of arbitrability has been expressly delegated to the arbitrator (see McBeth Decl., at ¶ 8), there can be no dispute that the Arbitration Agreement covers the claims at issue in this lawsuit. See Boehm v. Getty Images (US), Inc., No. 16-cv-311-jdp, 2016 WL 6110058, at *2 (W.D. Wis. Oct. 19, 2016) (noting the “consensus view is that reference to the AAA’s Rules in an arbitration clause reserves threshold questions of arbitrability to the arbitrator”). The Arbitration Agreement states that “ALL DISPUTES WITH SAMSUNG ARISING IN ANY WAY FROM THIS LIMITED WARRANTY OR THE SALE, CONDITION OR PERFORMANCE OF THE PRODUCTS SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, AND NOT BY A COURT OR JURY.” (McBeth Decl., at ¶ 8) The claims in the Complaint are based on allegations that “the glass covering the outward-facing camera on his Galaxy S7 Edge was shattered.” (Compl. ¶ 18.) These allegations plainly arise from the “sale, condition or performance” of the products, and are covered by the Arbitration Agreement. See McNamara, 2014 WL 5543955, at *2 (compelling arbitration of claims challenging Galaxy S4 battery performance, where agreement covered disputes “arising in any way” from “sale, condition, or performance” of the product). Case 2:17-cv-00082-LA Filed 07/03/18 Page 21 of 28 Document 31 16 Wisconsin and whose claims have no connection to Samsung’s activities in this state. Following the U.S. Supreme Court’s recent ruling in Bristol-Myers, this Court could never have personal jurisdiction over the claims of non-resident proposed class members. As a result, Plaintiff’s class allegations and proposed class definition are unsustainable. 1. This Court Must Have General or Specific Personal Jurisdiction Over the Defendant. The Supreme Court has long recognized two types of personal jurisdiction: general jurisdiction and specific jurisdiction. Bristol-Myers, 137 S. Ct. at 1780-81. A court with general jurisdiction may hear any claim against that defendant, even if all the incidents underlying the claim occurred in a different State. Id. “The threshold for general jurisdiction is high; the contacts must be sufficiently extensive and pervasive to approximate physical presence.” Tamburo v. Dworkin, 601 F.3d 693, 701 (7th Cir. 2010). A court located in a particular state may exercise “general jurisdiction” over a defendant if that defendant’s “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum state.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 317 (1945)). If a court lacks general jurisdiction over the defendant, it can exercise personal jurisdiction only through specific jurisdiction upon a showing by plaintiff that the claims arise out of, or relate to, the defendant’s contacts with the forum. “In order for a court to exercise specific jurisdiction over a claim, there must be an ‘affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.’” Bristol-Myers, 137 S. Ct. at 1773 (citation omitted). The primary focus of the personal jurisdiction analysis “is the defendant’s relationship to the forum State.” Thomas v. Ford Motor Co., 289 F. Supp. 3d 941, 944 (E.D. Wis. 2017) (quoting Bristol-Myers, 137 S.Ct. at 1779). To Case 2:17-cv-00082-LA Filed 07/03/18 Page 22 of 28 Document 31 17 exercise specific jurisdiction, “there must be an affiliation between the forum and the underlying controversy, [such as an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” SportPet Designs Inc. v. Cat1st Corp., No. 17-cv- 554, 2018 WL 1157925, at *1 (E.D. Wis. Mar. 2, 2018) (quotation marks omitted) (citing Bristol-Myers, 137 S. Ct. at 1773). “When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.” Bristol- Myers, 137 S. Ct. at 1781. 2. This Court Lacks General Personal Jurisdiction over Samsung; Specific Personal Jurisdiction is Required. Plaintiff alleges that Samsung is incorporated in New York with its headquarters in New Jersey. (Compl. ¶ 12.) Accordingly, this Court, situated in Wisconsin, cannot exercise general jurisdiction over Samsung without violating the Due Process Clause of the Fourteenth Amendment. See Thomas, 289 F. Supp. 3d at 944; see also Bristol-Myers, 137 S. Ct. at 1780-81. This Court’s jurisdiction over Samsung is therefore limited to those claims for which Plaintiff can establish specific personal jurisdiction. 3. The Supreme Court’s Decision in Bristol-Myers Confirms this Court Must Have Specific Jurisdiction Over Claims of Putative Class Members. In Bristol-Myers, the Supreme Court ruled that personal jurisdiction must exist as to the claims of each plaintiff. In considering the case before it, the Supreme Court held that a California state court lacked specific personal jurisdiction over the claims of non-resident plaintiffs against a non-resident defendant because there was no connection between the forum and the non-resident plaintiffs’ claims. Id. at 1781. The Court emphasized that, when analyzing whether a court has specific personal jurisdiction over a non-resident plaintiff’s claims against a non-resident defendant, it does not matter that the court has jurisdiction over a resident’s claims, even if those claims are identical to the claims brought by the non-resident. Id. at 1781-82. In Case 2:17-cv-00082-LA Filed 07/03/18 Page 23 of 28 Document 31 18 particular, allowing non-resident plaintiffs who were injured outside the forum to aggregate their claims with in-forum residents would violate the defendant’s protections under the Fourteenth Amendment’s due process clause. See id. Accordingly, specific personal jurisdiction requires an independent and adequate link between the forum and the non-resident’s claims. Id. at 1781. Although Bristol-Meyers did not involve a class action, every court in the Seventh Circuit that has considered the issue has ruled that Bristol-Myers applies to claims asserted on behalf of putative class members. In Practice Management Support Services., Inc. v. Cirque du Soleil, Inc., for example, the Northern District of Illinois concluded that Bristol-Myers requires personal jurisdiction with respect to the claims of unnamed class members. No. 14-cv-2032, 2018 WL 1255021, at *16-19 (N.D. Ill. Mar. 12, 2018). Practice Management emphasized the Supreme Court’s well-established view on class actions that “Rule 23’s requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act, which instructs that the [federal court] rules of procedure ‘shall not abridge, enlarge, or modify any substantive right.’” Id. (quoting Amchem Prods., Inc. v. Windsor, 117 S.Ct. 2231 (1997)).12 The court concluded that “[u]nder the Rules Enabling Act, a defendant’s due process interest should be the same in the class context” and require personal jurisdiction over the claims of putative class members. Practice Mgmt., 2018 WL 1255021 at *18-19. Indeed, the court noted that it was “not clear how [a plaintiff] can distinguish the Supreme Court’s basic holding in Bristol-Myers simply because this is a class action.” Id. at *16. Other courts in the Seventh Circuit have uniformly agreed. See Alcon Labs. (Ex. A) at pp.5-9; Chavez v. Church & Dwight Co., Inc., No. 17-cv-1948, 2018 WL 2238191, at *11 (N.D. 12 The Rules Enabling Act of 1934 provides that the “Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in” federal courts as long as such rules do not “abridge, enlarge, or modify any substantive right.” 28 U.S.C. § 2072. Case 2:17-cv-00082-LA Filed 07/03/18 Page 24 of 28 Document 31 19 Ill. May 16, 2018) (“Bristol-Myers extends to class actions, and that [plaintiff] is therefore foreclosed from representing either a nationwide and multistate class comprising non-Illinois residents in this suit.”); Anderson v. Logitech, Inc., No. 17-C-6104, 2018 WL 1184729, at *1 (N.D. Ill. Mar. 7, 2018) (striking nationwide class allegations under Bristol-Myers); DeBernardis v. NBTY, Inc., No. 17-cv-6125, 2018 WL 461228, at *2 (N.D. Ill. Jan. 18, 2018) (holding that Bristol-Myers applies “to outlaw nationwide class actions … where there is no general jurisdiction over the Defendants”); McDonnell v. Nature’s Way Prod., LLC, No. 16-cv-5011, 2017 WL 4864910, at *4-5 (N.D. Ill. Oct. 26, 2017) (applying Bristol-Myers to class actions).13 As in Practice Management, Plaintiff’s proposed class cannot be certified because it covers individuals who could not bring these claims directly against Samsung in this forum. Following Bristol-Myers and the many decisions from this Circuit applying it to class actions, Plaintiff’s proposed class definition cannot be certified under Rule 23 because it is not limited to class members with claims connected to Samsung’s conduct in Wisconsin. Indeed, the proposed class expressly extends to all “persons and entities in the United States” who have purchased or leased an applicable smartphone without geographic limitation. (Compl. at ¶ 36.) Because this 13 Other courts that have applied Bristol-Myers in the class action context include Maclin v. Reliable Reports of Texas, Inc., No. 1:17-CV-2612, 2018 WL 1468821 (N.D. Ohio Mar. 26, 2018); Wenokur v. AXA Equitable Life Ins. Co., No. CV-17-000165-PHX-DLR, 2017 WL 4357916 (D. Ariz. Oct. 2, 2017); In Re Dental Supplies Antitrust Litig., 16 Civ. 696 (BMC) (GRB), 2017 WL 4217115 (E.D.N.Y. Sept. 20, 2017); Spratley v. FCA US LLC, No. 3:17-CV- 0062, 2017 WL 4023348 (N.D.N.Y. Sept. 12, 2017); Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., No. 16-665, 2017 WL 3129147 (E.D. Pa. July 24, 2017). A few courts outside of the Seventh Circuit have declined to apply Bristol-Myers to class actions. See In re Morning Song Bird Food Litig., Lead Case No. 12-cv-01592 JAH-AGS, 2018 WL 1382746 (S.D. Cal. Mar. 19, 2018); Casso’s Wellness Store & Gym, L.L.C. v. Spectrum Lab. Prods., Inc., No. 17-2161, 2018 WL 1377608 (E.D. La. Mar. 19, 2018); Day v. Air Methods. Corp., No. 5:17- 183-DCR, 2017 WL 4781863 (E.D. Ky. Oct. 23, 2017); Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., No. 17-cv-00564 NC, 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017). But courts in the Seventh Circuit have considered and rejected the reasoning of these decisions as contrary to the basic holding of Bristol-Myers. See Chavez, 2018 WL 2238191, at *10 (“Nothing in Bristol- Myers suggests its basic holding is inapplicable to class actions.”). Case 2:17-cv-00082-LA Filed 07/03/18 Page 25 of 28 Document 31 20 proposed class plainly would include class members who neither reside in Wisconsin nor purchased or leased their smartphones in Wisconsin, it overreaches. Accordingly, the Court should deny class certification or strike the class allegations and proposed class definition. * * * * * There is no reason to wait to strike Plaintiff’s class allegations or deny certification. A proposed class that cannot be certified should be rejected “[a]t an early practicable time.” Fed. R. Civ. P. 23(c)(1)(A). Discovery is not needed to decide these issues. See Kasalo, 656 F.3d at 563 (“a court may deny class certification even before the plaintiff files a motion requesting certification”); Hill, 946 F. Supp. 2d at 829 (striking class allegations “as soon as it becomes obvious” plaintiff cannot satisfy Rule 23). Plaintiff’s inadequacy to represent those who did not opt out of the Arbitration Agreement and the impact of Bristol-Meyers on the proposed nationwide class definition are legal issues that additional discovery will not change. See Conde, 223 F. Supp. 3d at 958 (“Plaintiffs do not dispute that they did not sign an arbitration agreement, while other individuals did. Thus, the Court concludes that additional discovery is not required to decide the merits of Defendants’ motion.”); Anderson, 2018 WL 1184729, at *1 (striking class allegations before discovery based on decisions applying Bristol-Meyers to nationwide class allegations); Tan, 2016 WL 4721439, at *6 (denying class certification on defendant’s motion and before discovery was conducted). In other words, the proposed class “as currently defined by [Plaintiff], cannot survive, even with discovery.” Zieger, 2014 WL 7388365, at *7. The Court should therefore reject Plaintiff’s improper class allegations now to avoid an unnecessarily broad scope of discovery on claims that could never be asserted in this forum. See Santangelo, 2017 WL 6039903, at *3 (“This Case 2:17-cv-00082-LA Filed 07/03/18 Page 26 of 28 Document 31 21 is just such an instance, because the factual record is sufficient to decide the motion, and the Court’s determination will significantly impact the scope of the remaining discovery in the case.”). V. CONCLUSION Plaintiff’s proposed class, defined in the Complaint, cannot be certified because it improperly includes putative class members who (a) agreed to arbitrate claims against Samsung on an individual basis, and (b) are non-residents who could not sue Samsung directly in this forum. On this basis, Samsung respectfully requests the Court deny class certification or strike Plaintiff’s class allegations and class definition. DATED: July 3, 2018 Respectfully submitted, s/ Francis A. Citera Francis A. Citera Brett M. Doran Greenberg Traurig, LLP 77 West Wacker Drive, Suite 3100 Chicago, IL 60601 Phone: (312) 456-8400 Fax: (312) 456-8435 citeraf@gtlaw.com doranb@gtlaw.com Richard A. Edlin MetLife Building 200 Park Avenue New York, NY 10166 Phone: (212) 801-9200 Fax: (212) 801-6400 edlinr@gtlaw.com David E. Sellinger Yangho C. Shin 500 Campus Drive, Suite 400 Florham Park, NJ 07932 Phone: (973) 360-7900 Fax: (973) 301-8410 sellingerd@gtlaw.com shinc@gtlaw.com Attorneys for Defendant Samsung Electronics America, Inc. Case 2:17-cv-00082-LA Filed 07/03/18 Page 27 of 28 Document 31 22 CERTIFICATE OF SERVICE I hereby certify that on July 3, 2018, I electronically filed the foregoing Memorandum of Law in Support of Defendant Samsung Electronics America, Inc.’s Motion to Deny Class Certification or Strike Class Allegations with the Clerk of Court for the United States District Court for the Eastern District of Wisconsin by using the Electronic Court Filing System (“CM/ECF”). I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. s/ Francis A. Citera Case 2:17-cv-00082-LA Filed 07/03/18 Page 28 of 28 Document 31