holding that authors having different levels of damages did defeat class certificationSummary of this case from Gitman v. Pearson Educ., Inc.
December 20, 2001.
Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about May 2, 2001, which granted plaintiffs' motion for class action certification, unanimously affirmed, with costs.
SANFORD P. DUMAIN, for plaintiffs-respondents.
SLADE R. METCALF, for defendant-appellant.
Before: Tom, J.P., Andrias, Ellerin, Wallach, JJ.
The motion court properly granted plaintiffs' motion for class action certification. Plaintiffs, authors with publishing contracts with defendant Harper Collins Publishers, Inc., allege causes against Harper Collins for breach of contract, breach of implied covenant of good faith and fair dealing and seeking an accounting. Essentially, plaintiffs assert Harper Collins has improperly engaged in selling quantities of its books on a non-returnable basis to its foreign affiliates, at below-market prices. Thus, according to plaintiffs, since Harper Collins and its foreign affiliates all have the same parent company, and since all of the contracts between authors and Harper Collins require that calculations of royalties to such authors be based on amounts "received" by Harper Collins, Harper Collins is essentially selling books to itself, at discounted rates, upon which it then calculates the author's royalty, and then Harper Collins shares in the extra profit when the book is resold to the consumer by the foreign affiliates, without paying the author any further royalty.
The statute providing for class action certification (CPLR 901) should be liberally construed (Pruitt v. Rockerfeller Ctr. Props., 167 A.D.2d 14, 21; Brandon v. Chefetz, 106 A.D.2d 162, 168-169). Here, it is uncontested that the class is so numerous that joinder is impracticable. Contrary to defendant's contention, the questions of law and fact involved in plaintiffs' claim are common to the class as a whole and predominate over questions affecting only individual members (compare, Banks v. Carroll Graf Publ., Inc., 267 A.D.2d 68). That individual authors may have different levels of damages does not defeat class certification (see, Broder v. MBNA Corp., 281 A.D.2d 369;Godwin Realty Assocs. v. CATV Enters., Inc., 275 A.D.2d 269, 270;Weinberg v. Hertz Corp., 116 A.D.2d 1, 6-7, affd 69 N.Y.2d 979). Class certification, under the circumstances presented here, is also appropriate since the damages suffered by many individual authors would likely be insufficient to warrant their institution of separate suits (see, Weinberg v. Hertz Corp., supra). Finally, although plaintiff Englade's potential damages may not exceed the amount already paid to him as an advance, it is clear that he has adequately alleged damages attributable to the complained of contractual breaches by Harper Collins (see, Berwecky v. Bear Stearns Co., 197 FRD 65, 71, n9).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.