Sanford v. MemberWorks, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PATRICIA SANFORD, on behalf of 
herself and all others similarly
situated,
Plaintiff-Appellant,
PRESTON SMITH; RITA SMITH, on
behalf of themselves and all others
similarly situated,
Plaintiff-intervenors-Appellants, No. 09-55502
v. D.C. No.
MEMBERWORKS, INC., a Delaware  3:02-cv-00601-
MMA-AJB
corporation, AKA MWI Essentials,
AKA MWI Home and Garden, OPINION
AKA MWI Connections, AKA
MWI Valuemax; WEST
CORPORATION, a Delaware
corporation; WEST TELEMARKETING
CORPORATION, a Delaware
corporation,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding

Argued and Submitted
May 6, 2010—Pasadena, California

Filed October 25, 2010

17489
17490 SANFORD v. MEMBERWORKS, INC.
Before: Diarmuid F. O’Scannlain and Richard C. Tallman,
Circuit Judges, and Frederic Block, Senior District Judge.*

Opinion by Judge O’Scannlain

*The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
17492 SANFORD v. MEMBERWORKS, INC.

COUNSEL

Eric A. Isaacson, Robbins, Geller, Rudman & Dowd LLP,
San Diego, California, argued the cause for the plaintiffs-
appellants and filed briefs. Patrick J. Coughlin, Frank J. Jana-
 SANFORD v. MEMBERWORKS, INC. 17493
cek, Christopher Collins, and Amanda M. Frame, Robbins,
Geller, Rudman & Dowd LLP, San Diego, California; Jack
Landskroner, Landskroner Grieco Madden, LLC, Cleveland,
Ohio; and Artie Baran, Law Offices of Artie Baran APC, San
Diego, California, were also on the briefs.

Darrel J. Hieber, Skadden, Arps, Slate, Meagher & Flom
LLP, Los Angeles, California, argued the cause for the
defendants-appellees and filed a brief. Robert J. Herrington
and Jennifer E. LaGrange, Skadden, Arps, Slate, Meagher &
Flom LLP, Los Angeles, California, were also on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether consumers can pursue claims
against a company that allegedly deceived them into buying
memberships in a discount club.

I

A

In response to a television advertisement, Patricia Sanford
purchased Tae-Bo fitness tapes over the phone in February
1999. West Corporation (“West”) operated the call center that
received Sanford’s call. Pursuant to West’s joint marketing
agreements with MemberWorks, Inc. (“MWI”),1 a West oper-
ator read Sanford the following sales script in an effort to “up-
sell” a membership in the “MemberWorks Essentials”
program:

Mr(s). _____, for purchasing Tae-Bo today, we’re
1
MWI has since changed its name to Vertrue, Inc.
17494 SANFORD v. MEMBERWORKS, INC.
sending you a risk-FREE 30-day membership to
ESSENTIALS, a service designed to SAVE YOU
20% from leading stores such as EXPRESS and
FLORSHEIM, plus reward savings at VICTORIA’S
SECRET, TJ MAXX, PIER ONE and TARGET,
PLUS additional savings on eyewear, beauty prod-
ucts, haircuts, and more! After 30 days, the service
is extended to a full year for just $6 a month, billed
annually in advance to the credit card you’re using
today. If you want to cancel, just call the toll-free
number that appears in your kit in the first 30 days
and YOU WON’T BE BILLED. So look for that kit
in the mail, OKAY?

Sanford had no recollection of hearing the script, agreeing to
the free trial membership, or receiving the membership kit in
the mail. Because she did not cancel her trial membership, her
credit card was charged a $72 annual membership fee in
March 1999. In January 2000, her credit card was charged an
$84 renewal fee.

Preston and Rita Smith had a similar experience after pur-
chasing various so-called “bait products” over the phone,
including Tae-Bo videos, Nad’s hair removal products, and
Tai Vital Basics. The Smiths alleged that they were also read
the sales script and, without their knowledge or consent,
billed repeatedly for their membership in MemberWorks
Essentials. They did not, however, allege whether it was Pres-
ton or Rita who placed each particular phone call.

B

On March 28, 2002, Sanford filed a putative class action
against MWI2 asserting a claim for violation of the federal
2
Sanford also named West as a defendant, but the district court dis-
missed all of her claims against West, and we affirmed the dismissal in a
prior appeal. See Sanford v. MemberWorks, Inc., 483 F.3d 956, 965 (9th
Cir. 2007). The claims against West are not at issue in this appeal.
 SANFORD v. MEMBERWORKS, INC. 17495
Unordered Merchandise Statute, 39 U.S.C. § 3009, as well as
state-law claims for conversion, unjust enrichment, and fraud.
The district court granted MWI’s motion to compel arbitration
of Sanford’s individual claims and dismissed the class claims
as moot. After the arbitrator found for MWI on all claims
except for Sanford’s claim for restitution under the Unordered
Merchandise Statute, the district court granted MWI’s motion
to confirm the arbitration award and denied the Smiths’
motion to intervene as alternative named plaintiffs. We
vacated the district court’s orders and remanded in Sanford v.
MemberWorks, Inc., 483 F.3d 956 (9th Cir. 2007).

On remand, MWI abandoned its efforts to go to arbitration.
Sanford filed a First Amended Complaint, which added the
Smiths as named plaintiffs and added a claim for violation of
the Electronic Fund Transfer Act (“EFTA”), 15 U.S.C. § 1693
et seq. MWI filed a motion to dismiss, but before the district
court ruled on the motion, Sanford and the Smiths (collec-
tively, “Plaintiffs”) moved for leave to file a Second
Amended Complaint on the ground that certain “ministerial”
revisions were required to effectuate a settlement in a state-
court action Sanford had filed against West. Although the dis-
trict court granted leave to amend the complaint to avoid any
impediment to the settlement, it dismissed the federal claims
with prejudice and the state-law claims without prejudice but
without leave to amend.

Plaintiffs then filed an ex parte application for leave to file
a motion for reconsideration. For the first time, they asserted
that “the facts alleged demonstrate that the fraudulent telemar-
keting practices at issue support a claim of RICO [Racketeer
Influenced and Corrupt Organizations Act] violations.”
Although the district court expressed doubt as to whether the
facts supported a RICO claim, it granted the motion in part,
allowing Plaintiffs to file a motion for leave to amend their
complaint that “should demonstrate on its face why amend-
ment would not be futile.”
17496 SANFORD v. MEMBERWORKS, INC.
Plaintiffs filed a proposed Third Amended Complaint,
which not only included new RICO claims, but also added
two new plaintiffs and realleged claims that had been dis-
missed with prejudice. MWI moved ex parte to dismiss or, in
the alternative, to strike the realleged claims and new plain-
tiffs. The district court granted the motion to strike and held
that it would assess only the new RICO claims in the pro-
posed Third Amended Complaint. As to those claims, the dis-
trict court denied leave to amend, holding that amendment
would be futile and that Sanford no longer had standing
because she had settled all of her claims in the state-court
action. The district court entered judgment in favor of MWI,
and this appeal timely followed.

II

We consider first whether the district court properly dis-
missed Sanford from the action for lack of standing.3

[1] “Mootness [is] the doctrine of standing set in a time
frame: The requisite personal interest that must exist at the
commencement of the litigation (standing) must continue
throughout its existence (mootness).” U.S. Parole Comm’n v.
Geraghty, 445 U.S. 388, 397 (1980) (internal quotation marks
omitted). “Generally, when a party settles all of his personal
claims before appeal, an appeals court must dismiss the
appeal as moot unless that party retains a personal stake in the
case that satisfies the requirements of Article III.” Smith v. T-
Mobile USA, Inc., 570 F.3d 1119, 1122 (9th Cir. 2009). “In
3
Sanford contends that we need not consider whether she continues to
have standing because the Smiths have standing, and “[i]n a class action,
standing is satisfied if at least one named plaintiff meets the requirements”
of Article III. Lowden v. T-Mobile USA, Inc., 512 F.3d 1213, 1215 n.1 (9th
Cir. 2008). Because the district court did not rule on class certification,
however, this action consists of Sanford’s individual claims and the
Smiths’ individual claims, which arise out of different facts. To bring her
individual claims, Sanford must satisfy the jurisdictional requirements of
Article III independently of the Smiths.
 SANFORD v. MEMBERWORKS, INC. 17497
order to retain . . . a ‘personal stake,’ a class representative
cannot release any and all interests he or she may have had
in class representation through a private settlement agree-
ment.” Narouz v. Charter Commc’ns, LLC, 591 F.3d 1261,
1264 (9th Cir. 2010).

In the state-court action against West, Sanford entered into
a settlement agreement in which she agreed to relinquish “any
claims arising out of or that could have arisen out of the alle-
gations set forth” in her state-court case.4 Because her claims
against MWI in this action arise out of the same allegations
in her state-court case against West, see West Corp. v. Sup.
Ct., 11 Cal. Rptr. 3d 145, 149-50 (Ct. App. 2004) (describing
the allegations), she has indeed relinquished them.

[2] Sanford nevertheless contends that she retains a per-
sonal stake in this action in the form of shifting litigation
costs and fees to putative class members. We disagree.
Included within the scope of the claims expressly released by
the settlement agreement are “all claims, . . . whether class,
individual, or otherwise, including any claim for costs,
expenses, pre or post judgment interest, penalties, fees
(including attorneys’ fees, expert fees and consulting fees) . . .
for any kind of relief whatsoever (including injunctive relief,
monetary relief, damages, punitive damages, restitution, reim-
bursement, disgorgement, and economic injury).” Based on
this broad language, we conclude that Sanford has bargained
away not only her individual claims against MWI, but also
any claim for fees or costs in this action. Sanford “ha[s]
retained no interest in shifting the costs of litigation, and thus,
4
The only claims expressly excluded from the release are claims
“against any non-West entity (specifically including MWI) relating to
enrollment in one or more upsells that are outside of” the joint marketing
agreements at issue in Sanford’s state-court action. Notably, the settlement
agreement does not purport to release claims against MWI arising out of
the same joint marketing agreements, and indeed required Sanford to seek
dismissal in this action of “any allegations and claims against any party,
including MWI, relating to or seeking recovery for” such claims.
17498 SANFORD v. MEMBERWORKS, INC.
[her] case is plainly moot.” Pettrey v. Enter. Title Agency,
Inc., 584 F.3d 701, 705 (6th Cir. 2009). Because Sanford no
longer has any cognizable interest in the suit, she must be dis-
missed from the appeal. See Molski v. Evergreen Dynasty
Corp., 500 F.3d 1047, 1056 (9th Cir. 2007) (per curiam).

There is no contention that the claims of the other named
plaintiffs, the Smiths, have been satisfied. Therefore, we con-
clude that the Smiths may continue in this suit, and we pro-
ceed to the merits of the Smiths’ claims only.

III

We next consider whether the district court erred in deny-
ing the Smiths’ motion for leave to amend the complaint to
add claims alleging violations of RICO, 18 U.S.C. § 1962(c)
and (d). Where, as here, the district court denies leave to
amend on futility grounds, we will uphold such denial if “it
is clear, upon de novo review, that the complaint would not
be saved by any amendment.” Leadsinger, Inc. v. BMG Music
Publ’g, 512 F.3d 522, 532 (9th Cir. 2008).

A

[3] Under RICO, it is “unlawful for any person employed
by or associated with any enterprise engaged in, or the activi-
ties of which affect, interstate or foreign commerce, to con-
duct or participate, directly or indirectly, in the conduct of
such enterprise’s affairs through a pattern of racketeering
activity or collection of unlawful debt.” 18 U.S.C. § 1962(c).
“To state a claim under § 1962(c), a plaintiff must allege (1)
conduct (2) of an enterprise (3) through a pattern (4) of racke-
teering activity. “ Odom v. Microsoft Corp., 486 F.3d 541,
547 (9th Cir. 2007) (en banc). A “ ‘pattern’ . . . requires at
least two acts of racketeering activity.” 18 U.S.C. § 1961(5).
“ ‘[R]acketeering activity’ is any act indictable under several
provisions of Title 18 of the United States Code, and includes
 SANFORD v. MEMBERWORKS, INC. 17499
the predicate acts of mail fraud, wire fraud and obstruction of
justice.” Turner v. Cook, 362 F.3d 1219, 1229 (9th Cir. 2004).

[4] In the proposed Third Amended Complaint, the Smiths
alleged the predicate acts of wire and mail fraud, including
the reading of deceptive sales scripts over the telephone and
the mailing of deceptive membership kits. Wire or mail fraud
consists of the following elements: (1) formation of a scheme
or artifice to defraud; (2) use of the United States mails or
wires, or causing such a use, in furtherance of the scheme;
and (3) specific intent to deceive or defraud. Schreiber Dis-
trib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1400 (9th
Cir. 1986). Federal Rule of Civil Procedure 9(b) provides that
“[i]n alleging fraud . . . , a party must state with particularity
the circumstances constituting fraud,” while “[m]alice, intent,
knowledge, and other conditions of a person’s mind may be
averred generally.” Consequently, “[t]he only aspects of wire
[or mail] fraud that require particularized allegations are the
factual circumstances of the fraud itself.” Odom, 486 F.3d at
554.

“Rule 9(b) demands that the circumstances constituting the
alleged fraud be specific enough to give defendants notice of
the particular misconduct . . . so that they can defend against
the charge and not just deny that they have done anything
wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th
Cir. 2009) (internal quotation marks omitted). “Any aver-
ments which do not meet that standard should be ‘disre-
garded,’ or ‘stripped’ from the claim for failure to satisfy Rule
9(b).” Id. Accordingly, “[t]o avoid dismissal for inadequacy
under Rule 9(b), [the] complaint would need to state the time,
place, and specific content of the false representations as well
as the identities of the parties to the misrepresentation.”
Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir.
2004) (internal quotation marks omitted).

[5] The Smiths failed to allege which of them made any of
the telephone calls to purchase the various bait products and,
17500 SANFORD v. MEMBERWORKS, INC.
thus, who was a party to the alleged misrepresentations. At
oral argument, their counsel conceded that the Smiths had no
recollection of who made the calls. While we have occasion-
ally relaxed the particularity requirement where “plaintiffs
cannot be expected to have personal knowledge of the rele-
vant facts,” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir.
1993), here, it is not unreasonable to expect the Smith who
placed the phone calls to have personal knowledge of the rele-
vant facts. We therefore conclude that the Smiths cannot sat-
isfy Rule 9(b)’s particularity requirement with respect to their
claims of wire fraud. See Moore v. Kayport Package Express,
Inc., 885 F.2d 531, 540 (9th Cir. 1989) (holding that a com-
plaint did not satisfy Rule 9(b) because it “d[id] not specify
which plaintiff received which prospectus, or which plaintif-
f(s) made purchases through the stockbroker defendants”
(emphases added)).5

[6] As to mail fraud, the proposed Third Amended Com-
plaint generally alleges that MWI mailed membership kits to
consumers after they called to purchase the bait products, and
that such kits were designed to look like junk mail so that
consumers would unwittingly throw them away without can-
celing their memberships. However, because the Smiths failed
to allege any specific mailings, they once again failed to sat-
isfy Rule 9(b)’s particularity requirement. See Lancaster
Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397,
405 (9th Cir. 1991).

[7] The Smiths cannot make any additional factual allega-
tions to supplement their deficient RICO claims without con-
ducting discovery. Although in some cases, discovery may be
appropriate where evidence of fraud is exclusively in the
defendant’s possession, see United States ex rel. Lee v. Smith-
5
Because we conclude that the failure to plead who placed the telephone
calls was insufficient under Rule 9(b), we need not decide whether the
failure to allege the identity of the telemarketing entity that took the calls
or the bait products purchased in each transaction was also insufficient.
 SANFORD v. MEMBERWORKS, INC. 17501
Kline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001),
here, the deficiencies stem from the Smiths’ inability to
remember phone calls they made or mailings they received.
Because no amendment would allow the Smiths to plead the
factual circumstances of the alleged fraud with the requisite
level of particularity, we conclude that the district court did
not err in denying as futile the Smiths’ motion for leave to
amend the complaint to add a RICO claim under section
1962(c).

B

Section 1962(d) of RICO provides that “[i]t shall be unlaw-
ful for any person to conspire to violate any of the provisions
of subsection (a), (b), or (c) of this section.” 18 U.S.C.
§ 1962(d). “Plaintiffs cannot claim that a conspiracy to violate
RICO existed if they do not adequately plead a substantive
violation of RICO.” Howard v. Am. Online Inc., 208 F.3d
741, 751 (9th Cir. 2000). Because we conclude that the sec-
tion 1962(c) claim cannot be saved by amendment, it follows
that the section 1962(d) claim also cannot be saved. Denial of
leave to amend the complaint to add this claim was therefore
proper.

IV

[8] We next consider whether the district court erred in
dismissing the claims under the Unordered Merchandise Stat-
ute on the ground that the membership kits were not “merchan-
dise.”6 The statute prohibits “the mailing of unordered
6
MWI argues that we should affirm the district court on the alternative
ground that there is no private right of action under the Unordered Mer-
chandise Statute. Although we recognized such a private right of action in
Kipperman v. Academy Life Insurance Co., 554 F.2d 377 (9th Cir. 1977),
MWI contends that an intervening Supreme Court decision, Alexander v.
Sandoval, 532 U.S. 275 (2001), has undermined the rationale of Kipper-
man. See Wisniewski v. Rodale, 510 F.3d 294, 308 (3d Cir. 2007) (deem-
17502 SANFORD v. MEMBERWORKS, INC.
merchandise,” which is defined as “merchandise mailed with-
out the prior expressed request or consent of the recipient.” 39
U.S.C. § 3009(a), (d). But it does not define “merchandise.”
When interpreting a statute, we must give its terms “their
ordinary and plain meaning,” and may follow the common
practice of consulting dictionaries to determine how the terms
were defined at the time the statute was adopted. Johnson v.
Aljian, 490 F.3d 778, 780 (9th Cir. 2007). The Unordered
Merchandise Statute was enacted as part of the Postal Reorga-
nization Act of 1970, Pub. L. No. 91-375, 84 Stat. 749 (1970).
Accordingly, it is appropriate to turn to the Black’s Law Dic-
tionary edition that was current in 1970. There, “merchan-
dise” is defined as “[a]ll commodities which merchants usu-
ally buy and sell, whether at wholesale or retail; wares and
commodities such as are ordinarily the objects of trade and
commerce.” Black’s Law Dictionary 1138 (4th ed. 1951).
“Commodities” are “[m]ovable articles of value; things that
are bought and sold.” Id. at 342. “Merchandise,” therefore,
refers to movable articles of value that are bought and sold by
merchants.

[9] But MWI did not sell membership kits; it sold member-
ships. The membership kits were merely incidental to the sale
of the memberships, providing prospective members with
instructions on how to use their free trial memberships (i.e.,
by “contact[ing] defendant MWI either by telephone or via

ing Kipperman “inconsistent” with Sandoval). Therefore, MWI invites us
to overrule Kipperman. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc) (holding that a three-judge panel may overrule another
three-judge panel “where intervening Supreme Court authority is clearly
irreconcilable with our prior circuit authority”).
We decline the invitation. “The question whether a [private] cause of
action exists is not a question of jurisdiction, and therefore may be
assumed without being decided.” Burks v. Lasker, 441 U.S. 471, 476 n.5
(1979). Because we dispose of the Unordered Merchandise Statute claim
on other grounds, we leave the question of Kipperman’s continuing vital-
ity for another day.
 SANFORD v. MEMBERWORKS, INC. 17503
the Internet, and obtain[ing] certificates through MWI”). The
membership kits were therefore informational materials, not
valuable objects of trade. The Smiths conceded as much when
they alleged in the proposed Third Amended Complaint that
the membership kits “are mailed out bulk rate indicating the
lack of value of the material.” (emphasis added).

[10] Nor are the memberships themselves merchandise.
While they provided members with an opportunity to buy
merchandise at a discount, such intangible opportunities are
not in themselves merchandise. See Weinberg v. City of Chi-
cago, 310 F.3d 1029, 1035 (7th Cir. 2002) (“Merchandise is
generally considered as any tangible item held out for sale.”
(emphasis added)); cf. Walton v. United Consumers Club,
Inc., 786 F.2d 303, 304 (7th Cir. 1986) (“The United Con-
sumers Club sells both memberships and merchandise. Those
who purchase memberships then may buy the merchandise.”).

[11] Because nothing MWI allegedly mailed to the Smiths
fits within the definition of “merchandise,” we conclude that
the district court properly dismissed their claims under the
Unordered Merchandise Statute.

V

The Smiths next argue that the district court erred in dis-
missing the EFTA claims.

[12] The EFTA creates a “framework [of] rights, liabili-
ties, and responsibilities of participants in electronic fund
transfer systems.” 15 U.S.C. § 1693(b). The Act applies to
electronic fund transfers from a “consumer account,” which is
defined as a “demand deposit, savings deposit, or other asset
account.” Id. § 1693a(2). Consequently, it does not apply to
credit-based transactions. Cf. Bass v. Stolper, Koritzinsky,
Brewster & Neider, S.C., 111 F.3d 1322, 1328 (7th Cir. 1997)
(noting that the EFTA governs “electronic cash transactions”
and is “void of any credit reference or requirement”). The
17504 SANFORD v. MEMBERWORKS, INC.
Smiths concede that only their credit cards were charged by
MWI, and that the EFTA is therefore inapplicable to their
transactions with MWI. They nevertheless contend that they
should be allowed to represent putative class members whose
debit cards were charged.

[13] When a named plaintiff has no cognizable claim for
relief, “she cannot represent others who may have such a
claim, and her bid to serve as a class representative must fail.”
Lierboe v. State Farm Mut. Auto Ins. Co., 350 F.3d 1018,
1022 (9th Cir. 2003); see also Boyle v. Madigan, 492 F.2d
1180, 1182 (9th Cir. 1974) (“Until [the named plaintiffs] can
show themselves aggrieved in the sense that they are entitled
to the relief sought, there is no occasion for the court to wres-
tle with the problems presented in considering whether the
action may be maintained on behalf of the class.”). Here,
because the Smiths lack a cognizable EFTA claim, dismissal
of their individual claims was proper, and they cannot repre-
sent an EFTA class.

The Smiths contend that even if they cannot represent an
EFTA class, the district court should have permitted a debit
purchaser to intervene to represent the class.7 However,
where, as here, the original named plaintiffs fail to state a
cognizable claim from the outset, intervention is not required.
See Lierboe, 350 F.3d at 1023; see also Lidie v. California,
478 F.2d 552, 555 (9th Cir. 1973) (“[W]here the original
plaintiffs were never qualified to represent the class, a motion
to intervene represents a back-door attempt to begin the action
anew, and need not be granted.”).

VI

[14] Finally, the Smiths argue that the district court erred
7
Although no motion to intervene was ever filed, the district court noted
that it “would not grant a motion to intervene at this point even if the pro-
ceedings were stayed to allow such a motion to be filed.”
 SANFORD v. MEMBERWORKS, INC. 17505
in declining to exercise supplemental jurisdiction over their
state-law claims. A district court “may decline to exercise
supplemental jurisdiction” if it “has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
“[I]n the usual case in which all federal-law claims are elimi-
nated before trial, the balance of factors to be considered
under the pendent jurisdiction doctrine—judicial economy,
convenience, fairness, and comity—will point toward declin-
ing to exercise jurisdiction over the remaining state-law
claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
n.7 (1988), superseded on other grounds by statute as recog-
nized in Fent v. Okla. Water Res. Bd., 235 F.3d 553, 557
(10th Cir. 2000). Because we conclude that the district court
properly dismissed all of the federal-law claims and the bal-
ance of factors does not tip in favor of retaining the state-law
claims,8 we cannot say that the district court abused its discre-
tion in dismissing the state-law claims without prejudice.

VII

For the foregoing reasons, the judgment of the district court
is

AFFIRMED.

8
Indeed, these state-law claims have already been re-filed by the Smiths
and numerous putative class members in various states, making any exer-
cise of supplemental jurisdiction at this point a waste of judicial resources.
See In re Vertrue Inc. Mktg. & Sales Practices Litig., No. 09-75000, 2010
WL 1539976, at *1 (N.D. Ohio Apr. 16, 2010) (listing actions consoli-
dated by the Judicial Panel on Multidistrict Litigation), appeal docketed,
No. 10-3928 (6th Cir. Aug. 5, 2010).