Richard Grandalski v. Quest Diagnostics Inc

PRECENDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 13-4329
_____________

RICHARD GRANDALSKI; JANET GRANDALSKI;
DENISE CASSESE, INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY SITUATED,

Appellants

v.

QUEST DIAGNOSTICS INC;
RETRIEVAL MASTERS CREDITORS BUREAU, INC.,
d/b/a AMERICAN MEDICAL COLLECTION;
CREDIT COLLECTION SERVICES;
CREDIT BUREAU CENTRAL;
QUANTUM COLLECTIONS; DOES 1 to 50

On Appeal from the United States District Court
for the District of New Jersey
(District Court No.: 2-04-cv-04362)
District Judge: Honorable Stanley R. Chesler
 Argued on July 9, 2014

(Opinion filed: September 11, 2014)

Before: RENDELL, CHAGARES and JORDAN,
Circuit Judges

Nicole M. Acchione, Esquire
Lisa J. Rodriguez, Esquire (Argued)
Schnader Harrison Segal & Lewis, LLP
220 Lake Drive, East
Woodland Falls Corporate Park
Suite 200
Cherry Hill, NJ 08002-1165
Joseph S. Tusa, Esquire
P. O. Box 566
Southold, NY 11971

Joseph S. Tusa, Esq.
Tusa
P.O. Box 566
Southolg, NY 11971
Counsel for Appellants

2
Diane A. Bettino, Esquire
Mark S. Melodia, Esquire
Reed Smith
136 Main Street
Suite 250, Princeton Forrestal Village
Princeton, NJ 08540

Robert N. Hochman, Esquire (Argued)
Sidley Austin
One South Dearborn Street
Chicago, IL 60603

James S. Murphy, Esquire
Garrity, Graham, Murphy, Garofalo & Flinn
72 Eagle Rock Avenue
Suite 350, P. O. Box 438
East Hanover, NJ 07936
Counsel for Appellees

OPINION

RENDELL, Circuit Judge:

Appellants filed a putative class action alleging that
Quest Diagnostics Inc., a medical testing company, routinely
overbilled patients. The District Court denied certification as
to all four of Appellants’ proposed classes. Following the
denial, the Court granted summary judgment against an
individual Appellant, Denise Cassese, as to her state law

3
consumer deception claim. For the reasons that follow, we
will affirm the District Court’s judgments.

I. Background

Quest Diagnostics is the country’s largest provider of
diagnostic and clinical testing. In general, it tests a patient’s
specimens upon the request of a referring physician. Once
Quest bills a patient’s insurance provider, the provider
reviews the claim and sends Quest an Explanation of Benefits
(“EOB”) or an Electronic Remittance Advice (“ERA”), which
informs Quest of the amount, if any, that the patient is
responsible for paying. Quest then sends the patient a bill,
and, if no response is received, it may turn the bill over to a
collection agency. Appellants advance numerous claims, but
the heart of the case is the allegation that Quest billed patients
in excess of the amount stated on the EOB or ERA.

Appellants sought certification of several classes
related to this alleged overbilling.1 First, they proposed a
class of all persons who were billed by Quest and who paid
an amount in excess of that stated on an EOB or ERA
provided to Quest prior to the date of the bill (hereinafter,
“Post-EOB Billing Class”). In addition, Appellants sought to
certify a class of those persons similarly overbilled by Quest,
who were members, participants, subscribers or beneficiaries
of Anthem Blue Cross and Blue Shield and the Federal
Employee Health Benefits Program (hereinafter, “Anthem

1
Appellants previously sought certification of multiple
classes with similar claims. The District Court denied this
first motion for certification in Agostino v. Quest Diagnostics
Inc., 256 F.R.D. 437 (D.N.J. 2009), which was not appealed.

4
BCBS FEHB Program Class”). At oral argument, Appellants
acknowledged that this class is properly regarded as a
subclass of the Post-EOB Billing Class. Appellants pled
multiple causes of action for both classes and on appeal urge
that the District Court erred in denying certification as to two
such claims: state law consumer fraud and unjust enrichment.

Because Appellants proposed these two nationwide
litigation classes (as distinct from settlement classes), the
District Court engaged in a choice of law analysis for the state
consumer fraud claim, and found that the law of the class
members’ home states would apply. However, the Court
concluded that applying so many different fraud statutes
would be unwieldy and inappropriate for class treatment at
trial. It further held that Appellants had not carried their
burden to show precisely how the statutes could be grouped
into a few categories for litigation, and accordingly denied
certification to the Post-EOB Billing Class and the Anthem
BCBS FEHB Program Class as to their state consumer fraud
claims.

Concerning the unjust enrichment claim, the District
Court found that there were numerous explanations for
overbilling that would not be wrongful or unjust. Thus, the
Court held that the evidentiary showing required for each
class member to show unjust enrichment would be highly
individualized, such that common issues of fact did not
predominate between the class members. The Court further
held that because the class definitions implicitly included a
requirement of wrongful loss, given the attendant difficulty of
determining liability, the classes themselves were not
reasonably ascertainable. Accordingly, the Court denied
certification for the Post-EOB Billing Class and the Anthem

5
BCBS FEHB Program Class as to their unjust enrichment
claim.

Separately, Appellants proposed a class of all persons
who received written demands from debt collectors retained
by Quest which “i) stated that the debt collector may engage
in ‘additional’ or ‘further’ collection efforts or may report a
delinquency to credit bureaus; or ii) added interest, charges or
penalties in excess of the original amount billed by Quest.”
(App. 19.) (hereinafter, “Debt Collector Victim Class”)2
Appellants state that they are now seeking certification as to
only the second prong of that class, and only pursuant to a
claim that the debt collectors violated the Fair Debt
Collection Practices Act (“FDCPA”). On that issue, the
District Court found that the proposed representative plaintiff,
Richard Grandalski, was not a member of the Debt Collector
Victim Class because he had never received a written demand
from debt collectors. Without a representative plaintiff, the
Court denied certification as to prong (ii) of the Debt
Collector Victim Class on the FDCPA claim.

Finally, following the denial of class certification, the
District Court granted summary judgment against Denise
Cassese, in her individual capacity, as to her claim under New
York General Business Law § 349.

II. Jurisdiction and Standard of Review

2
Appellants also proposed a class of Medicare Part B
participants who were improperly billed by Quest.
Appellants are not appealing the denial of certification as to
this class.

6
 The District Court had jurisdiction pursuant to, inter
alia, 28 U.S.C. § 1331, and we have jurisdiction under 28
U.S.C. § 1291. “We review a class certification order for
abuse of discretion, which occurs if the district court’s
decision ‘rests upon a clearly erroneous finding of fact, an
errant conclusion of law or an improper application of law to
fact.’ We review whether an incorrect legal standard has
been used de novo.” Hayes v. Wal-Mart Stores, Inc., 725
F.3d 349, 354 (3d Cir. 2013) (citation omitted).
Separately, on review of summary judgment we
employ the same standard as the District Court pursuant to
Fed. R. Civ. P. 56(a), that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.”

III. Analysis

Pursuant to Fed. R. Civ. P. 23(a), class representation
is permissible if “(1) the class is so numerous that joinder of
all members is impracticable; (2) there are questions of law or
fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of
the class; and (4) the representative parties will fairly and
adequately protect the interests of the class.” Further, a class
action can be maintained if all above requirements are
satisfied, and, as relevant to this case, “the court finds that the
questions of law or fact common to class members
predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3).

7
 Appellants take issue with several of the District
Court’s rulings as to these requirements. First, Appellants
object to the denial of certification as to their state law
consumer fraud claims. Specifically, Appellants contend that
the District Court should not have engaged in a choice of law
analysis at the certification stage. Appellants urge
alternatively that the choice of law ruling was incorrect. As a
further alternative, Appellants argue that even if the local
laws of 42 states applied to the state claims, class treatment
was warranted because the laws can be grouped for litigation
purposes.

Separately, Appellants argue that certification should
have been granted as to their claims of unjust enrichment,
because common issues of fact predominated. Appellants
also argue that the District Court erred in denying
certification to the Debt Collector Victim Class. Finally,
Appellants object to the dismissal of Denise Cassese’s
individual claim. We address these arguments in turn.

A. State Law Consumer Fraud Claims

1. Choice of Law Analysis Was Not Premature

As noted above, the District Court sought to determine
which state law would govern the state consumer fraud claims
for the proposed nationwide Post-EOB Billing Class and
Anthem BCBS FEHB Program Class. Appellants argue that
the District Court should not have engaged in this choice of
law analysis at the class certification stage, citing Sullivan v.
DB Investments, Inc., 667 F.3d 273 (3d Cir. 2011) (en banc).
There, we noted that “many courts find it inappropriate to
decide choice of law issues incident to a motion for class

8
certification.” Id. at 309 (citation and quotation marks
omitted).

However, Sullivan concerned settlement classes, which
do not pose the types of management problems that can arise
in a nationwide class action trial. We specifically stated in
Sullivan:

Because we are presented with a
settlement class certification, we
are not as concerned with
formulating some prediction as to
how [variances in state law]
would play out at trial, for the
proposal is that there be no trial.
As such, we simply need not
inquire whether the varying state
treatments of indirect purchaser
damage claims at issue would
present the type of ‘insuperable
obstacles’ or ‘intractable
management problems’ pertinent
to certification of a litigation
class.

Id. at 303-04. We recognized that “there may still be
circumstances . . . where ‘[i]n a multi-state class action,
variations in state law may swamp any common issues and
defeat predominance.’” Id. at 304 n.28 (citation omitted).

The nationwide classes proposed by Appellants were
for purposes of trial, not settlement. Under such facts, it was
reasonable for the District Court to inquire at the certification

9
stage as to whether the classes posed “intractable
management problems” for trial. See id. at 304. Indeed, we
have found error where a District Court failed to do so. See
In re LifeUSA Holding Inc., 242 F.3d 136, 147 (3d Cir. 2001)
(finding error where the “District Court failed to consider
how individualized choice of law analysis of the forty-eight
different jurisdictions would impact on Rule 23’s
predominance requirement . . . .”); see also Georgine v.
Amchem Prods., Inc., 83 F.3d 610, 627 (3d Cir. 1996)
(“[B]ecause we must apply an individualized choice of law
analysis to each plaintiff’s claims . . . the proliferation of
disparate factual and legal issues is compounded
exponentially.”) (internal citation omitted). Thus, it was not
an abuse of discretion for the District Court to determine what
law would govern the proposed state consumer fraud law
claims.

2. Choice of Law Analysis Was Not Incorrect

Appellants next assert that the District Court erred in
concluding that the laws of putative class members’ home
states controlled the state law claims. In its analysis, the
District Court applied the choice of law rules of the forum
state, New Jersey, to determine the controlling law. New
Jersey has adopted “the most significant relationship” test set
out in the Restatement (Second) of Conflict of Laws. P.V. ex
rel. T.V. v. Camp Jaycee, 962 A.2d 453, 459-60 (N.J. 2008).
Under this test, courts first inquire whether an actual conflict
exists between the laws of the potentially relevant states. Id.
at 460. The parties do not dispute that an actual conflict
exists between New Jersey consumer fraud law and the
consumer protection laws of other states. With an actual
conflict, courts must then determine, by reference to the

10
Restatement, which state has the most significant relationship
to the case and parties. Id. at 461. The District Court found
that there are two distinct provisions in the Restatement
which could apply in this case.

First, § 148(1) of the Restatement applies “[w]hen the
plaintiff has suffered pecuniary harm on account of his
reliance on the defendant’s false representations and when the
plaintiff’s action in reliance took place in the state where the
false representations were made and received . . . .”
(emphasis added). When this provision is satisfied, the law of
the state where the representations were both made and
received controls. The District Court held that § 148(1)
governed the case because Quest’s misrepresentations
(demand for payment in bills) were both made and received
in the putative class members’ home states. The Court
apparently found that while certain of the misrepresentations
were sent from Quest’s headquarters in New Jersey, they
were nonetheless “made” when they were “read at their
destination – the customer’s home state . . . .” (App. 28.)
This reasoning was identical to that in the District Court’s
denial of Appellants’ first motion for class certification,
which was not appealed, Agostino v. Quest Diagnostics Inc.,
256 F.R.D. 437, 462-63 (D.N.J. 2009) (“Agostino I”).

This reasoning has since been rejected by our Court.
In Maniscalco v. Brother Int’l (USA) Corp., 709 F.3d 202,
208 (3d Cir. 2013) we held that “[c]onstruing the location to
which a representation is ‘directed’ to be the same in which
one is ‘made’—as opposed to the location from which the
representation emanated—would render meaningless the
Restatement drafters’ careful distinction between ‘made’ and
‘received.’” We specifically cited Agostino I as an instance in

11
which such an incorrect reading had occurred. Id. Thus, both
parties here agree that § 148(1) of the Restatement (Second)
of Conflict of Laws does not apply.

When the misrepresentations were not made and
received in the same state, the proper choice of law analysis
instead involves § 148(2) of the Restatement, which uses six
factors to determine the state with the most significant
relationship to the case. Those factors are as follows:

(a) the place, or places, where the plaintiff acted in
reliance upon the defendant's representations,
(b) the place where the plaintiff received the
representations,
(c) the place where the defendant made the
representations,
(d) the domicil, residence, nationality, place of
incorporation and place of business of the parties,
(e) the place where a tangible thing which is the
subject of the transaction between the parties was
situated at the time, and
(f) the place where the plaintiff is to render
performance under a contract which he has been
induced to enter by the false representations of the
defendant.

Restatement (Second) of Conflict of Laws § 148(2). While
the District Court did not have the benefit of Maniscalco at
the time of its ruling, it actually did consider the appropriate
analysis under § 148(2) as an alternative holding, and
maintained that these factors still weighed in favor of using
the law of individual class members’ states. The Court held
that the class members each paid money in their home states

12
in reliance on the Quest bill (factor a), received the bill in
their own states (factor b), presumably obtained lab services
in their home states (factor e), and Quest was expected to
render performance in their home states (factor f). The Court
held that factor (d), the residence of all parties, was neutral.
Finally, the District Court found that factor (c), the place
where the defendant made the representations, New Jersey,
was not enough to overcome the remaining factors’ favoring
the use of class members’ home state consumer fraud law.

While we agree with Appellants that the District Court
erred in weighing certain of the factors,3 its analysis generally
comports with our reasoning in Maniscalco. In that case, a
plaintiff sought to bring a class action pursuant to New Jersey
law, but the district court held that the law of plaintiff’s
residence, South Carolina, applied instead. We affirmed,
finding that factors (a) and (b), where the plaintiff acted in
reliance and where he received the representations, weighed
“strongly in favor of applying South Carolina law.” 709 F.3d
at 208. Factor (e), the location of a tangible thing, weighed in
favor of South Carolina law, because the case concerned a
defective printer purchased in that state. Factor (f) was
inapplicable because there was no contract. We held that
factor (d), the location of all parties, weighed slightly in favor

3
Specifically, factor (e) is irrelevant to the case as it only
concerns a “tangible thing which is the subject of the
transaction,” and there was no tangible thing at issue here,
only lab testing services. Further, factor (f) is also
inapplicable as it only concerns rendering “performance
under a contract which he has been induced to enter,” and
Appellants entered no contract.

13
of South Carolina law, given that “[t]he domicil, residence
and place of business of the plaintiff are more important than
are similar contacts on the part of the defendant.”
Restatement (Second) of Conflict of Laws § 148 cmt. i. We
went on to note the further commentary in the Restatement
that “[i]f any two of the above-mentioned contacts, apart from
the defendant’s domicil, state of incorporation or place of
business, are located wholly in a single state, this will usually
be the state of the applicable law with respect to most issues.”
Maniscalco, 709 F.3d at 209 (quoting Restatement (Second)
of Conflict of Laws § 148 cmt. j).

Here, similar to Maniscalco, factors (a) and (b), where
the plaintiff acted in reliance and where he received the
representations, weigh in favor of applying the laws of
putative class members’ home states. In addition, factor (d),
the residence of all parties, also weighs in favor of class
members’ home state law, given that the domicil of the
plaintiff is regarded by the Restatement as more important
than that of the defendant. See Restatement (Second) of
Conflict of Laws § 148 cmt. i.

Also similar to Maniscalco, only factor (c), where the
representations were made, weighs in favor of applying New
Jersey law. As we held in Maniscalco, “[n]othing else about
the relationship between the parties, other than the fortuitous
location of [the defendant’s] headquarters, took place in the
state of New Jersey. [Plaintiff’s] home state, in which he
received and relied on [the defendant’s] alleged fraud, has the
‘most significant relationship’ to his consumer fraud claim.”
Maniscalco, 709 F.3d at 208-09. The same conclusion
applies here.

14
 Finally, in Maniscalco we noted that the § 148(2)
factors are to be construed in light of the principles set forth
in § 6 of the Restatement, which include “(1) the interests of
interstate comity, (2) the interests of the parties, (3) the
interests underlying the field of tort law, (4) the interests of
judicial administration, and (5) the competing interests of the
states.” Id. at 207. We found that, on balance, these factors
also weighed in favor of plaintiff’s home state law. Id. at
209-10. Here, the principles in § 6 of the Restatement apply
with equal force in favor of class members’ home state laws.

In Maniscalco we concluded that under the
Restatement, the law of South Carolina, as plaintiff’s home
state, applied to the action. While there are some small
differences between this case and Maniscalco, none are
dispositive. That case controls our analysis here and confirms
that the laws of class members’ home states apply to their
state law claims for the Post-EOB Billing Class and Anthem
BCBS FEHB Program Class.

3. Proposed Grouping of State Laws

Appellants next contend that even if each class
member’s home state law controlled their claims, the District
Court erred in finding such claims impractical for class
treatment. Appellants urged that the state consumer fraud
statutes should be grouped into two categories for the
purposes of litigation, those which proscribe (1) “unfair or
deceptive” conduct (similar to the Federal Trade Commission
Act), and (2) those that prohibit false or misleading conduct.
(Appellants’ Opening Br. at 32.) Appellants again rely on
Sullivan where we endorsed the general procedure of
grouping multiple state laws into a few categories for the

15
purposes of class litigation. There we stated that, “[w]e
[have] emphasized our willingness to certify nationwide
classes where differences in state law fell ‘into a limited
number of predictable patterns,’ and any deviations ‘could be
overcome at trial by grouping similar state laws together and
applying them as a unit.’” 667 F.3d at 301.
The District Court took note of the grouping proposal
by Appellants and found it wanting. The Court noted that
Appellants’ analysis consisted “solely” of citation to, and
brief discussion of one district court case which followed
such a procedure, and an exhibit setting forth the National
Consumer Law Center’s 2009 analysis of various state
consumer fraud statutes. (App. 37.) The District Court noted
that “[n]o effort has been made to demonstrate how Plaintiffs’
claims of deception through overbilling could be proven
under the statutes’ varying elements of reliance, state of mind,
and causation, to name a few. In other words, Plaintiffs have
proposed two groups, but have not demonstrated how this
grouping would apply to the facts and issues presented by this
case . . . .” (Id.) Plaintiffs also provided no indication as to
how the jury could be charged in some coherent manner
relative to the proposed grouping. The District Court
concluded that plaintiffs simply had “not met [their] burden”
of demonstrating that grouping was warranted or workable.
(App. 38.)

We agree with the District Court and conclude that
while grouping, in general, may be a permissible approach to
nationwide class action litigation, in this case Appellants did
not provide enough information or analysis to justify the
certification of the classes they proposed. For example, in In
re Prudential, we noted that the grouping proposal there
consisted of a “series of charts setting forth comprehensive

16
analyses of the various states’ laws potentially applicable to
their common law claims.” 148 F.3d 283, 315 (3d Cir. 1998)
(internal quotation marks omitted). Such in-depth treatment
justified the District Court’s decision to group state laws in
that case, but is lacking here.
In addition, Court of Appeals decisions cited in
Sullivan explicitly recognized that plaintiffs face a significant
burden to demonstrate that grouping is a workable solution.
See Klay v. Humana, Inc., 382 F.3d 1241, 1262 (11th Cir.
2004) (“The burden of showing uniformity or the existence of
only a small number of applicable standards (that is,
‘groupability’) among the laws of the fifty states rests
squarely with the plaintiffs.”) (abrogated on other grounds);
Walsh v. Ford Motor Co., 807 F.2d 1000, 1017 (D.C. Cir.
1986) (“[T]o establish commonality of the applicable law,
nationwide class action movants must creditably demonstrate,
through an ‘extensive analysis’ of state law variances, ‘that
class certification does not present insuperable obstacles.’”).

We agree with the District Court that Appellants have
failed to provide a sufficient, or virtually any, analysis
describing how the grouped state laws might apply to the
facts of this case. They assert only that the differences
between the state laws within each group are “insignificant or
non-existent.” (Appellants’ Opening Br. at 27.) As the
District Court held, Appellants must do more than provide
their own ipse dixit, citation to a similar case, and a generic
assessment of state consumer fraud statutes, to justify
grouping. Thus, it was not an abuse of discretion for the
District Court to find that Appellants had not carried their
burden to show that grouping was workable, and that,
consequently, the variations in state laws precluded the
proposed groups. We also find no abuse of discretion in the

17
Court’s final conclusion that class litigation involving dozens
of state consumer fraud laws was not viable and that common
facts and a common course of conduct did not predominate.
We therefore affirm the denial of certification of the Post-
EOB Billing Class and the Anthem BCBS FEHB Class, as to
the state law consumer fraud claims.

B. Unjust Enrichment Claim

Next, Appellants object to the District Court’s denial
of certification to the Post-EOB Billing Class and the Anthem
BCBS FEHB Program Class, as to their unjust enrichment
claims. “[A]n essential prerequisite of a class action, at least
with respect to actions under Rule 23(b)(3), is that the class
must be currently and readily ascertainable based on objective
criteria.” Marcus v. BMW of N. Am., LLC, 687 F.3d 583,
592-93 (3d Cir. 2012). This is distinct from the separate
requirement under Rule 23(b)(3), that “questions of law or
fact common to class members [must] predominate over any
questions affecting only individual members . . . .” Thus,
“the ascertainability requirement focuses on whether
individuals fitting the class definition may be identified
without resort to mini-trials, whereas the predominance
requirement focuses on whether essential elements of the
class’s claims can be proven at trial with common, as opposed
to individualized, evidence.” Hayes, 725 F.3d at 359. Here,
the District Court denied certification as to the unjust
enrichment classes because it found both the predominance
and ascertainability requirements were not satisfied.

Concerning its ascertainability analysis, the Court
found that “implicit in the class definition must be the fact of
harm, that is, the class must consist of those above-mentioned

18
Quest patients who wrongfully sustained a loss by paying the
bill. Otherwise, a class of persons seeking relief simply does
not exist.”4 (App. 44.) The Court concluded that determining
membership in the class would require individualized
analyses into whether each putative class member was
wrongfully harmed, such that the class could not be readily
ascertained.

While neither party notes this, the District Court’s
analysis conflated ascertainability with the predominance
inquiry. 5 The Court seemed to find that the class definitions
incorporated the causes of action, such that ascertaining a
class was complicated by the evidence required to prove a
legal claim. Specifically, the District Court was focused on

4
The ascertainability analysis was undertaken in the context
of Appellants’ RICO claims, and was incorporated in the
unjust enrichment discussion.
5
Predominance and ascertainability are separate issues. Our
cases that have addressed ascertainability have focused on
whether objective records could readily identify class
members. For instance, in Marcus, we were concerned with
“serious ascertainability issues” because of BMW’s potential
difficulty in determining which customers purchased vehicles
that were factory-equipped with the Bridgestone tires at issue.
687 F.3d at 593-94. Similarly, in Carrera v. Bayer
Corporation, we found that a class of diet-supplement
purchasers could not be ascertained because, (1) there was no
indication that retailer records could be used to identify class
members, and (2) the use of affidavits would prevent Bayer
from challenging class membership. 727 F.3d 300, 309 (3d
Cir. 2013)

19
the individualized proof required to show an unjust
enrichment claim, as an obstacle to class certification, a
determination which falls squarely under the predominance
analysis, to which we now turn.

On this issue the District Court referred to several
factual scenarios illustrated by Quest’s expert that would lead
to ostensible overbilling, but not necessarily unjust or
fraudulent overbilling. On appeal, Appellants do not dispute
Quest’s claim that many patients who were initially
overbilled by Quest subsequently received refunds of their
incorrect charge. However, these patients would still be class
members, since they were billed and paid an amount in excess
of an EOB provided to Quest.

In sum, the District Court properly found that
individual inquiries would be required to determine whether
an alleged overbilling constituted unjust enrichment for each
class member. Such specific evidence is incompatible with
representative litigation. See Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541, 2551 (2011) (“[A] common contention,
moreover, must be of such a nature that it is capable of
classwide resolution—which means that determination of its
truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.”); Marcus,
687 F.3d at 604 (finding reversible error where district court
failed to consider that allegedly defective tires can go flat “for
myriad reasons,” requiring an examination of each class
member’s tire, and “[t]hese individual inquiries are
incompatible with Rule 23(b)(3)’s predominance
requirement”). Accordingly, the denial of certification of the
Post-EOB Billing Class and the Anthem BCBS FEHB
Program Class, as to the unjust enrichment claim, was not an

20
abuse of discretion, and we will affirm the District Court’s
judgment.
C. Debt Collector Victim Class

Appellants next urge that the District Court erred in
denying certification to the Debt Collector Victim Class. As
noted above, Appellants limit their appeal for this class to
their claim of an FDCPA violation. Appellants have also
abandoned the first component of the class and instead only
appeal the denial of certification as to the second, which
includes persons who received written demands from debt
collectors retained by Quest that added interest, charges or
penalties in excess of the original amount billed by Quest.
Appellees contend that Appellants cannot now seek this
narrowed class because it was not sought below.

We will not address the issue of waiver because, even
assuming, arguendo, that this argument was not waived, the
narrowed Debt Collector Victim Class could not be certified.
The District Court denied certification as to the second prong
of the class because Richard Grandalski, the only proposed
representative class member, is not an adequate class
representative for the FDCPA violation claim, as the class
definition includes only those who received a written demand
for payment from a debt collector. As the Court found,
Grandalski admitted in a deposition that he “never received
anything in written communications from Quantum [the debt
collector]. . . .” (App. 65.) Rather, “Grandalski’s deposition
testimony indicates that Quantum contacted him by
telephone.” (Id.) The Court ruled that, because his claim was
unlike that of the class he was supposed to represent,
certification was denied. See Hayes, 725 F.3d at 360

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(“[W]here the lead plaintiff does not fit the class definition,
the class may not be certified.”).
Appellants urge that this ruling constitutes a clear
factual error because the District Court later granted
Grandalski summary judgment as to his individual claim,
finding that he had in fact shown an FDCPA violation. On
this issue, Appellants point to the Court’s statement that
“Quantum dunned Mr. Grandalski” on two separate
occasions, and seemingly contend that this is a finding that
Grandalski was billed in writing. (App. 87 n.4.) However,
the cited statement does not reflect a conclusion that this
“dunning” was in writing. Cf. In re Hechinger Inv. Co. of
Del., Inc., 320 B.R. 541, 549 (Bankr. D. Del. 2004) (“[T]here
were no letters, telephone calls, or any attempts whatsoever
on the part of Defendant to apply pressure or to ‘dun’ Debtor
to encourage more prompt payment . . . .”).

Further, Appellants do not challenge or attempt to
explain Grandalski’s testimony, cited in the denial of class
certification, that he received no written communications
from a debt collector, and that instead he communicated with
them by phone. Even after full discovery, no party has
produced any such written letter. We cannot conclude that
the Court made a clear error in finding that Grandalski had
received no written demands, and therefore was not a suitable
class representative. Thus, we will affirm the denial of
certification to the second prong of the Debt Collector Victim
class, as to the FDCPA claim.

D. Summary Judgment as to Denise Cassese

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 Lastly, following denial of class certification,
Appellant Denise Cassese proceeded individually with her
claims. Summary judgment was granted to Appellees and
denied as to Cassese on her various claims. Appellants object
to only one aspect of that ruling, Cassese’s claim under New
York General Business Law § 349. Under that law, Cassese
was required to show that (1) Quest’s conduct was consumer-
oriented, (2) its conduct was materially deceptive, and that (3)
she was injured thereby. Oswego Laborers’ Local 214
Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20,
25 (1995).

The District Court held that Cassese had not produced
evidence of any pecuniary injury, and the only claim of non-
pecuniary harm came in one line of her deposition transcript
where she was asked if she had been damaged by Quest. She
responded: “Just basically harassed and billed and talked to
them, and I think I paid them.” (App. 706) The Court found
that this bare mention of being “harassed and billed” did not
constitute a showing of non-pecuniary harm. (App. 74.)

On appeal, Appellants challenge only the District
Court’s conclusion that Cassese had not shown evidence of
non-pecuniary harm. Appellants point out that non-pecuniary
harm, such as emotional distress, is cognizable under New
York General Business Law § 349. See Douyon v. N.Y. Med.
Health Care, P.C., 894 F. Supp. 2d 245, 264 (E.D.N.Y.
2012); Oswego, 85 N.Y.2d at 26 (“[A] plaintiff seeking
compensatory damages must show that the defendant engaged
in a material deceptive act or practice that caused actual,
although not necessarily pecuniary, harm.”).

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 However, given the posture of the case on summary
judgment, we agree with the District Court that one bare
mention of being “harassed and billed,” without more, is not
evidence from which a reasonable jury could conclude that
Cassese suffered actual, though non-pecuniary, harm. She
provided no facts, and nothing beyond a single word, that
could allow a jury to infer that she suffered any actual harm
because of Appellees’ actions. Accordingly, summary
judgment was appropriately granted to Appellees and against
Cassese on this claim.

IV. Conclusion

For the foregoing reasons we will affirm the judgment of the
District Court.

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