Mazur v. EBay, Inc.

Mazur v. EBay, Inc.
2009 WL 1203937 (N.D. Cal.)


In the proposed class actions, plaintiffs brought suit against EBay, Inc., Hot Jewelry Auctions.Com, Neimans Jewelry, Goantiques.com, Inc. and Does 1-200, alleging that the defendants engaged in fake or “shill” bidding. Shill bidding, defined as “bids that artificially increase an item’s price or apparent desirability, or bids by individuals with a level of access to the seller’s item information not available to the general community” is supposedly prohibited by EBay. Hot Jewelry, Neimans and Goantiques were part of EBay’s Live Auction service which allowed users to place bids on live auctions, hosted by defendants, alongside live bidders. Bids made by live floor bidders were reflected online. Plaintiffs allege that defendants were not in fact hosting live auctions. Plaintiffs allege that defendants utilized employees, disguised as “VIP” bidders to place shill bids on their own computers to inflate the sale price of various items. As a result, the plaintiffs were “induced to pay higher prices for these items both because the floor bidders have actually increased the price of the item, and because the Ebay Internet bidders rely on the floor bidder having access to the item and therefore being able to better evaluate its worth.” Plaintiffs content that the defendants are liable for the misrepresentations and that Ebay is also liable for claiming the auctions were reputable and safe.


This is a potential class action brought before the United States District Court for the Northern District of California. The plaintiffs filed a motion for class certification and appointment of class representative and class counsel.


Motion for class certification denied with prejudice.


Under Rule 23(a) of the Federal Rules of Civil Procedure, the party seeking class certification must establish: (1) that the class is so large that joinder of all members is impracticable (“numerosity”); (2) that there are one or more questions of law or fact common to the class (“commonality”); (3) that the named parties' claims are typical of the class (“typicality”); and (4) that the class representatives will fairly and adequately protect the interests of other members of the class (“adequacy of representation”). Fed.R.Civ.P. 23(a).

In addition to the requirements set out by Rule 23(a), the class definition must provide a class which is ascertainable and clearly identifiable. Lamumba Corp. v. City of Oakland
Under Rule 23(b) of the Federal Rules of Civil Procedure, the party seeking class certification must also show that one of the following options is satisfied: (1) that common questions of law or fact predominate and that a class action is superior to other available methods of adjudication; or (2) that the defendant acted or refused to act on grounds generally applicable to the class, rendering declaratory or injunctive relief appropriate with respect to the class as a whole; or (3) that the prosecution of individual actions would create a risk of inconsistent verdicts which would establish incompatible standards of conduct for defendant; or (4) that adjudication of individual claims would be dispositive of the claims or non-party class members, or substantially impede the ability of non-party class members to pursue their own claims. Fed, R. Civ. P. 23(b).

The party seeking class certification bears the burden of establishing that the requirements or Rule 23 have been met. Zinser v. Accufix Research, Inc.


Plaintiffs defined their class as “all persons in the United States who won auctions managed by Seller Defendants and operated by EBay, or who would have won such auctions by virtue of being the highest bidder who was not a shill bidder, from July 31, 2004 to April 2, 2008.” The court found that the definition was “imprecise, overbroad and unascertainable.” The court found that the definition was overbroad because it included two groups of people, those who won auctions operated by Defendants and all persons who would have one such auctions. The court found the definition imprecise because some of the users may be precluded from bringing a lawsuit under the California Consumer Legal Remedies Act and because the definition currently includes non-harmed auction winners. The proposed set of class members, those who “would have won but for the shill bidder” is unascertainable. The court also held that there was no typicality of plaintiffs because some plaintiffs purchased jewelry items from Neimans and others purchased art and antiques through HJA and GoAntiques. Because Mazur purchased items for business use, her claim under the California Consumer Legal Remedies Act was barred, therefore the court found that she was an atypical plaintiff. The court also found that plaintiff Mazur may have conflicts of interests with other plaintiffs. Therefore, she is not appropriate as a class representative. The court found, as a whole that the plaintiffs “failed to show that common issues predominate and therefore the proposed class is not sufficiently cohesive to warrant adjudication by representation.”

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