Papa John’s Opposes Cert. in Delivery Tax Class Action Lawsuit

On Tuesday, Papa John’s International filed a motion opposing certification of the Class in the Florida class action lawsuit alleging the pizza company improperly charged its customers for sales tax on delivery fees.

Lead plaintiffs accused Papa John’s of charging more than $5 million in sales taxes on delivery fees in violation of Florida tax law in a class action lawsuit they filed in Florida federal court earlier this year.

In September, the plaintiffs filed a motion to certify a Class including “[a]ny person or entity that ordered Papa John’s food for delivery on or after March 28, 2010, and who was charged and thereafter paid sales tax on a delivery fee that was separately stated on an invoice when the customer had the option to instead pick up the ordered food at a Papa John’s location in Florida.”

Papa John’s filed a motion to in opposition of Class certification arguing that a class action lawsuit is not the proper way to address the issue because the claims of the proposed Class Members are too individualized to be appropriately addressed by a class action lawsuit. Papa John’s argues that it will be impossible to define a precise Class for a number of reasons, including that Class Members paid in cash. Additionally, according to Papa John’s, the court will be required to conduct individualized investigations into the reasons customers decided to purchase Papa John’s, including taste and location or because they were misled about sales taxes.

“Plaintiffs cannot carry their burden of proving that this case may be certified as a class action,” contended Papa John’s in the filing. “Among other things, the named plaintiffs lack sufficient credibility to pursue class claims, they lack standing to secure injunctive relief, and the action is predicated upon the particular circumstances of hundreds of thousands of unique commercial transactions, requiring numerous individualized inquiries.”

Papa John’s also argued in its opposition filing that certain proposed Class representatives are unsuitable to represent the Class because they’ve submitted inaccurate affidavits. Papa John’s points out that two representatives said they didn’t know that Papa John’s taxed delivery fees when they paid for the delivery orders. But, contends Papa John’s, the plaintiffs knew that they had paid tax on delivery before their orders.

Class certification is also inappropriate because the proposed Class can’t easily be determined, according to Papa John’s. “As several of the proposed class representatives have admitted, they seek damages on behalf of the person who paid for the sales tax, irrespective of the orderer’s identity,” Papa John’s argues. “Conversely, they admit that would not seek damages for instances where they ordered pizza, but someone else paid for it.”

“Hence, per plaintiffs’ own theory, payors — not orderers — are the class members,” Papa John’s concludes, contending “plaintiffs cannot set forth an administratively feasible method to identify all persons who paid for their delivery order.”

The plaintiffs are represented by Alan F. Wagner and Jason Whittemore of Wagner Vaughan & McLaughlin PA.

The Papa John’s Delivery Tax Class Action Lawsuit is Schojan, et al. v. Papa John’s International Inc., et al., Case No. 8:14-cv-01218, in the U.S. District Court for the Middle District of Florida.