Later, in Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013), the Supreme Court clarified that although Rule 23 does not grant court a “license to engage in free–ranging merits inquiries at the certification stage,” the merits of the claims “may be considered to the extent—but only to the extent—that they are relevant to determining whether Rule 23 prerequisites for class certification are satisfied.” Id. at 1194–95. Here, consideration of the question whether the disputed contract provision is ambiguous is warranted to determine whether the commonality requirement is met. If the disputed contract phrase is not ambiguous, the question of breach will be resolved in one broad stroke for all class members. Furthermore, the Court does not find that the Parties would be prejudiced by such a determination being made at this juncture because the Parties have briefed the ambiguity issue on summary judgment and in relation to the class certification motion. Additionally, SeaWorld has invited such a ruling by arguing that the nearly identical phrase contained in the class definition and derived from the contract is ambiguous and confusing.
33Upon review of the contract as a whole, the Court finds that the phrase “PAID IN LESS THAN 12 MONTHS” is unambiguous. According to its plain, ordinary, and grammatical meaning, the phrase means exactly what it says, “paid in less than 12 months”—that is—a lesser duration than twelve (12) full months. As pointed out by Plaintiffs in their Motion for Summary Judgment, other courts have found that when used in a contract or a statute, the term “months” means “calendar months” or the “period of time elapsing between a given date and the corresponding date” during the next month. State v. White, 73 Fla. 426, 431, 74 So. 486 (Fla. 1917); see also *292 Sheets v. Selden's Lessee, 69 U.S. 177, 190, 2 Wall. 177, 17 L.Ed. 822 (1864) ( “the term [‘months'] is not technical, and when the parties have not themselves given to it a definition, it must be construed in its ordinary and general sense, and there can be no doubt that in this sense calendar months are always understood.”); Fogel v. C. I. R., 203 F.2d 347, 349 (5th Cir. 1953) (same); Hayward Lumber & Inv. Co. v. Corbett, 138 Cal.App. 644, 651, 33 P.2d 41 (Cal. Ct. App. 1934) (“It has been held repeatedly that a month, when used to designate the passage of time under a contract or statute, means a calendar month.”); Seibert v. Sally, 238 S.W.2d 266, 267 (Tex. Civ. App. 1951) (same); Barrack v. Com., 142 Va. 596, 601, 128 S.E. 638 (Va. 1925)(same). A “period of months” is calculated by “looking at the calendar, and it runs from a given day in one month to a day of the corresponding number in the next or specified succeeding month.” Gardner v. Universal Life & Acc. Ins. Co., 164 S.W.2d 582, 583 (Tex. Civ. App. 1942). A period of “twelve months” is therefore equal to one full calendar year.
A review of other terms and provisions contained in the EZ Pay contract does not alter the Court's conclusion. SeaWorld contends that because the contract states that it is a one-year voucher and because the number of payments required is twelve (12), its interpretation that “PAID IN LESS THAN 12 MONTHS” means “paid in less than 12 monthly installments” or “paid in less than 12 separate months” is reasonable. The Court disagrees. Under the plain terms of the contract, a pass may be “PAID IN LESS THAN 12 MONTHS” even though a pass holder makes twelve separate payments and receives a one-year pass in return. To reach SeaWorld's interpretation the Court would have to write additional language into the contract, which it is not permitted to do. Dahl–Eimers v. Mut. of Omaha Life Ins. Co., 986 F.2d 1379, 1382 (11th Cir. 1993) (“Courts may not rewrite contracts or add meaning to create an ambiguity.”). SeaWorld drafted the form contract and if it meant “less than 12 monthly payments,” it could have said so. The Court also finds unpersuasive SeaWorld's argument that the Court should find that the phrase is reasonably susceptible to SeaWorld's interpretation because “less” is sometimes
misused to refer to countable items. The Court finds that interpreting the meaning of contractual terms according to a common “misusage” would not be reasonable. See, e.g., JRG Capital Inv'rs I, LLC v. Doppelt, 2012 WL 2529256, at *3 (S.D. Tex. June 28, 2012) (“Courts are required to follow elemental rules of grammar for a reasonable application of the legal rules of construction.”) (quoting Gen. Fin. Services, Inc. v. Practice Place, Inc., 897 S.W.2d 516, 522 (Tex. App. 1995)).
Because the Court has found that the disputed contract provision is unambiguous, the commonality requirement is met, at least as to the putative class members whose claims are governed by the laws of Florida, Texas, and Virginia, because no extrinsic evidence shall be permitted to vary the meaning of the contract's plain and unambiguous terms.
3435The Court finds that the same conclusion will follow for the California putative class members. However, in order to determine the ambiguity question under California law, the Court is required to “provisionally” review any extrinsic evidence that
could make the disputed contract phrase susceptible to more than one reasonable interpretation. However, the Court does not find that the type of individualized extrinsic evidence that SeaWorld intends to submit on this question renders its preferred interpretation reasonable. The evidence as a whole consists of circumstances during which SeaWorld sales representatives may have communicated to the putative class members that the EZ Pay passes would auto-renew after the initial term ended or the fact that SeaWorld had previously auto-renewed EZ Pay passes held by that same pass holder. However, one cannot vary or contradict the clear and explicit terms of a written agreement by submitting evidence of a contradictory interpretation even under California law. See Winet v. Price, 4 Cal.App.4th 1159, 6 Cal.Rptr.2d 554, 558 (1992) (“parol evidence is admissible only to prove a meaning to which the language is ‘reasonably susceptible,’ not to flatly contradict the express terms of the agreement.”) (citation omitted).
*293 Additionally, the EZ Pay contract contains a provision at the bottom of the agreement in all caps that states: “I ACCEPT THE TERMS OF THIS AGREEMENT. I ACKNOWLEDGE RECEIPT OF THIS DOCUMENT.” (Dkt. 93–4, 93–5) In this regard, SeaWorld's corporate representative has testified that it would be improper to “incorporate any other terms outside” of the EZ Pay contract into the agreement. (Dkt. 93–3 at P. 141:18–25)
Accordingly, the Court finds that notwithstanding any extrinsic evidence that SeaWorld has or intends to provisionally submit to suggest that on its authority its representatives orally modified the terms of the contract or that its customers acquiesced in a prior breach of a previous contract by SeaWorld, the disputed contract phrase at issue in this case is clear and explicit under California law. Therefore, no individualized extrinsic evidence will be admitted to bear on the meaning of the phrase.
Because the Court has resolved the ambiguity question, the question of breach of the contract (and violation of the EFTA) is a common issue that can be resolved in one broad stroke on a class-wide basis.
[10] Thus, the commonality requirement is met.
3637383940To satisfy the typicality requirement, the class representative must have the same interest and suffer the same injury as the class members. Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322 (11th Cir. 2008) (citing Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004)). The main focus of the typicality requirement is that the named plaintiffs will advance the interests of the class members by advancing their own interests. Agan v. Katzman & Korr, P.A., 222 F.R.D. 692, 698 (S.D. Fla. 2004). “ ‘Typicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large.’ ” Cooper v. Southern Company, 390 F.3d 695, 713 (11th Cir. 2004) (quoting Prado–Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000)). The typicality requirement, much like the commonality requirement, does not require that the claims of the proposed class representative and the proposed class be identical. Prado–Steiman, 221 F.3d at 1279. The requirement may be met “even if some factual differences exist between the claims of the named representatives and the claims of the class at large.” Id. All that is required is that “the claims or defenses of the class and class representative arise from the same event or pattern or practice and are based on the same theory.” Agan, 222 F.R.D. at 698 (citing Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984)). Generally, “a strong similarity of legal theories will satisfy the typicality requirement despite substantial factual differences.” Prado–Steiman, 221 F.3d at 1279.
41Here, the claims of the named Plaintiffs are typical of the claims of the proposed class members. Like the members of the proposed class, Plaintiffs all purchased one-year EZ Pay passes to one of SeaWorld's parks located in their state of residence, executed the same form EZ Pay contract, paid for their passes in less than twelve (12) months, and were charged additional monthly payments for the renewal of their passes after the one-year pass was paid in full. With respect to the EFTA Subclass, Plaintiff Kratt paid for his one-year EZ Pay pass using a debit card. Thus, Plaintiffs were subjected to the same course of conduct as the members of the class and their claims rest on the same legal theory. To the extent that SeaWorld argues that there are certain factual differences between the claims of the named Plaintiffs and the class members, the Court finds that any such factual differences relate to SeaWorld's potential affirmative defenses and do not defeat a finding of typicality.
Accordingly, the Court finds that the typicality requirement is met.
424344Under Rule 23(a)(4), Plaintiffs must show that, as class representatives, they will fairly and adequately protect the interests of the class. The adequacy evaluation encompasses two inquiries: (1) whether any substantial conflicts of interest exist between the representative and the class; and (2) whether the representative will adequately prosecute the action. See Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). SeaWorld argues that a substantial conflict of interest exists between the named Plaintiffs and a number of members of the class because, while Plaintiffs allege that they were harmed by SeaWorld's auto-renewal of their EZ Pay passes, other members of the class benefitted from SeaWorld's auto-renewal. To support its argument, SeaWorld relies on Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181 (11th Cir. 2003), and Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280 (11th Cir. 2000), for the proposition that “[a] fundamental conflict exists where some party members claim to have been harmed by the same conduct that benefitted other members of the class.” Valley Drug, at 1189; see also Pickett, at 1280.
Pickett involved a challenge to advance pricing of cattle through “forward contracts,” which the plaintiffs contended illegally depressed pricing for cattle sellers who sold on the spot. The defendants successfully argued that a class of all cattle sellers improperly included those sellers who benefitted from the advance sales price. Valley Drug involved competing segments of a putative class that the court concluded could not be certified because some class members had benefitted from and others had been harmed by the alleged monopolistic pricing of a drug.
SeaWorld argues that this case likewise involves a proposed class that includes individuals who received a net economic benefit from the same conduct that Plaintiffs assert injured them. According to SeaWorld, individuals who have yet to return to the park after their initial one-year term has ended may have wanted their passes to renew and are actually benefited by the alleged breach because they are able to “lock-in” the same monthly rate that applied when they initially executed the EZ Pay contract. However, the Court finds that the circumstances involved in this case are wholly distinguishable from those involved in Pickett or Valley Drug.
First, and perhaps dispositive of this assertion, the purported “benefit” of a “locked-in price” is not contained within the plain terms of the EZ Pay contract. Even though SeaWorld contends that the agreement would purportedly auto-renew on a month-to-month basis after the one-year initial commitment period expired, SeaWorld does not guarantee pass holders the same rate. Indeed, the only language contained in the contract that speaks to the applicable rate after the initial pass term expires states that SeaWorld retains the right to change the rate. (See Dkt. 93–4) (“I may cancel my automatically renewed pass(es) at any time after the first full EZ Pay Plan has expired.
[SeaWorld] will advise me of any rate changes.”) (emphasis added).
Additionally, this case involves an alleged breach on a class-wide basis of a form contract with objectively defined terms and limitations of rights. Therefore, the subjective desires of individual members of the putative class are of no moment. See, e.g., In re Checking Account Overdraft Litigation, 307 F.R.D. at 646 (“[t]he reasonable expectations of a party to a form contract are judged objectively, from the perspective of a reasonable person, making the subjective views of class members irrelevant”); see also Restatement (Second) Contracts § 211(2) (a standardized contract “is interpreted wherever reasonable as treating alike all those similarly situated, without regard to their knowledge or understanding of the standard terms of the writing.”). Moreover, this is not a situation, like the one involved in Pickett, in which the potential harm or benefit afforded to class members depends on the defendant's divergent treatment of the class members under the different types of agreements. Here, every putative class member executed the same form contract and suffered the same alleged injury—SeaWorld continued to charge the class members' credit and debit cards when SeaWorld was not entitled to do so under the objective terms of the contract. *295 Finally, even if intent were relevant, the class definition expressly excludes those individuals who have subsequently visited the parks under the allegedly unauthorized renewed passes and thus it excludes those, if any, who have enjoyed or would most likely have desired any benefit from a locked-in price in a subsequent period.
Therefore, the Court finds that there is no conflict between the interests of the named Plaintiffs and the proposed class members. Additionally, the Court finds that the named Plaintiffs
[11] will adequately prosecute the action on behalf of the class and that proposed class counsel are qualified, experienced, and able to conduct the litigation. Accordingly, the adequacy requirement is met.
Rule 23(b)(3) requires “that questions of law or fact common to class members predominate over any questions affecting only individual members,” and “that a class action [be] superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
454647The requirement that common questions of law or fact predominate means “the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, must predominate over those issues that are subject only to individualized proof.” Kerr v. City of West Palm Beach, 875 F.2d 1546, 1558 (11th Cir. 1989). Regarding the predominance requirement, “[i]t is not necessary that all questions of fact or law be common, but only that some questions are common and that they predominate over individual questions.”Klay v. Humana, Inc., 382 F.3d 1241, 1254 (11th Cir. 2004), abrogated in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008). Common issues do not predominate if “as a practical matter, the resolution of ... [an] overarching common issue breaks down into an unmanageable variety of individual legal and factual issues.” Babineau v. Fed. Exp. Corp., 576 F.3d 1183, 1191 (11th Cir. 2009).
48SeaWorld contends that a class should not be certified in this action because individualized inquiries will predominate over common issues. First, SeaWorld contends that predominance is defeated by the individualized inquiries into the circumstances of each class member's purchase of their EZ Pay pass and their subjective intentions when entering into the contract. As discussed above, such inquiries will not be necessary because the disputed contract phrase is not ambiguous. Additionally, the evidence necessary to prove the breach of contract claim is essentially identical to the evidence necessary to identify the class members: whether they purchased one-year EZ Pay passes to one of SeaWorld's parks located in their state of residence during the applicable statute of limitations period; whether they paid for their passes in less than twelve (12) months; and whether they were automatically charged additional monthly payments for the renewal of their passes after the one-year pass was paid in full. For proof of a violation of the EFTA, the only additional evidence required is whether the pass holder used a debit card. All of this information is readily available from SeaWorld's databases or the databases of its payment processing vendors.
49This evidence has a direct impact on every class member's effort to establish liability and every class member's entitlement to relief. Klay, 382 F.3d at 1255. SeaWorld's corporate policy was to auto-renew all one-year EZ Pay passes as a matter of course notwithstanding the contrary language contained in the contract, unless the customer affirmatively called to cancel the auto-renewed contract. Additionally, SeaWorld had uniform policies dictating how it would address customers who complained and sought refunds. Where corporate policies “constitute the very heart of the plaintiffs' ... claims,” *296 as they do here, common issues will predominate because those policies “would necessarily have to be re-proven by every plaintiff.” Id. at 1257; see also Allapattah, 333 F.3d at 1261.
5051Additionally, even though the damages owed to class members may vary depending on the amount of the monthly payment and the number of “out of commitment” payments that were charged by SeaWorld and not refunded, damages can be easily calculated utilizing class-wide data available from SeaWorld. The fact that individualized damages issues will need to be resolved is not disqualifying of class certification. See Allapattah, 333 F.3d at 1261 (“the presence of individualized damages issues does not prevent a finding that the common issues in the class predominate.”) (internal citations omitted); Sacred Heart, 601 F.3d at 1179(individualized damages issues are least likely to defeat predominance when they may be calculated according to “essentially mechanical methods”); Mills v. Foremost Ins. Co., 511 F.3d 1300, 1310 (11th Cir. 2008) (class treatment appropriate where plaintiffs contended that damages could be determined “with relative ease through basic forensic accounting” using defendant's own data). Indeed, SeaWorld has already identified the number of potential members in the Breach of Contract class and their aggregate damages in response to discovery requests. Any additional damages due to members of the EFTA Subclass will also be easily determinable because Plaintiffs only seek statutory damages.
5253The Court also finds that the application of multi-state contract law does not preclude a finding of predominance. When seeking certification of a class for which the laws of multiple states apply, the named plaintiffs must submit a “more than perfunctory” showing that there are no material variations among the law of the applicable states, or if variations do exist, they are manageable. Sacred Heart, 601 F.3d at 1180. There is only one minor difference in the law of California relating to the issue of ambiguity. As reflected above in the Court's analysis under the commonality requirement, this variation is not unmanageable; indeed, it is not relevant.
5455Second, SeaWorld contends that the predominance requirement is not met because substantial individualized inquiries will be required to resolve its affirmative defenses. However, as recently noted by the Supreme Court, “[w]hen ‘one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.’ ” Tyson Foods, ––– U.S. ––––, 136 S.Ct. 1036, 1045, 194 L.Ed.2d 124 (2016) (quoting 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1778, pp. 123–24 (3d ed. 2005)).
SeaWorld's “knowledge-based defenses” (waiver, estoppel, modification, novation, and ratification) are premised on SeaWorld's argument that some members subjectively knew about auto-renewal but did not terminate their contracts. (See Dkt. 93–35 (applying waiver and estoppel “to anyone who accepted the contract and acknowledged they were bound by it;” applying modification and novation to “guests who received an explanation of the automatic renewal provision and remained an EZpay pass holder;” applying ratification to “guests who knew about auto[-]renewal and did not terminate”)) SeaWorld argues in its Response that pass holders who learned about auto-renewal by either reviewing their credit card statements or by calling and having a conversation with a SeaWorld representative may have waived their breach of contract rights or ratified SeaWorld's illegal contract due to their own inaction.
565758However, as Plaintiffs note, these knowledge-based defenses require pass holders to have full knowledge of the terms of the EZ Pay contract. For example, as to the defense of waiver/estoppel, under the laws of each of the four states, SeaWorld would have to prove an intentional relinquishment of a
known right. See e.g., Outboard Marine Corp. v. Superior Court, 52 Cal.App.3d 30, 124 Cal.Rptr. 852 (1975); *297 Husky Rose, Inc. v. Allstate Ins. Co., 19 So.3d 1085, 1088 (Fla. 4th DCA 2009); Sedona Contracting, Inc. v. Ford, Powell & Carson, Inc., 995 S.W.2d 192, 195 (Tex. App. 1999); Baumann v. Capozio, 269 Va. 356, 611 S.E.2d 597, 599 (2005). Ratification similarly requires
full knowledge of all material facts and circumstances. See Munroe v. Fette, 1 Cal.App. 333, 82 P. 206, 207 (1905); Frankenmuth Mut. Ins. Co. v. Magaha, 769 So.2d 1012, 1022 (Fla. 2000); Motel Enterprises, Inc. v. Nobani, 784 S.W.2d 545, 547 (Tex. App. 1990); Kilby v. Pickurel, 240 Va. 271, 275, 396 S.E.2d 666 (Va. 1990). Novation and/or modification requires the existence of a previously valid contract, agreement from all parties to a new contract, extinguishment of the original contract, and validity of the new contract. See e.g., O'Reilly v. Johnson, 91 Cal.App.2d 729, 205 P.2d 716 (1949); Young v. Morris Realty Co., 569 So.2d 813, 814 (Fla. 1st DCA 1990); Talamas v. Bressi International, 727 S.W.2d 72 (Tex. App. 1987); Wheeler v. Wardell, 173 Va. 168, 3 S.E.2d 377, 380–81 (1939).
SeaWorld argues that customers did have “full knowledge” of SeaWorld's actions because they had knowledge of the fact that SeaWorld had auto-renewed their passes. On this point, the Court finds persuasive the reasoning of the court in Allen v. Holiday Universal, 249 F.R.D. 166 (E.D. Pa. 2008), which addressed circumstances similar to those that arise in this case. In Allen, the plaintiffs filed a putative class action alleging that the defendants' health club form contracts charged excessive and unlawful initiation fees. Id. at 169. The defendants argued that a class could not be certified because it included “current members who do not wish to void their contracts” and that “liability depends upon the application of the affirmative defense of ratification, which, in turn, depends upon the circumstances and actions of each individual member.” Id. at 171. The court held that the defense of ratification could not preclude class certification because the class members could not obtain “full knowledge of all material facts,” including how the form contract properly applied and whether the defendants' acts taken pursuant to that contract were unlawful, until a ruling was made on the contract. Id. at 174–75.
Here, although some class members may have been aware that SeaWorld had auto-renewed their contract, they could not have been aware of the lawfulness of SeaWorld's conduct until either liability is established or SeaWorld admits that its actions were unlawful. The Court rejects SeaWorld's contention that a pass holder could have gained “full knowledge” of the proper interpretation of the auto-renewal provision through subsequent conversations with SeaWorld representatives because SeaWorld's uniform policy was to inform pass holders that all one-year EZ Pay passes auto-renewed as a matter of course, which is contrary to the contract's plain and unambiguous terms. See, e.g., In re Checking Account Overdraft Litig., 307 F.R.D. 630, 651 (S.D. Fla. 2015) (holding that plaintiffs could undercut defendant's affirmative defenses of ratification, waiver, voluntary payment, and failure to mitigate through the use of common evidence of defendant's misinforming its customers regarding its assessment of overdraft fees). When SeaWorld communicated to its customers that their passes would auto-renew on a month-to-month basis until the customer called to cancel (omitting the qualification language that this provision only applied to passes “PAID IN LESS THAN 12 MONTHS”), SeaWorld misinformed its customers about the parties' rights and obligations under the form EZ Pay contract—the only agreement intended to set forth the parties' obligations.
Plaintiffs contend that SeaWorld's “settlement” defenses (accord and satisfaction, compromise and settlement) also do not defeat a finding of predominance. SeaWorld intends these defenses apply to any customers who received a refund or services in compromise or settlement of their claim. (Dkt. 93–35) Any individuals who received a full refund for all of the “out of commitment” charges made to their accounts have been excluded from the class. Thus, the class members who received refunds have only received partial refunds. As to its settlement defenses, SeaWorld will be required to prove that the parties actually entered into superseding agreements with the intent to settle their existing breach of contract or EFTA dispute. SeaWorld therefore contends that individualized inquiries into each class member's intent regarding *298 the refund will be required. However, there is common proof on the record that
SeaWorld did not intend to effectuate a settlement of legal claims when it offered partial refunds to its customers. SeaWorld's corporate representative testified that refunds were given as a mere “courtesy” or “goodwill adjustment.” (Dkt. 93–3 at P. 89:5–90:24) This is also reflected in the document detailing the July 2013 change to SeaWorld's refund policy, which states: “[I]n the past, you have been able to issue up to three months refund on accounts that auto[-]renewed beyond commitment,
as a courtesy to the guest.” (Dkt. 93–19 (emphasis added))
SeaWorld's “damages” defenses (set-off and failure to mitigate damages) also do not preclude a finding of predominance. As to set-off, SeaWorld disclosed during the deposition of its corporate representative that the set-off defense “applies to anyone who did not make all [of] the in-commitment payments for the EZpay Pass, or otherwise owes SeaWorld money.” (Dkt. 93–35) However, the class only includes individuals who made all of the “in-commitment” payments on their passes. SeaWorld asserts that there may be individuals who still owe SeaWorld money for failing to pay under a prior or different EZ Pay pass. If this is true for any individual class member, SeaWorld should be able to easily determine whether and how much money a class member owes it from its own records.
SeaWorld also contends that it would be entitled to a set-off for some class members who may have received a “chargeback” directly from their bank or credit card company if and when the class member disputed SeaWorld's charges. SeaWorld generally asserts, without citation to any direct legal authority, that class members cannot assert their bank or credit company's “chargeback rights” in this action. However, SeaWorld does not state that it has already issued full refunds to either the class member or the class member's bank or credit card company. If a bank or credit card company or other payment processor involved in the chain of the chargeback has a right of repayment from SeaWorld under these circumstances, this is a claim available to the bank, credit card company, or payment processor and may be pursued as a lien against the class member's recovery in this suit. Accordingly, the Court finds that SeaWorld likely cannot assert the affirmative defense of set-off to a class member's potential recovery where a class member has received a chargeback as a result of a dispute filed with their bank or credit card company.
59Even if SeaWorld later establishes that it is entitled to assert a set-off defense because it has processed a payment as a result of a chargeback, SeaWorld should be able to determine the amount based on its own records or the records of its payment processors. Because the affirmative defense of set-off operates only to reduce an individual class member's damages, the assertion of the defense against some class members generally will not defeat class certification. See, e.g., James D. Hinson Elec. Contracting Co. v. BellSouth Telecommunications, Inc., 275 F.R.D. 638, 647–48 (M.D. Fla. 2011) (“[Defendant]'s set-off claims will affect only the measure of damages, and individual determinations of damages do not ordinarily preclude certification when liability can be established on a class-wide basis.”); see also Allapattah Servs., Inc. v. Exxon Corp., 157 F.Supp.2d 1291, 1322 (S.D. Fla. 2001), aff'd, 333 F.3d 1248 (11th Cir. 2003), aff'd sub nom. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (“In a class action, [a set-off defense] may be filed during the claims administration process solely to defeat or diminish the amount of a class member's recovery, but may not exceed the amount of the claim.”).
60As to the failure to mitigate damages, SeaWorld contends that it has a valid defense for failure to mitigate damages where class members reviewed their bank or credit card statements, yet failed to take any action to terminate their auto-renewed contracts for a matter of months or years. SeaWorld contends that the resolution of this defense will require individualized inquiry because there is no other method to determine whether class members reviewed their credit card or bank statements. However, courts generally treat the failure to mitigate defense in the same manner as other individualized *299 damages issues. See In re Checking Account Overdraft Litig., 307 F.R.D. 630, 651 (S.D. Fla. 2015) (“Mitigation of damages, like the other damage-related affirmative defenses, is not barrier to class certification.”); Terrill v. Electrolux Home Prod., Inc., 295 F.R.D. 671, 697 (S.D. Ga. 2013), vacated and remanded on other grounds in Brown v. Electrolux Home Prod., Inc., 817 F.3d 1225 (11th Cir. 2016) (“although Defendant's allegation that each purported class member failed to mitigate the member's own damages weighs against class certification, that issue does not preclude class certification where many other common issues exists and predominate the potentially individualized issue of mitigation of damages.”); In re Visa Check/MasterMoney Antitrust Litig., 192 F.R.D. 68, 86 (E.D.N.Y. 2000) (“However, the presence of individualized defenses, such as mitigation, going only to damages are generally regarded as no barrier to class certification.”)
Furthermore, courts have also recognized that many “tools” exist to allow courts to effectively and efficiently deal with individualized damages issues that may arise in a class action. See In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2d Cir. 2001) (tools include: “(1) bifurcating liability and damage trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages; (4) creating subclasses; or (5) altering or amending the class.”); see also In re Currency Conversion Fee Antitrust Litig., 264 F.R.D. 100, 116 (S.D.N.Y. 2010) (finding that individualized mitigation defenses could be dealt with through the use of management tools if and when those issues arise).
In accordance with the above analysis, the Court finds that the issues discussed above under the commonality requirement, which arise from SeaWorld's common course of conduct taken pursuant to a form contract executed by all class members, predominate over any individualized issues such as the precise calculation of damages or resolution of affirmative defenses. Thus, the predominance requirement under Rule 23(b)(3) has been satisfied.
61“The focus of the superiority analysis is on ‘the relative advantages of a class action suit over whatever other forms of litigation might be realistically available to the plaintiffs.’ ” Palm Beach Golf Ctr., 311 F.R.D. at 699 (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1269 (11th Cir. 2004)). In analyzing this requirement, courts often look at the size of the class, the similarity of the claims, and the size of the potential recovery for individual class members. See id. at 699(“Given the large number of purported members in this suit and the similarity of their claims, disposition by class action is an efficient use of judicial resources. Moreover, the relatively small potential recovery in individual actions ... and reduced likelihood that plaintiffs will bring suit also weighs in favor of class resolution.”). SeaWorld argues that class-wide treatment of the claims is unmanageable, not superior. However, this argument is premised on SeaWorld's contentions that Plaintiffs failed to identify an ascertainable class and because common issues do not predominate. The Court has already addressed and rejected these contentions.
62Here, the Court finds that the class mechanism is superior. The class potentially consists of over 120,000 individuals who have common claims against SeaWorld resulting from the alleged breach of a form contract. The recovery for many class members will be very small, consisting of only a few monthly “out of commitment” payments. The fact that many claims will be small in relation to the costs and expenses of litigating the claims makes it highly unlikely that the claims would be pursued individually. Although SeaWorld argues that individual claims under the EFTA may be tried separately just as efficiently because the statute provides for recovery of statutory damages, costs, and attorney's fees, the Court finds that splitting the breach of contract and EFTA claims of the subclass members would be inefficient and duplicative.
Therefore, the Court finds that Plaintiffs have satisfied the superiority requirement under Rule 23(b)(3).
