2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-6-2012

Charles McNair v. Synapse Grp Inc

Precedential or Non-Precedential: Precedential

Docket No. 11-1743

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Charles McNair v. Synapse Grp Inc" (2012). 2012 Decisions. Paper 1213.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/1213
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-1743

_____________

CHARLES MCNAIR; THEODORE AUSTIN; DANIELLE 

DEMETRIOU; 

USHMA DESAI; JULIE DYNKO,

 Appellants

v.

SYNAPSE GROUP INC.

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 06-cv-5072)

District Judge: Hon. Jose L. Linares

_______________

Argued

January 10, 2012

Before: FUENTES, JORDAN, and NYGAARD, Circuit 

Judges.
2

(Filed: March 6, 2012)

_______________

Paul Diamond

1605 John Street - #102

Fort Lee, NJ 07024

Gary S. Graifman [ARGUED]

Kantrowitz, Goldhamer & Graifman

747 Chestnut Ridge Road - #200

Chestnut Ridge, NY 10977

Michael S. Green

Green & Associates

522 Route 18 - #5

P.O. Box 428

East Brunswick, NJ 08816

 Counsel for Appellants

Geoffrey W. Castello, III

Lauri A. Mazzuchetti

Vincent P. Rao, II

Kelley, Drye & Warren

200 Kimball Drive

Parsippany, NJ 07054

Thomas E. Gilbertsen [ARGUED]

Veneble

575 7th Street, N.W.

Washington, DC 20004

 Counsel for Appellee

_______________
3

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

A group of former customers (collectively, 

“Appellants” or “the named plaintiffs”) of Synapse Group 

Inc. (“Synapse”) successfully petitioned under Federal Rule 

of Civil Procedure 23(f)1 for interlocutory review of an order 

denying class certification. More specifically, Appellants 

challenge the decision of the United States District Court for 

the District of New Jersey to deny certification of a Rule 

23(b)(2) injunctive relief class consisting of Synapse 

customers who received automatic renewal notifications in 

connection with magazine subscriptions obtained through

Synapse. Because we conclude that Appellants, none of 

whom are current Synapse customers, lack standing to seek 

the remedy they are pursuing on behalf of the class, we will 

affirm the District Court’s order denying class certification.2

 1 That rule provides that “[a] court of appeals may 

permit an appeal from an order granting or denying classaction certification ... if a petition for permission to appeal is 

filed with the circuit clerk within 14 days after the order is 

entered.” Fed. R. Civ. P. 23(f). We will hereafter refer to the 

Federal Rules of Civil Procedure simply as “Rules.”

2 Appellants have moved to file Volume IV of the 

appendix and their reply brief under seal because some of the 

materials therein were produced under a confidentiality order 

and filed under seal in the District Court. Appellants, 

however, have failed to limit the scope of their request by 

asking us to seal only those materials that are actually the 

subject of the confidentiality order, and we will therefore 
4

I. Background

A. Synapse’s Magazine Sales

Synapse, a wholly-owned subsidiary of Time Inc. 

(“Time”), is the largest marketer of magazine subscriptions in 

the United States. It conducts its business operations under 

several other names, including Magazine Direct, New Sub 

Magazine Services, SynapseConnect, Synapse Solutions, and 

CAP Systems. Aiming to “bring magazine publishers and 

potential subscribers together by promoting trial offers that 

might evolve into long-term subscriptions,” Synapse markets 

over 800 magazines to consumers through “credit card 

issuers, catalogers, retailers, airlines, and internet companies.” 

(App. at 643.) 

 

deny their request, without prejudice to their submitting an 

appropriately limited motion. See L.A.R. 30.3(b) (2008)

(“Records sealed in the district court ... must ... not be 

included in the paper appendix.”); see also Couch v. Bd. of 

Trs. of Mem’l Hosp. of Carbon Cnty., 587 F.3d 1223, 1245 

n.25 (10th Cir. 2009) (denying “the parties’ motions to seal 

both the record on appeal and their briefs” because “[t]he 

court’s business is public business”); Pansy v. Borough of 

Stroudsburg, 23 F.3d 772, 785 (3d Cir. 1994) (“Disturbingly, 

some courts routinely sign orders which contain 

confidentiality clauses without considering the propriety of 

such orders, or the countervailing public interests which are 

sacrificed by the orders.”). To the extent we have not already 

relied on the materials filed under seal in setting forth the 

facts of this case, we will delay the effective date of this 

denial for two weeks, to allow Appellants an opportunity to 

prepare a properly redacted filing.
5

The majority of Synapse’s magazine subscriptions are 

offered under what is known as a “continuous service plan” 

whereby a customer’s subscription does not expire unless and 

until the customer opts to cancel it. To secure subscribers to 

those plans, Synapse offers introductory promotional offers 

under which customers can receive magazine subscriptions 

for free or at greatly reduced rates. Although the offers are 

varied, all customers provide a credit or debit card number 

upon signing up and are informed that, once the promotional 

rate expires, their card will be charged at the regular

subscription rate, unless the subscription is cancelled. 

1. Synapse’s Advance Notification of 

Future Charges

Prior to processing charges for the promised rate 

increase, however, Synapse provides its customers with

advance notice. That notice, made in accordance with the 

terms of Synapse’s initial offer, explains the impending 

charge for continued services and provides a toll-free 

telephone number for the customer to call to cancel his or her 

magazine subscriptions. Before 2009, Synapse provided the 

majority of those notifications by sending its customers a 

sealed double postcard with a visible exterior and a concealed 

interior (the “Standard Postcard”). The front of the Standard 

Postcard’s exterior was addressed to the customer and 

contained no other text besides a return address. The back of 

the Standard Postcard’s exterior appeared as follows:
6

(App. at 507.) The Standard Postcard’s interior, which, 

again, was only visible if opened, stated the names of the 

magazines subscribed to, the number of issues ordered, the 

cost of the automatic renewal, and a toll-free number for 

customers to call to cancel their magazine subscriptions, if 

they so desired. 

Synapse’s market testing demonstrated that an explicit 

statement on the exterior of the Standard Postcard that it was 

an “automatic renewal notice” or an “automatic magazine 

renewal” would increase the number of pre-billing

cancellations. For example, adding the words “Your 

Automatic Magazine Renewal Notice” to the front of the 
7

Standard Postcard’s exterior resulted in an increase of several 

percentage points in pre-billing cancellations. An expert 

retained by Appellants took that into account in opining that 

the Standard Postcard was “intentionally designed to avoid 

giving customers notice of renewal.” (App. at 1098.)

Beginning in February 2009, Synapse voluntarily 

began using a new, non-folded, postcard to provide its 

advance notifications to customers (the “Single Postcard”). 

Unlike the Standard Postcard, the Single Postcard contains no 

interior. The back of the Single Postcard has a picture of 

magazines in a mailbox and states that magazine 

subscriptions are available for up to 40% off newsstand 

prices. The front of the Single Postcard contains two panels. 

On the left side, it states in large print: “The low rate for your 

next year of issues is guaranteed!” (App. at 1483.) And then, 

in smaller print, it says:

We guarantee a hassle-free subscription. 

You’ll never miss an issue. No bills, reminders, 

publisher renewal notices and no telemarketing 

calls. We do the work for you by automatically 

extending your subscription each year for as 

long as you want your selections.

Your service includes convenient home 

delivery and huge savings off the 

newsstand price.

We guarantee to send you advance notice 

every year about your next subscription 

period and rates. We will send you notice that 

spells out: your guaranteed low rate, your 
8

number of issues and when your credit card will 

be charged. If you don’t wish to continue, you 

can simply cancel before your new term begins.

We guarantee you outstanding savings. As a 

Valued Subscriber, enjoy substantial savings off 

cover price. For more great deals, visit 

www.magazineoutlet.com.

(Id.) On the right side, the following appears:

Thank you for being a valued customer. We 

hope you have been enjoying your service, as 

your complete satisfaction is our ultimate goal.

For your convenience, we will continue to 

ensure that you don’t receive extra unwanted 

mail – the multiple renewal notices and bills 

that normally come with a subscription. For the 

next term of issues the credit card you 

previously provided for your selections and will 

be charged for [magazine title], at $[price] ... . 

If you do not wish to continue, call 800 927 

9351 by [date] and no charge will appear. As 

long as you are satisfied, your selections will 

continue through our open-ended, customerfriendly subscription method – continuous 

service. Of course, we will always send you a 

courtesy reminder before you are ever billed to 

ensure your satisfaction. Remember, you can 

always look for the expiration date on your 

magazine label. You may cancel anytime and 

receive a refund of unserved issues. If a title 

ceases, it will be replaced with one of equal or 
9

greater value. We hope you enjoy your 

selections and look forward to serving you in 

the future. Please keep this notice for your 

records.

(Id.) 

Appellants’ expert reviewed Synapse’s Single Postcard 

and concluded that it, like the Standard Postcard, is “an 

exercise in deception” inasmuch as it provides scant

information and is designed to appear like a direct mail offer 

for a new subscription rather than an automatic renewal 

notice for an existing subscription.3

 3 Appellants believe that Synapse’s use of the Standard 

Postcard and Single Postcard violates accepted standards in 

the publishing industry, as evidenced by an agreement 

between Synapse’s parent company, Time, and 23 states’ 

Attorneys General. That agreement, known as the Assurance 

of Voluntary Compliance or Discontinuance (the 

“Assurance”), provides that Time and its wholly-owned 

subsidiaries must send continuous-service-plan customers 

advance notification reminders that clearly and conspicuously 

identify the relevant terms concerning automatic renewals. 

Although Appellants acknowledge that Synapse is not bound 

by the Assurance because it did not become a wholly-owned 

subsidiary of Time until after the Assurance was signed, they 

contend that the Assurance demonstrates that there are 

governing industry standards which Synapse is knowingly 

violating by using deceptive advance notification reminder 

mailings. 

 (App. at 1495.)
10

2. Synapse’s Cancellation Process

As detailed above, while the effectiveness of the 

message may be open to dispute, both the Standard Postcard 

and the Single Postcard state that a customer will be 

automatically charged a renewal rate if the customer does not 

cancel his subscription before a certain date. If a customer’s 

subscription is not timely cancelled, however, the customer 

can still seek a complete or pro rata refund. There are at least 

two ways to reach Synapse to request cancellation or seek 

reimbursement of an unwanted automatic renewal charge. 

The customer may either call the number listed on the 

advance notification mailing, or he may call a toll-free 

number that is automatically listed on his credit or debit card 

statement when a charge is submitted by Synapse. 

While the toll-free number that appears on a 

customer’s billing statement differs from the phone number 

that appears on Synapse’s advance renewal notices, both lead 

customers to Synapse’s Interactive Voice Recognition 

(“IVR”) telephone system. That system is meant to be

entirely automated, so that a caller will not ordinarily interact 

with a human being, but the IVR usually does permit 

customers to reach a live operator by pressing zero or failing 

to respond to the IVR’s prompts. When a customer attempts 

to cancel his magazine subscriptions using the IVR system, 

the IVR attempts to retain that business by presenting socalled “save offers.” On average, approximately 30% of 

callers accept a save offer. The remaining 70% of Synapse 

customers who call to cancel end up doing so, and most are, 

in fact, able to accomplish that without speaking with a live

operator. 
11

B. Procedural History

Appellants, who are “residents”4 of New Jersey, New 

York, or the District of Columbia, received the Standard 

Postcard when they were Synapse customers and brought suit 

against Synapse after allegedly suffering monetary injury as a 

result of Synapse’s deceptive business practices.

5

 4 In their second amended complaint, the operative 

pleading in this case, Appellants refer to themselves as 

“residents” of their respective states, not as “citizens” or 

“domiciliaries” of those states. (See, e.g., App. at 293 

(“McNair is a resident of ... New Jersey ... having a place of 

residence in ... New Jersey.”).) Although those averments 

need not, and do not, serve as a basis for our disposition, they 

are jurisdictionally inadequate in this diversity of citizenship 

case. See Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 

1972) (“[M]ere residency in a state is insufficient for 

purposes of diversity [of citizenship].”). So too is Appellants’

allegation of Synapse’s citizenship, which, instead of 

identifying Synapse’s principal place of business and state of 

incorporation, refers only to “a” principal place of business. 

(App. at 294); see 28 U.S.C. § 1332(c)(1) (“[A] corporation 

shall be deemed to be a citizen of every State ... by which it 

has been incorporated and of the State ... where it has its 

principal place of business ... .”); J & R Ice Cream Corp. v. 

Cal. Smoothie Licensing Corp., 31 F.3d 1259, 1265 n.3 (3d 

Cir. 1994) (alleging that a corporation has “‘a’ principal place 

of business” in a given state is insufficient to establish 

domicile so as to “properly plead diversity jurisdiction”). 

This lack of care in invoking the District Court’s jurisdiction 

is regrettable.

5 Appellants do not allege that they received Synapse’s 
12

1. Appellants’ Initial Motion for Class 

Certification

On June 29, 2009, Appellants moved for class 

certification based on a prior iteration of their complaint, 

which pleaded consumer fraud claims for monetary and 

injunctive relief under New Jersey, New York, and District of 

Columbia law. McNair v. Synapse Grp., Inc., No. 06-cv-5072, 

2009 WL 1873582, at *8, *12 (D.N.J. June 29, 2009). 

Specifically, Appellants asked the District Court to certify the 

following class under Rules 23(b)(2) and (b)(3): 

From October 23, 2000 to the date of the order 

certifying the class, all persons residing in New 

Jersey, New York and the District of Columbia 

who accepted an initial magazine subscription, 

or subscriptions, offered by Synapse, were sent 

[the Standard Postcard] notification with the 

“standard exterior” in advance of an automatic 

charge for an additional term or renewal of their 

subscription(s), and either before or after being 

charged for the additional term or renewal of 

their subscription(s):

(1) called the Synapse “IVR,” and responded 

affirmatively to the recorded question asking 

whether they were calling to cancel a magazine 

or selected an option to cancel a magazine from 

the list of options presented, and rejected all 

“save attempts” that may have been offered; or,

 

new Single Postcard.
13

(2) fully cancelled the subscription(s) by 

speaking with a Synapse live operator; and, 

were not refunded all charges for the additional 

term or renewal of the magazine subscription(s) 

and/or were not reimbursed upon request to 

Synapse all bank overdraft charges, on their 

debit or credit card(s). Excluded from the class 

are defendant, its agents and affiliates, and any 

government entities.

Id. at *6 (quoting Appellants’ Reply Mem. of Law in Support 

of Class Cert.).

The District Court denied the motion. Observing that 

Appellants’ various consumer fraud claims required a causal 

link between the plaintiffs’ alleged injuries and the 

defendant’s alleged deception, the District Court concluded 

that predominance was lacking because it could not be 

presumed that all of the class members were deceived by 

Synapse’s marketing techniques. Id. at *12. In fact, the 

Court noted that two of the five named plaintiffs were not 

deceived by the Standard Postcard, as they “read ... and acted 

on it.” Id. Accordingly, as the District Court held, a Rule 

23(b)(3) damages class could not be certified. The District 

Court also rejected Appellants’ request for certification as an 

injunctive relief class under Rule 23(b)(2), reasoning that “the 

predominant relief sought ... [was] money damages,” and 

“certification under Rule 23(b)(2) [was therefore] not 

appropriate.” Id. at *7. The Court stated, however, that “[a] 

differently defined class or one that does not predominantly 

seek money damages may pass muster.” Id. at *14.
14

2. Appellants’ Motion to File an Amended 

Complaint

Appellants did not challenge the District Court’s 

decision denying their initial motion for class certification. 

Instead, on August 10, 2009, they filed a motion proposing a 

revised complaint that sought injunctive relief only. See 

McNair v. Synapse Grp., Inc., No. 06-cv-5072, 2009 WL 

3754183, at *1 (D.N.J. Nov. 5, 2009). Synapse opposed the

new complaint on several grounds, arguing that, under Article 

III of the United States Constitution, Appellants lacked 

standing because they were no longer Synapse customers and 

therefore could not claim a likelihood of future injury. See id.

at *3 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 103

(1983)). Synapse also argued that Appellants lacked statutory 

standing under New Jersey law because their amended

complaint abandoned all claims for monetary relief.6

 See id. 

at *4-5 (citing Weinberg v. Sprint Corp., 801 A.2d 281, 291

(N.J. 2002), for the proposition that Appellants lacked 

statutory standing because Appellants failed to plead “any 

claim for ascertainable, money, loss”). 

Appellants responded that they have Article III 

standing to seek injunctive relief because they are likely to be 

 6 Synapse did not lodge a similar argument with 

respect to Appellants’ claims under New York and District of 

Columbia law. They did, however, argue that Appellants’ 

requested amendment would, as a whole, be futile because the 

proposed class failed to meet the standards necessary for 

certification. The District Court rejected that contention, 

reasoning that “any ruling on whether class certification is 

warranted is premature.” Synapse, 2009 WL 3754183, at *5.
15

Synapse customers in the future. The District Court agreed

with that theory. Although it acknowledged that none of the 

named plaintiffs claimed to be current Synapse customers, the 

Court decided that they had made a “sufficient showing that 

they are likely to become Synapse customers in the future”

because Synapse is the leading marketer of magazine 

subscriptions and offers compelling magazine deals in which 

it does not clearly identify itself as the distributor. Id. at *4. 

The District Court further concluded that the named plaintiffs 

were likely to suffer from the alleged deception again because 

“the whole point of” the advance notification renewal 

postcards is to fool consumers into discarding it. Id. 

However, because Appellants’ complaint had abandoned

claims for monetary relief, the District Court agreed with 

Synapse that Appellants lacked statutory standing to seek 

injunctive relief under New Jersey law. Id. at *5.

3. Appellants’ Second Amended Complaint 

and Motion for Class Certification

Appellants filed a timely motion for reconsideration on 

November 17, 2009, apprising the Court that they had, in fact, 

intended to seek monetary relief in their amended complaint –

albeit only on behalf of themselves individually – and that 

they therefore had statutory standing to seek injunctive relief 

under New Jersey law. The District Court, over Synapse’s 

objection, entered an order permitting Appellants to again 

amend their complaint for the purpose of clarifying their 

assertion of individual claims for monetary relief. Appellants 

did so on December 31, 2009, filing a second amended 

complaint (the “Complaint”),

7

 7 Appellants second amended complaint is actually the 

which is the operative pleading 
16

before us on this appeal and which asserts three separate 

consumer fraud claims under New Jersey, New York, and 

District of Columbia law. It seeks both monetary and 

injunctive relief for the individual Appellants but only 

injunctive relief for class members. 

On June 18, 2010, Appellants moved for class 

certification under Rule 23(b)(2), asking the District Court to 

certify the following class:

All persons residing in New Jersey from 

October 23, 2000 to the date of the order 

certifying the class, and all persons residing in 

New York and the District of Columbia from 

 

fifth iteration of Appellants’ pleading filed on the District 

Court’s docket over the course of this litigation. The first 

complaint, filed on October 23, 2006, named only Charles 

McNair as a plaintiff. The second, filed on August 2, 2007, 

added Theodore Austin, Danielle Demetriou, Steven Novak, 

Rod Bare, Ushma Desai, and Julie Dynko as named plaintiffs. 

The third, submitted for the District Court’s review by way of 

Appellants’ August 10, 2009 motion to file an amended 

complaint, dropped Bare and Novak as plaintiffs. The fourth, 

submitted by way of Appellants’ November 17, 2009 motion 

for reconsideration, added requests for monetary relief on 

behalf of the named plaintiffs remaining in Appellants’ third 

complaint. The fifth and final complaint was filed on 

December 31, 2009, after the District Court granted 

Appellants’ November 17 motion to reconsider and afforded 

them an opportunity to prepare another version of the

complaint. 
17

October 23, 2003 to the date of the order 

certifying the class, who as customers of 

Synapse were mailed a postcard advance 

notification of an automatic charge for an 

additional term or renewal of their magazine 

subscription(s) that failed to state that he or she 

is an Automatic Renewal Customer or is subject 

to an automatic charge, in type larger and more 

prominent than the predominant type in the 

notice. Excluded from the class are defendant, 

its agents and affiliates, and any government 

entities.

(App. at 485.) Appellants also sought to certify two

subclasses:

All members of the Class who were sent 

Defendant’s [Standard Postcard] as the advance 

notification of an automatic charge for an 

additional term or renewal of their 

subscription(s).

... .

Members of the Class for whom the postcard 

and/or billing descriptor on their credit card or 

bank statement provided a telephone number to 

an IVR that did not audibly state how to transfer 

to a live operator.

(Id.) 

The District Court denied Appellants’ motion on 

November 15, 2010, holding that the putative class lacked the 
18

requisite cohesion for purposes of Rule 23(b)(2). See McNair 

v. Synapse Grp., Inc., No. 06-cv-5072, 2010 WL 4777483, at 

*7-8 (D.N.J. Nov. 15, 2010). According to the Court,

certification was inappropriate because the injunctive relief 

sought would not “benefit the entire class” since Synapse’s 

conduct did not affect all class members in a similar way. Id.

at *7; see id. at *6 (“Plaintiff McNair testified that he read the 

card and understood it ... . For class members like Mr. 

McNair, the relief requested would have no benefit.”).

Appellants were granted interlocutory appellate review 

pursuant to Rule 23(f), and this appeal followed.8

 8 Before seeking interlocutory appellate review, 

Appellants asked the District Court to reconsider its order 

denying class certification. The District Court denied that 

motion. McNair v. Synapse Grp., Inc., No. 06-cv-5072, 2011 

WL 666036 (D.N.J. Feb. 14, 2011). Appellants thereafter 

filed their Rule 23(f) petition, which was timely as measured 

from the order denying reconsideration, but untimely as 

measured from the order denying class certification. We 

granted Appellants’ petition, concluding – as our sister 

circuits have – that the period for filing a Rule 23(f) petition 

“does not start to run until the district judge rules on [a 

timely] motion for reconsideration” of a class certification 

order. Shin v. Cobb Cnty. Bd. of Educ., 248 F.3d 1061, 1064-

65 (11th Cir. 2001); see Blair v. Equifax Check Servs., Inc., 

181 F.3d 832, 837 (7th Cir. 1999) (holding that, although 

Federal Rule of Appellate Procedure 4(a)(4) does not toll the 

time to appeal an interlocutory order, a timely-filed motion 

for reconsideration of a class certification order nevertheless 

“defers the time for appeal until after the district judge has 

disposed of the motion”).
19

II. Discussion9

As it did before the District Court, Synapse argues that 

Appellants lack Article III standing to pursue injunctive 

relief. If Synapse is correct, Appellants are not entitled to 

represent the putative Rule 23(b)(2) class they asked the 

District Court to certify. See, e.g., Prado-Steiman ex rel. 

Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000) (“It 

should be obvious that there cannot be adequate typicality 

between a class and a named representative unless the named 

representative has individual standing to raise the legal claims 

 9 The District Court had jurisdiction, if at all, pursuant 

to 28 U.S.C. § 1332(d)(2)(A), which permits district courts to 

exercise “original jurisdiction of any civil action in which the 

matter in controversy exceeds the sum or value of 

$5,000,000, exclusive of interest and costs, and is a class 

action in which ... any member of a class of plaintiffs is a 

citizen of a State different from any defendant.” We have 

appellate jurisdiction under 28 U.S.C. § 1292(e) and Rule 

23(f), and review the District Court’s order denying 

certification for an abuse of discretion. Behrend v. Comcast 

Corp., 655 F.3d 182, 189 (3d Cir. 2011). Our review is 

plenary, however, to the extent a threshold question of law, 

such as Article III standing, bears on our review of that order.

See Gen. Instrument Corp. of Del. v. Nu-Tek Elecs. & Mfg., 

Inc., 197 F.3d 83, 86 (3d Cir. 1999) (“We exercise plenary 

review of standing ... .); see also Cole v. Gen. Motors Corp., 

484 F.3d 717, 721 (5th Cir. 2007) (reviewing a certification 

order under Rule 23(f), and observing that the standing 

inquiry “is a question of law that [is] review[ed] de novo”).
20

of the class.”). We thus consider whether Appellants have

standing to seek injunctive relief for the class.

10

In order to have Article III standing to sue, a plaintiff 

bears the burden of establishing “(1) [an] injury-in-fact ... 

that is (a) concrete and particularized, and (b) actual or 

imminent, not conjectural or hypothetical; (2) a causal 

connection between the injury and the conduct complained 

of; and (3) [a likelihood] ... that the injury will be redressed 

by a favorable decision.” Danvers Motor Co., Inc. v. Ford 

Motor Co., 432 F.3d 286, 290-91 (3d Cir. 2005); see N.J. 

 10 Although the scope of our Rule 23(f) appellate 

review is limited, see McKowan Lowe & Co., Ltd. v. Jasmine, 

Ltd., 295 F.3d 380, 390 (3d Cir. 2002) (observing that “Rule 

23(f) inquiries” are limited “to class certification issues”), we 

join our sister circuits in considering Article III standing as a 

necessary threshold issue to our review of an order denying 

class certification. See Lindsay v. Gov’t Emps. Ins. Co., 448 

F.3d 416, 420 (D.C. Cir. 2006) (stating that constitutional 

standing may be considered in an appeal under Rule 23(f)); 

Olden v. LaFarge Corp., 383 F.3d 495, 498 (6th Cir. 2004) 

(“The question of subject matter jurisdiction is a prerequisite 

to class certification and is therefore properly raised in this 

Rule 23(f) appeal.”); City of Hialeah, Fla. v. Rojas, 311 F.3d 

1096, 1101 (11th Cir. 2002) (“[A] determination on standing 

is a part of the class certification analysis, and thus, subject to 

review under Rule 23(f).” (citation and internal quotation 

marks omitted)); Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 

F.3d 290, 294 (5th Cir. 2001) (“Standing is an inherent 

prerequisite to the class certification inquiry; thus, despite the 

limited nature of a Rule 23(f) appeal, defendants can raise the 

issue of standing ... .”).
21

Physicians, Inc. v. President of U.S., 653 F.3d 234, 241 (3d 

Cir. 2011) (affirming dismissal for lack of standing because 

the plaintiffs failed to meet “their burden in pleading facts 

that establish the requisite injury in fact and therefore fail[ed]

to demonstrate standing”). When, as in this case, prospective 

relief is sought, the plaintiff must show that he is “likely to 

suffer future injury” from the defendant’s conduct. Lyons, 

461 U.S. at 105. In the class action context, that requirement 

must be satisfied by at least one named plaintiff. See Warth 

v. Seldin, 422 U.S. 490, 502 (1975) (“Petitioners must allege 

and show that they personally have been injured, not that 

injury has been suffered by other, unidentified members of 

the class to which they belong and which they purport to 

represent.”); O’Shea v. Littleton, 414 U.S. 488, 494 (1974) 

(“[I]f none of the named plaintiffs purporting to represent a 

class establishes the requisite of a case or controversy with 

the defendants, none may seek relief on behalf of himself or 

any other member of the class.”); see also Ellis v. Costco 

Wholesale Corp., 657 F.3d 970, 978 (9th Cir. 2011) 

(“Standing exists if at least one named plaintiff meets the 

requirements.”). The threat of injury must be “sufficiently 

real and immediate,” Roe v. Operation Rescue, 919 F.2d 857, 

864 (3d Cir. 1990) (citation and internal quotation marks 

omitted), and, as a result of the immediacy requirement, 

“[p]ast exposure to illegal conduct does not in itself show a 

present case or controversy regarding injunctive relief ... if 

unaccompanied by any continuing, present adverse effects,” 

O’Shea, 414 U.S. at 495-96; see Summers v. Earth Island 

Inst., 555 U.S. 488, 493 (2009) (“To seek injunctive relief, a 

plaintiff must show that he is under threat of suffering ‘injury 

in fact’ ... .” (emphasis added)); Lyons, 461 U.S. at 105 

(“Lyons’ standing to seek the injunction requested depended 

on whether he was likely to suffer future injury ... .”).
22

Pointing to the fact that Appellants are no longer 

customers, Synapse argues that they have no cognizable 

interest in the prospective relief sought in the Complaint. 

Appellants, in response, press the same arguments for

standing that they made to the District Court, namely, that 

they are subject to a sufficiently real and immediate threat of 

future harm because Synapse is the leading marketer of 

magazine subscriptions and bombards the public with its 

offers; because it offers compelling deals in which it does not 

clearly identify itself; and because it sends customers advance 

notifications that are, by design, meant to fool consumers into 

discarding the notification received. Appellants further 

respond that they have accepted magazine offers from 

Synapse on more than one occasion. The District Court 

accepted those arguments and also seemed to agree with 

Appellants that the “capable of repetition yet evading review” 

doctrine applies,11

 11 Although federal courts generally “lack jurisdiction 

when ‘the issues presented are no longer live or the parties 

lack a legally cognizable interest in the outcome,’” Merle v. 

United States, 351 F.3d 92, 94 (3d Cir. 2003) (citation and 

internal quotation marks omitted), the “capable of repetition

yet evading review” doctrine permits consideration of a case 

that “would otherwise be deemed moot” when “‘(1) the 

challenged action is, in its duration, too short to be fully 

litigated prior to cessation or expiration, and (2) there is a 

reasonable expectation that the same complaining party will 

be subject to the same action again,’” id. (quoting Spencer v. 

Kemna, 523 U.S. 1, 17 (1998)). 

because holding otherwise would unfairly 

“require [Appellants] to allow themselves to be continually 

billed for unwanted renewals either before or during the 

course of the litigation merely for standing purposes.” 
23

Synapse, 2009 WL 3754183, at *4 (internal quotation marks 

omitted). We disagree, and conclude that Appellants have not 

met their burden of establishing that they have standing to 

seek injunctive relief. 

Appellants have effectively acknowledged that they, 

unlike the class members they seek to represent, are not 

Synapse customers and are thus not currently subject to 

Synapse’s allegedly deceptive techniques for obtaining 

subscription renewals.

12

 12 Although the Complaint does not expressly state that 

Appellants are former Synapse customers, it – like 

Appellants’ briefing and representations at oral argument –

implies as much. So does the appellate record. Indeed, with 

the exception of one of the named plaintiffs, Dynko, who was

seemingly still a Synapse customer as of July 2008, the record 

reflects that none of the other named plaintiffs in this case 

were Synapse customers by that point. (See App. at 964 

(Austin); 977 (Demetriou); 986 (Desai); 1005 (McNair).) 

Because the Complaint and Appellants’ ensuing class 

certification motion were filed over a year later, and in light 

of the Complaint’s failure to aver that Dynko received the 

Single Postcard that Synapse began using in 2009, see supra

note 

 (See App. at 316 (alleging in the 

Complaint that “[e]ach of the named [p]laintiffs has standing 

to seek injunctive relief since they are likely to become 

magazine customers of Defendant in the future”).) Unless 

5, the only conclusion we can logically reach is that the 

one named class member who (perhaps) was a Synapse 

customer in July 2008 terminated her Synapse service by the 

time the Complaint was filed in December 2009. That, of 

course, occurred well before Appellants’ June 2010 motion 

for class certification. 
24

they decide to subscribe again, then, there is no reasonable

likelihood that they will be injured by those techniques in the 

future. They do not allege that they intend to subscribe again. 

Instead, they say that they may, one day, become Synapse 

customers once more because “Synapse’s offers are 

compelling propositions as evidenced by [Appellants’] own 

acceptance of these offers (even on more than one occasion) 

... .” (App. at 317.)

Perhaps they may accept a Synapse offer in the future, 

but, speaking generally, the law accords people the dignity of 

assuming that they act rationally, in light of the information 

they possess. Cf. Atl. Gypsum Co., Inc. v. Lloyds Int’l Corp., 

753 F. Supp. 505, 514 (S.D.N.Y. 1990) (rejecting the

plaintiffs’ contention that “defendants advanced money to [a] 

venture with the intention of driving it into the ground so that 

they could control the failed venture and then wait in line 

with other creditors in a bankruptcy proceeding” because that

“view of the facts defies economic reason, and therefore does 

not yield a reasonable inference of fraudulent intent”); John 

N. Drobak, Cognitive Science, in The Elgar Companion to 

Law and Economics 453, 453 (Jürgen G. Backhaus ed., 2d ed. 

2005) (“Much of legal theory, like economics, assumes that 

people act rationally or at least can be induced to act 

rationally by the correct rules.”). Whether they accept an 

offer or not will be their choice, and what that choice may be 

is a matter of pure speculation at this point.13

 13 If Appellants’ suggestion is that they may not be 

able to help themselves when confronted with a really good 

subscription offer, they have still not provided a basis for 

standing. Pleading a lack of self- restraint may elicit 

 Indeed, while 
25

the injuries Appellants allegedly suffered when they were 

Synapse customers may suffice to confer individual standing 

for monetary relief,14 the wholly conjectural future injury 

Appellants rely on does not, and cannot, satisfy the 

constitutional requirement that a plaintiff seeking injunctive 

relief must demonstrate a likelihood of future harm.

15

 

sympathy but it will not typically invoke the jurisdiction of a 

federal court. 

 See

Lyons, 461 U.S. at 109 (observing that the plaintiff “ha[d] a 

14 At least constitutional standing; we say nothing of 

statutory requirements that may or may not be met.

15 Appellants also suggest, albeit obliquely, that they 

might be tricked into becoming Synapse customers again 

because Synapse does not prominently identify itself when 

making its magazine offers. (See App. at 317 (“Synapse, if it

identifies itself at all in these offers, does so in the fineprint.”).) However, Appellants are under no compulsion to 

uncritically accept magazine subscription offers. Because 

Appellants are familiar with Synapse’s practices as well as 

the various names under which it operates, it is a speculative 

stretch to say they will unwittingly accept a Synapse offer in 

the future. But even if they did, they would only be harmed if 

they were again misled by Synapse’s subscription renewal 

techniques, which would require them to ignore their past 

dealings with Synapse. In short, Appellants ask us to 

presume they will be fooled again and again. While we 

cannot definitively say they won’t get fooled again, it can 

hardly be said that Appellants face a likelihood of future 

injury when they might be fooled into inadvertently accepting 

a magazine subscription with Synapse and might be fooled by 

its renewal tactics once they accept that offer.
26

claim for damages ... that appear[ed] to meet all Article III 

requirements” but that he nevertheless could not “meet[] the 

preconditions for asserting an injunctive claim in a federal 

forum”); Tucker v. Phyfer, 819 F.2d 1030, 1034-35 (11th Cir. 

1987) (noting, in rejecting class certification under Rule 

23(b)(2), that “a plaintiff who has standing to bring a 

damages claim does not automatically have standing to 

litigate a claim for injunctive relief arising out of the same set 

of operative facts” and that the plaintiff’s proposed injunctive 

relief class was inappropriate notwithstanding his “live claim 

for money damages”).

Because Appellants have not established any 

reasonable likelihood of future injury in this case, they have 

no basis for seeking injunctive relief against Synapse. See

Arguello v. Conoco, Inc., 330 F.3d 355, 361 (5th Cir. 2003) 

(customers who were subject to past discrimination by a gas 

station attendant lacked Article III standing to sue for 

prospective relief); Frankle v. Best Buy Stores, L.P., 609 F. 

Supp. 2d 841, 848 (D. Minn. 2009) (explaining that a former 

customer had no “standing to seek an injunction ... because 

she [was] no more likely than anyone else to be impacted”);

Goldstein v. Home Depot U.S.A., Inc., 609 F. Supp. 2d 1340, 

1348 (N.D. Ga. 2009) (former customer of the defendant’s 

who did not allege “that he plans in the future to purchase a 

Dryer from Defendant or that he plans in the future to have a 

Dryer installed by Defendant” lacked standing to pursue 

injunctive relief on behalf of a class of consumers who might 

be subjected to the allegedly illegal practice); Smith v. 

Chrysler Fin. Co., L.L.C., No. 00-cv-6003, 2004 WL 

3201002, at *4 (D.N.J. Dec. 30, 2004) (“The injury which 

Plaintiffs allege, that they may want to buy another Chrysler 
27

in the future and may be discriminated against by Defendant, 

is simply too speculative ... .”). 

Nor is Appellants’ position strengthened by the 

“capable of repetition yet evading review” doctrine. They 

argue that they “should not be required to allow themselves to 

be continually billed ... merely for standing purposes” since 

“the term of a subscription purveyed by Synapse is shorter 

than the course of a typical litigation.” (App. at 317.) But the 

inescapable fact is – as Appellants’ speculation about their 

future actions reflects – they cannot “make a reasonable 

showing that [they] will again be subjected to the alleged 

illegality.” Lyons, 461 U.S. at 109. That means they cannot 

successfully invoke the “capable of repetition yet evading 

review” doctrine. See Spencer v. Kemna, 523 U.S. 1, 17 

(1998) (stating the “capable of repetition yet evading review” 

doctrine applies in exceptional situations only and requires “a 

reasonable expectation that the same complaining party [will] 

be subject to the same action again” (alteration in original) 

(internal quotation marks omitted) (quoting Lewis v. Cont’l 

Bank Corp., 494 U.S. 472, 481 (1990))); Abdul-Akbar v. 

Watson, 4 F.3d 195, 207 (3d Cir. 1993) (“[C]onjecture as to 

the likelihood of repetition has no place in the application of 

this exceptional and narrow grant of judicial power.”). 

Appellants’ contention, moreover, is based on a false 

premise – namely, the alleged inequity in requiring them to 

maintain Synapse subscriptions throughout the duration of the

class action litigation “merely for standing purposes.” (App. 

at 317.) In reality, standing is determined at the outset of the 

litigation, Davis v. FEC, 554 U.S. 724, 734 (2008), and 

Appellants would have been able to represent an injunctive 

relief class if they had maintained their subscriptions until 
28

after moving for class certification,16

see Holmes v. Pension 

Plan of Bethlehem Steel Corp., 213 F.3d 124, 135 (3d Cir. 

2000) (“So long as a class representative has a live claim at 

the time he moves for class certification, neither a pending 

motion nor a certified class action need be dismissed if his 

individual claim subsequently becomes moot.”).17

 16 Moreover, it is not the case that the named plaintiffs’ 

standing to seek injunctive relief rises or falls solely with 

their status as Synapse customers. Appellants only needed to 

demonstrate that they were “likely to suffer future injury” 

from the Synapse’s conduct. Lyons, 461 U.S. at 105. The 

best way to do that, of course, would have been to show they 

were Synapse customers, but that is not necessarily the only 

way. The problem here is that Appellants provided no basis 

for their assertion of future harm.

 In 

17 Although Appellants’ Complaint implies that 

Appellants were no longer Synapse customers by December 

2009, Appellants have not pleaded specific information 

concerning when they actually terminated their subscriptions 

with Synapse. See supra note 12 and accompanying text. 

Nor have they made any effort to establish that they faced a 

likelihood of future injury by Synapse at the time when their 

various complaints were filed. Accordingly, we have treated

the justiciability question presented as one of standing, 

although we recognize that Appellants’ Article III problem 

might sound in mootness if Appellants initially had standing 

to seek injunctive relief but lost it before moving for class 

certification. See Davis, 554 U.S. at 734 (stating that “the 

standing inquiry [is] focused on whether the party invoking 

jurisdiction had the requisite stake in the outcome when the 

suit was filed”); Altman v. Bedford Cent. Sch. Dist., 245 F.3d 

49, 69 (2d Cir. 2001) (“[I]f the plaintiff loses standing ... 
29

addition, notwithstanding that they may prefer injunctive 

relief as opposed to monetary relief now that a possible 

injunction is their only route to class certification, the notion 

that Appellants might have needed to maintain their 

subscriptions to pursue their claims (as opposed to a specific 

kind of relief) is misplaced, given that no one is contesting 

their effort to pursue their individual claims for damages. See 

Lyons, 461 U.S. at 109 (“Lyons’ claim that he was illegally

strangled remains to be litigated in his suit for damages; in no 

sense does that claim ‘evade’ review.”).

 

during the pendency of the proceedings ..., the matter 

becomes moot, and the court loses jurisdiction.”). However,

because it is evident that none of the named plaintiffs were 

Synapse customers when the Complaint was filed and they 

did not seek or obtain class certification until after that, see 

supra note 12, the difference between “standing” and 

“mootness” is essentially a semantic one in this case, see

Holmes, 213 F.3d at 135 (“So long as a class representative 

has a live claim at the time he moves for class certification, 

neither a pending motion nor a certified class action need be 

dismissed if his individual claim subsequently becomes 

moot.”). Indeed, Appellants either lack standing because they 

were not Synapse customers at the time they filed the relevant 

complaint, or lost their standing for prospective relief when 

they ceased being Synapse customers before seeking class 

certification, which results in their “claims becom[ing] moot.” 

PeTA, People for the Ethical Treatment of Animals v. 

Rasmussen, 298 F.3d 1198, 1203 (10th Cir. 2002); see

Holmes, 213 F.3d at 135-36 (“If ... the putative class 

representative’s individual claim becomes moot before he 

moves for class certification, then any subsequent motion 

must be denied and the entire action dismissed.”).
30

Because Appellants lack Article III standing to seek 

injunctive relief, the District Court was obliged to deny class 

certification under Rule 23(b)(2). 

III. Conclusion

For the foregoing reasons, we will affirm the District 

Court’s order denying class certification.18

 18 Synapse argued before us that the District Court 

lacked statutory subject matter jurisdiction under § 1332(d) 

because Appellants’ averment that the value of the injunctive 

relief sought exceeded $5,000,000 is wholly speculative. In 

light of our conclusion that Appellants lack Article III 

standing to seek injunctive relief, we decline to address that 

argument. See generally Sinochem Int’l Co. v. Malaysia Int’l 

Shipping Corp., 549 U.S. 422, 436 (2007) (recognizing that 

courts may “choose among threshold grounds for denying

audience to a case on the merits” (citation and internal 

quotation marks omitted)). Nor do we address, given the 

limited nature of our review, how the District Court should 

proceed on remand. See Prado-Steiman, 221 F.3d at 1277-78 

(observing that, outside the “Rule 23(f) context, issues of 

standing are normally not available for review on 

interlocutory appeal”).