Voluntary Payment Doctrine Cases

In Hill v. Galaxy Telecom, L.P., 184 F.R.D. 82 (N.D. Miss 1999)., the court considered the voluntary payment doctrine and determined the central question to be resolved by the litigation was whether the fees charged by Galaxy for late payment were legitimate, reasonable fees for processing late payments, or whether they were arbitrary fees, serving as illegal penalties. Id. at 87. the Hill court held: In order for the voluntary payment defense to come into play, the "late fee charges" must first be determined as unenforceable. That issue is common to all proposed class members, and it is an issue of the class representative that is typical of the proposed class. If the "late fee charges" are held unenforceable, only then would it be considered whether there was compulsion, fraud, or mistake of fact . . . . Whether there was "compulsion" or "mistake of fact" are issues that may be subjective and require an individual inquiry of each class member to determine whether he or she acted under compulsion or was mistaken as to the enforceability and legality of these payments. Still, Rule 23(a)'s commonality and typicality requirements are met in this matter as to so many class issues that this court will not allow this one obscure issue that may not even arise to prohibit class certification. However, if the court finds at any time that issues of "compulsion," "mistake of fact," or any other similarly narrow issue eliminates the elements of commonality and/or typicality, the court may at that time exercise its discretionary power to decertify the class. Fed. R. Civ. P. 23(d). Id. The McWethy v. Telecommunications, Inc., 1999 OK CIV APP 91, 988 P.2d 356 (Okla. Civ. App. Div. 1, 1999) court, in applying the voluntary payment doctrine, noted that plaintiff pleaded "full knowledge of all facts" in his petition where he admitted: (1) defendants sent him monthly billing statements that specified a due date for payment of cable television services; (2) he knew a late fee would be assessed if payments were not made by the due date; (3) he paid the late charge during the course of his service contract with defendants. McWethy, 988 P.2d at 356. In Smith v. Prime Cable of Chicago, 276 Ill. App. 3d 843, 213 Ill. Dec. 304, 658 N.E.2d 1325 (1995) plaintiffs brought a class action suit seeking to recover payment for a pay-for-view program that did not run as long as advertised. Smith, 658 N.E.2d at 1328. Agreeing that plaintiffs' payments were voluntary, the appellate court upheld the trial court's dismissal of the action. Smith, 658 N.E.2d at 1334. In Smith, the plaintiffs paid the charge after viewing the concert, and thus were aware at the time of payment that they had not received the full three hour concert that was advertised. Smith, 658 N.E.2d at 1328.