Full opinion text
ORDER ON PROCEDURE FOR DETERMINATION AND ENTRY OF FINAL JUDGMENT GOLD, District Judge. I. INTRODUCTION On February 20, 2001, the jury rendered a Special Verdict in favor of the Class Dealers [D.E. # 1395]. Following the rendition of the Special Verdict, the Court held a status conference with the parties on March 1, 2001, to discuss post-verdict procedures, the entry of judgment, and the claims administration process. At the direction of the Court, the parties have filed a series of motions and memoranda addressing complex and novel matters of first impression since, as recognized by the parties, few class matters of this magnitude have proceeded to trial and verdict. On June 7, 2001, the Court held oral argument and further directed the parties to file additional memoranda on certain specific issues [D.E. # 1427], All such memo-randa have been received and reviewed. In brief, the Plaintiffs contend that, based on the jury’s verdict, they are entitled to entry of a final judgment for the total amount of the compensatory damages suffered by the class as a whole, plus prejudgment interest calculated in accordance with the laws of the 35 political jurisdictions in which the Dealers purchased motor fuel from Exxon during the class period (March 1, 1983, through August 31, 1994) (“Class Period”). According to Plaintiffs, the final judgment would reserve jurisdiction to establish and implement a claims administration procedure by which class members would claim their share of the purported common fund. Plaintiffs contend that Exxon would have no role or standing to participate in the claims administration process or to seek recovery of any unclaimed portion of the purported common fund created by the final judgment. Exxon, on the other hand, views the form the final judgment would take and its participation in the claims process quite differently. First, Exxon claims that the Plaintiffs’ proposed procedure would constitute a judicial taking of Exxon’s property in violation of basic due process rights because it would necessarily result in a final judgment for more than the actual compensatory damages due to class members who may pursue their individual breach of contract claims. According to Exxon, Plaintiffs’ proposal would accomplish this by reversing the process for entering a final judgment so that an aggregate amount of class-wide damages would be immediately entered before the total amount of actual compensatory damages claimed by individual class members on their separate breach of contract claims is determined. Exxon raises again its argument, based on recent case law, that the Court cannot enter an award of class-wide damages because it lacks subject matter jurisdiction over the claims of many class members. Second, Exxon disputes Plaintiffs’ contention that, after an aggregate damage award is entered, Exxon would not be entitled to recover any portion of the proposed award that is not claimed as actual compensatory damages by individual class members. Exxon also disagrees with the suggestion that it would not be permitted to participate in the claims administration process. According to Exxon, to require it to pay additional sums or to prevent it from recovering any sums that remain after a claims process is completed serves no compensatory purpose and, therefore, constitutes punitive relief that is expressly prohibited by the Uniform Commercial Code. For the same reason, Exxon claims it is entitled to participate' in the claims administration process to ensure that, through duplicate claims or otherwise, no class member receives more than the compensatory damages to which he or she is entitled. In addition, Exxon claims that it is entitled to assert rights of set-off against class members who file claims. Third, Exxon claims that Plaintiffs’ proposed procedure does not address the issues involved in attempting to award prejudgment interest under the laws of different states on the basis of the Special Verdict rendered in Plaintiffs’ favor. According to Exxon, there is no basis in the jury’s verdict (or the trial record) for determining the amount of damages suffered by dealers in any particular state against which to apply the state’s rate of prejudgment interest. By this Order, the Court has endeavored to decide all issues posed by the parties and also to approve the form of the judgment to be entered on the Special Verdict in accordance with Fed.R.Civ.P. 58. Although not a final judgment, the Court shall utilize the procedures in 28 U.S.C. § 1292(b) to authorize an interlocutory appeal. For this reason, the Court has ordered Exxon to file its Rule 50 and 59 motions so that, if denied, those rulings could be considered as part of the § 1292(b) review. Each substantive issue is addressed below. II. WHETHER THE PLAINTIFFS ARE ENTITLED TO AN AGGREGATE JUDGMENT IN FAVOR OF THE CLASS AS A WHOLE? 1. Plaintiffs’ Further Contentions. As stated above, Plaintiffs claim that they are entitled to entry of a final judgment for the total amount of the compensatory damages suffered by the class a whole, plus pre-judgment interest for the class as a whole calculated in accordance with the laws of the 35 political jurisdictions in which the Dealers purchased motor fuel from Exxon during the Class Period. Plaintiffs further claim that compensatory damages may be “ministerially computed” by the court by simply multiplying the jury’s annual cents per gallon damage awards times the annual gallons of motor fuel purchased by the Class Dealers as reported in the electronic database of motor fuel volumes produced by Exxon, which Plaintiffs have accepted as correct. Plaintiffs next assert that the same annual cents per gallon damage figures also provide the means to accurately calculate pre-judgment interest by state, by year, in accordance with the laws of the 35 political jurisdictions. Finally, because Exxon’s Dealer Volume Database reports Class Dealer motor fuel purchases on a store level basis, the Plaintiffs contend that the jury’s cents per gallon damage award also provides a precise means of allocating damages among individual class members in the claims administration process. 2. Analysis. In analyzing Plaintiffs’ contentions, it is first necessary to determine what the jury did, then whether, and under what authority, the Court may enter an aggregate judgment for both compensatory damages and prejudgment interest, and, finally, to consider the propriety of entering such a proposed final judgment given the facts and circumstances of the case. a. What Did the Jury Decide by its Special Verdict? In Allapattah Servs., Inc. v. Exxon Corp., 61 F.Supp.2d 1335, 1342 (S.D.Fla. 1999), this Court stated that, “the ultimate question for the jury is whether Exxon initially gave, and then ‘took back’ the [DFC] adjustment in total as of March 1, 1983 through August, 1994?” By its Special Verdict, the jury determined that Exxon was liable to the Class Dealers for the “take back,” and that it had failed to reduce the wholesale price of motor fuel for the Class Period. The jury then determined the time period by year in which the failure to reduce the wholesale price occurred and the amount, in cents per gallon, by which Exxon failed to provide the reduction [See D.E. # 1395]. As is self-evident from the Special Verdict, the jury did not award aggregate compensatory damages in favor of the Plaintiffs. To do so and derive a true aggregate award, the jury would have had to further reduce the total number of gallons of motor fuel sold during the Class Period to account for “opt outs,” as well as to make further reductions based upon Exxon’s valid affirmative defenses, including statute of limitations in Ohio. Obviously, the Plaintiffs recognize the necessity for such reductions because, in their proposed procedure, Plaintiffs request the Court to do what the jury did not do; that is, to “ministerially” undertake such an analysis and render an aggregate damage award for the class in the form of a final judgment. If the jury did not render an aggregate compensatory damage award, what did the jury do by its Special Verdict? Besides finding for Plaintiffs on issues of liability and causation, the jury, in accordance with Fed.R.Civ.P. 49(a), determined class damages in the form of a common guideline or factor [cents per gallon on a year to year basis during the Class Period]. Otherwise stated, the jury did not itself award aggregate class damages or a “fluid verdict”; rather, the jury decided the applicable factor or guideline that will apply to determine the measure of damages of each Class Dealer during the claims administration process without resort to an aggregate fund. b. Given the Jury’s Special Verdict, Under What Authority May the Court Now Ministerially Enter An Aggregate Final Judgment for Compensatory Damages and Prejudgment Interest? Plaintiffs’ briefs did not initially address this question. At oral argument, and in subsequent briefs, Plaintiffs’ counsel argued that such authority is provided by virtue of the parties’ own stipulation and by Fed.R.Civ.P. 23, 49, and 58. Exxon vigorous denies any such stipulation, or that any rule of civil procedure authorizes the Court to act as Plaintiffs’ request. i. Stipulation between the parties Plaintiff argues that, while Exxon did not stipulate to a class-wide damage calculation, it did stipulate to the facts upon which a class-wide damage calculation can be administratively accomplished by the Court post-trial. [D.E. # 1432, p. 7]. In support, Plaintiff relies on the transcript of the ' first trial [Transcript, Trial I at 3024:13-3028:16], as well as a written stipulation between the parties concerning the submission of damages to the jury on a cents-per-gallon basis using the volumes of both gasoline and diesel fuel [Exhibit “A” to D.E. # 1432]. However, the ‘stipulation’ agreement submitted by Plaintiff as Exhibit A to its Supplemental Memorandum Regarding Judicial Authority for Entry of Judgment in the Full Amount Awarded by the Jury [D.E. # 1432] is not signed by both parties and constitutes merely an offer by Exxon, which Plaintiffs apparently rejected, to stipulate to a procedure for recalculating Plaintiffs’ proposed measure of damages in the event the Court permitted them to assert claims for sales of diesel fuel, subject to a number of contingencies, such as exhaustion of appeals. The offer expressly states that it was, “not intended as, nor shall it constitute, a waiver of any objection by Exxon to plaintiffs' proposed calculation of damages, including, but not limited to, whether damages should be calculated on a cents-per-gallon basis ...” See Exhibit “A” to D.E. # 1432 at ¶ 3. The proposed stipulation also specifies that Plaintiffs’ recalculated cents-per-gallon damages number was to be used for the sole purpose of allocating damages among class members who submit appropriate claims. Id. at 12(c). In sum, the document presented by Plaintiffs is not a binding stipulation between the parties to the facts upon which a class-wide damage calculation can be administratively accomplished by the Court post-trial, and by its very terms it would not provide authority for the Court to enter an aggregate final judgment. Accordingly, I find that there was no stipulation between the parties that would provide authority for the Court to ministerially enter an aggregate final judgment for compensatory damages and prejudgment interest. ii. Federal Rules of Civil Procedure Plaintiffs argue that Rule 58 and Rule 23, read together, require the Court to enter final judgment on the Special Verdict, and that Rule 49 specifically contemplates that the Court will use the jury’s findings to enter aggregate damages in a final judgment. Exxon argues in response that the Federal Rules of Civil Procedure do not compel the Court to enter an aggregate award of damages equal to the total damages suffered by the class. The Court concurs with Exxon that the Rules do not establish an independent legal basis for this Court to ministerially aggregate compensatory damages in a final judgment when the jury made no such findings in its Special Verdict, and where the adjustments required by the Court are beyond what are “self-evident” mathematical calculations based on the jury’s Special Verdict. Beyond that, the obstacles to awarding prejudgment interest on a class basis preclude an aggregate final judgment even if one could be rendered within the Court’s discretion for compensatory damages. Rule 58 and Rule 23 state that the Court shall promptly approve the form of the judgment after entry of the Special Verdict and that, in a 23(b)(3) class action, the judgment shall describe those to whom notice was provided and have not requested exclusion, and whom the court finds to be members of the class. Nothing in either Rule contemplates or accounts for adjustments being made to a final damage award, as is required in this case. These adjustments include determining the following: (a) the damages attributable to sales to dealers who elected to “opt-out” of the class; (b) the damages attributable to sales to dealers whose claims are barred by the applicable statutes of limitations; and (c) the damages attributable to sales covered by releases. Furthermore, Rule 49(a) also fails to set forth the authority for Plaintiffs’ requested relief. While the Court concurs with the Plaintiffs that, in certain limited circumstances, a ministerial aggregating process may be performed by the court, this case is distinguishable from the cases that have utilized such an approach. For example, in John R. Lewis Inc. v. Newman, 446 F.2d 800 (5th Cir.1971), the jury returned a special verdict pursuant to Rule 49 and found that the defendant was liable for the value of certain stocks sold to the plaintiff, and that each share of stock had a fair market value of $10.47%. The trial judge then rendered judgment by multiplying this figure by 10,000, or the number of shares sold to each of the two plaintiffs. Unlike this case, the number of plaintiffs in John R. Lewis was limited to two, the measure of damages of each share of stock was the same, and the total number of stocks was expressly found by the jury. The case at bar requires calculation of damages for a class of potentially over ten-thousand plaintiffs, the exact number of which is subject to several as yet to be completed adjustments. Plaintiffs also rely on McBrayer v. Teckla, Inc., 496 F.2d 122 (5th Cir.1974). In McBrayer, the jury found in a special verdict that the plaintiff, a single individual, would have sold 46,000 units of his product if not for the defendant’s wrongful conduct, and the trial judge entered judgment in the amount of $46,000 by multiplying the number of units by the value of the product ($l/unit). The appellate court reversed, finding that the jury lacked a valid basis for concluding that 46,000 units would have been sold during the contract term. McBrayer, 496 F.2d at 127-28. The appellate court did not specifically address the propriety of the district court’s act of multiplying the number of units found by the jury by the price per unit. As such, McBrayer is of little, if any, precedential value. Furthermore, McBrayer clearly did not involve the application of the number of adjustments of the magnitude required in this case in order to reach a final damage judgment. In sum, there is nothing in the Federal Rules of Civil Procedure that requires the Court to enter a final judgment containing an aggregate damage award at this stage of the proceedings. Even if such authority is implied in limited, self-evident circumstances, its application, as a matter of discretion, is inappropriate here. Unlike the simplified example provided by Plaintiffs of a case in which the jury special verdict says, “We find that the parties had a contract for the sale of 100 widgets. We find that the defendant failed to deliver the widgets. We find that the widgets were worth $4 each,” and the Court then performs the ministerial function of multiplying the two amounts and entering a final judgment for the plaintiff of $400 [see D.E. # 1432, p. 11-12], the Special Verdict in this case does not lend itself to such treatment. There was never any discussion, agreement, or consideration by the parties or the Court that such a procedure would be followed, because it was always known that there would be significant unclaimed amounts. No discussion occurred at any time to create a cy pres fund. The Special Verdict form was limited to finding a common damage factor to measure individual compensatory damages, and, given the lack of any agreement to the contrary and the unique nature of the class and the required adjustments to the total damage amount, it would be inappropriate for the Court to go beyond the Special Verdict form to enter an aggregate compensatory and prejudgment interest award to the class. c. Does the Case Law Provide Authority for the Court to Ministerially Calculate Aggregate Damages and Enter Final Judgment Therefor? Plaintiffs argue, in their “Reply to Exxon’s Memorandum Regarding Plaintiffs’ Motion for Entry of Order on Procedure for Determination and Entry of Final Judgment” [D.E. # 1424], that, “Consistent with the provisions of the Rule [Fed. R.Civ.P. 23(c)(3) ], the federal trial and appellate courts have regularly entered or approved of lump sum judgments for the aggregate amount of compensatory damages suffered by all class members in common fund, contract-based class actions brought under Rule 23(b)(3).” In support, Plaintiffs cite to Boeing Co. v. Van Gemert, 444 U.S. 472, 475-77, 100 S.Ct. 745, 748, 62 L.Ed.2d 676 (1980); Nelson v. Greater Gadsden Hous. Auth., 802 F.2d 405, 408-09 (11th Cir.1986); Fogie v. THORN Am., Inc., 190 F.3d 889, 904-05 (8th Cir.1999); and Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1305 (9th Cir.1990). During oral argument, however, Plaintiffs conceded that none of these cases directly hold that a district court may ministerially calculate aggregate damages in the absence of a jury verdict to that effect. Upon independent review, the Court reaches this conclusion as well. In Boeing, for instance, the Supreme Court did not expressly decide the propriety of an aggregate judgment in a class action context, because the issue was never raised on appeal. Rather, the precise question presented in the class action case was whether a proportionate share of the fees awarded to lawyers who represented the successful class may be assessed against the unclaimed portion of the fund created by judgment. Boeing, 444 U.S. at 473, 100 S.Ct. at 747. There, the district judge entered a judgment which awarded a determinate fund for the benefit of every member of the class whom the plaintiffs represented. Boeing did not appeal the judgment awarding the class a sum certain. Id. at 479, 100 S.Ct. at 750. Although Boeing argued before the Supreme Court that the judgment fund conferred no benefit on class members who failed to claim against it, the Supreme Court determined that, “[n]othing in the [district] court’s order made Boeing’s liability contingent upon the presentation of individual claims.” Id. at 481 n. 5, 100 S.Ct. at 750 n. 5. The Court further stated that, “[s]ince there was no appeal from the judgment that quantified Boeing’s liability, Boeing presently has no interest in any part of the fund.” Id. at 481, 100 S.Ct. at 751. Consequently, the Supreme Court assumed the propriety of the district judge’s final judgment since it never was appealed. Moreover, there is no indication in Boeing that the district judge reached an aggregate class damage by following a procedure comparable to that proposed by Plaintiffs in this case. In Nelson v. Greater Gadsden Hous. Auth., 802 F.2d 405 (11th Cir.1986), tenants in a public housing complex brought suit for injunctive relief and monetary damages in a class action involving utility allowances to tenants in a public housing complex. The district court found that the defendant, Greater Gadsden, breached a contractual duty to comply with applicable HUD regulations. Evidently, the district court determined the amount of compensatory damages on summary judgment. In that regard, the Eleventh Circuit stated: “The district court’s calculations were based on data agreed to by all parties, abut which there was no genuine issue of fact.” Nelson, 802 F.2d at 409. Under the district judge’s order, any compensatory damages which were not claimed within a specified period of time were to be used by Greater Gadsden to increase the energy efficiency of the apartment units or to improve the defendant-supplied appliances within the units. Id. at 409. The Eleventh Circuit did not reject the district court’s approach as an improper “fluid recovery,” partially because the plaintiffs had proven individual damages based on individual usages. Accordingly, nothing in Nelson supports a ministerial calculation of aggregate damages where the judge is not the trier of fact. d. Is this a “Common Fund” Case Upon Which a Aggregate Final Judgment Can Be Entered? The answer is “no.” The issue of “common fund” never arose in this case until after the jury’s Special Verdict. By sua sponte order [D.E. # 1422], the Court requested the parties to address the “common fund” issue at oral argument for purpose of further analyzing subject matter jurisdiction. There, Plaintiffs addressed “common fund” in a different context as well. Plaintiffs contended that the Court may enter an aggregate final judgment because the jury established a “common fund” by its Special Verdict. Exxon denies that this is a common fund case. The Court concurs with Exxon that the jury’s Special Verdict did not establish a common fund, but only a “common damage factor” to measure individual compensatory damages. Although Exxon does not concede this, the jury also found a good faith duty “common to all class members” to reduce the wholesale price of motor fuel by an amount that, on average, offset the 3% credit card recovery fee during the Class Period. The essential facts of the case were set forth in Allapattah Servs., Inc. v. Exxon Corp., 61 F.Supp.2d 1308 (S.D.Fla.1999) (denying Exxon’s renewed motion for summary judgment). For the most part, Plaintiffs established the same facts at trial. Plaintiffs established that every Sales Agreement in effect or entered into by Exxon and the Class Dealers during the Class Period contained an open price term, imposing a concurrent express duty to carry out the provisions of each Sales Agreement in good faith; that is, because of the nature of Exxon’s obligation, each class member’s individual sales agreement gave rise to a “collective” contractual duty to the “dealer class as a whole” to reduce wholesale prices to offset the 3% fee imposed by Exxon to offset the cost of credit. The jury determined that Exxon breached its obligation to its Class Dealers [D.E. # 1395, p. 5]. While Plaintiffs convincingly argue that they have sought to enforce a right that is common to the class, and that such right is an indicia of a “common fund,” what is missing to create a “common fund” is the res itself, such as a piece of land, an insurance policy, a lien, or an item of collateral, which the plaintiffs might claim as common owners or in which they might share a common undivided interest arising under a single title or right. See Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1263 (11th Cir.2000) (“Plaintiffs in paradigm ‘common fund’ cases assert claims to a piece of land, a trust fund, an estate, an insurance policy, a lien, or an item of collateral, which they claim as common owners or in which they share a common interest arising under a single title or right.”) (quoting Gilman v. BHC Secs. Inc., 104 F.3d 1418, 1424 (2d Cir.1997)). Here, there is no such res. Instead, the Class Dealers are asserting rights arising from their individual Sales Agreements, and, because they were successful, they will recover the amount of excessive motor fuel charges each paid under his or her own sales agreement. The fact that this recovery may be obtained based on a common damage factor and shared duty does not convert separate and distinct claims for damages into a fund in which the class members have a common and undivided interest. See Morrison, 228 F.3d at 1264 (“The members of the Policyholder Class are asserting rights arising from their individual insurance policies, and if successful, they will recover the amount of excessive premiums each paid under his own policy. The fact that this recovery may be obtained under an equitable theory of unjust enrichment does not convert separate and distinct claims for damages into a fund in which the class members have a common and undivided interest.”). In sum, Plaintiffs may not equate a class member’s interest in the total damage award sought by the class with the “joint and undivided” interest in a single claim or “res,” as required by Morrison, and thereby justify the entry of an aggregate judgment. As the Second Circuit stated in Gilman, 104 F.3d 1418, 1424 (2d Cir.1997) (cited at length in Morrison), “Gilman and his putative class have no joint interest other than a shared appetite for a money judgment payable by a single defendant— which is not the type of ‘common and undivided interest’ that warrants an exception to the rule against aggregating claims.” See also Gilman, 104 F.3d at 1426 (“Such a ‘fund’ [damages from disgorgement of payments improperly retained] is created to facilitate the litigation process in virtually every class action and has nothing necessarily to do with whether the plaintiffs shared a pre-existing (pre-litigation) interest in the subject of the litigation ... what controls is the nature of the right asserted, not whether vindication of the right will lead to a single pool of money that will be allocated among the plaintiffs.”). e. Can the Court Enter a “Final Judgment” Based on the Jury’s Special Verdict in this Case? The answer is “no.” Pursuant to Fed. R.Civ.P. 49, the court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. Subsequent to the jury’s rendering of a special verdict, the court, pursuant to Fed.R.Civ.P. 58, is to approve the form of judgment, and the Clerk of Court is to enter it. Under these rules, a court may only enter a judgment consistent with the jury’s verdict. When multiple parties are involved, “any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Fed.R.Civ.P. 54(b). Where, as here, the verdict does not determine an aggregate compensatory award to the class as a whole, it is not “final” as contemplated in Fed.R.Civ.P. 54, 58, or 23, although, under Rule 58 and 23(c)(3), a judgment entered is conclusive as to the factual matters decided. No final judgment can be entered until after individual class members have made claims and both the validity and the amount of the claims have been determined; that is, to be “final,” the judgment must adjudicate all aspects of the claim, including compensatory damages and prejudgment interest for each class member. See generally Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742, 96 S.Ct. 1202, 1205-06, 47 L.Ed.2d 435 (1976) (no final, appealable judgment where “respondents, although having received a favorable ruling on the issue of petitioner’s liability to them, received none of the relief which they expressly prayed for .... [Tjhey requested damages, but were not awarded any ....”); In re Atlas, 210 F.3d 1305, 1308 (11th Cir.2000) (noting that “where assessment of damages or awarding of other relief remains to be resolved [judgments] have never been considered to be ‘final’ within the meaning of 28 U.S.C. § 1291”) (quoting In re Morrell, 880 F.2d 855, 856 (5th Cir.1989)). f. What is The Propriety of Entering A Total Damage Aggregate Award In This Case? The aggregate judgment issue did not arise during deliberation on jury instructions in either the first or second trial. If it had arisen, it would have been the subject of significant briefing and debate, since this is not a case where there is a statutory authorization for an aggregate award. Compare Six (6) Mexican Workers v. Anzona Citrus Growers, 904 F.2d 1301, 1306 (9th Cir.1990) (permitting aggregate proof of damages where the plaintiff class sought statutory not actual damages under the FLORA and, as such, was not obligated to prove actual injury for each class member). Properly so, the jury in this case determined by their Special Verdict only a class wide measure of damages which then can be assessed mechanically to determine individualized claims. Beside the issues of legality of entering an aggregate award of compensatory damages when the jury has not done so, the Court must further consider the “propriety” of an aggregate compensatory and prejudgment interest award under the circumstances of the case, including the potential sizeable cy pres fund due to the prospect of substantial unclaimed funds. Plaintiffs’ proposal envisions a significant unclaimed fund which, under any and all circumstances, it argues should not be returned to Exxon. As Plaintiffs’ state: “Reverter is not an option in this case because Exxon does not have a legitimate claim to the money. If all rightful owners do not appear to claim their share, the money should not go back to Exxon, which wrongfully separated the true owners from their money in the first place.” Plaintiffs’ Reply to Exxon’s Memorandum Regarding Plaintiffs’ Motion for Entry of Order on Procedure for Determination and Entry of Final Judgment [D.E. # 1424], at p. 22. Where the goals of the underlying statute(s) upon which the class claims are based are strictly compensatory, at least one circuit has recognized that a class action resulting in substantial unclaimed funds will not further that goal. See Six (6) Mexican Workers, 904 F.2d at 1306 (“Where the goals of the underlying statute are strictly compensatory, a class action resulting in substantial unclaimed funds will not further that goal.”). Nor is such a fund appropriate to relieve the plaintiff class of the burden of proving individual damages. See Nelson, 802 F.2d at 409. But, where the statutory objec-fives include enforcement, deterrence or disgorgement, the class action may be the “superior” and only viable means to achieve these purposes, despite the prospect of unclaimed funds. See Six (6) Mexican Workers, 904 F.2d at 1306. Otherwise stated, the cy pres distribution of unclaimed funds is disfavored where it subjects defendants to greater liability or alters their substantive rights, unless there is a statutory purpose of deterrence or disgorgement. See, e.g., In re Hotel Tel. Charges, 500 F.2d 86, 90 (9th Cir.1974) (rejecting an attempt to use fluid recovery or cy pres distribution to avoid the difficulty of proving each class members’ specific injury because to do so would alter the defendants’ substantive rights). The Court concurs with Exxon that Plaintiffs’ damages for breach of contract claims are limited, under the Uniform Commercial Code, to only compensatory damages, not consequential, special or punitive relief. By prior order, the Court denied Plaintiffs’ claim for punitive damages. See Allapattah Servs., Inc. v. Exxon Corp., 61 F.Supp.2d 1326 (S.D.Fla.1999). U.C.C. § 1-106(1) specifically provides that remedies for breach of contract are designed so that, “the aggrieved party [the individual dealer] may be put in as good a position as if the other party [Exxon] had performed.” This provision also states unequivocally that, “neither consequential or special nor penal damages may be had except as specifically provided in this Act or by other rule of law.” Id. As the U.C.C.’s Official Commentary notes, this provision was intended “to make it clear that compensatory damages are limited to compensation,” and that “[t]hey do not include consequential or special damages, or penal damages.” U.C.C. § 1-106, Official Comment 1. Thus, under U.C.C. principles, once all class members who assert valid claims are made whole, the compensatory purpose of any damage award has been completely satisfied. To the extent that any aggregate award exceeds the total amount of such damages, it no longer serves the compensatory purpose of damages relief under U.C.C. § 1-106 and becomes punitive in nature. Such an award would thereby violate Exxon’s substantive rights under the Uniform Commercial Code and would be contrary to the Rules Enabling Act, which specifically provides that procedures under the Federal Rules of Civil Procedure, including Rule 23(b)(3), “shall not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). See In Re: Hotel Tel. Charges, 500 F.2d 86, 90 (9th Cir.1974) (“We agree with the decision reached in Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2d Cir.1973), that allowing gross damages by treating unsubstantiated claims of class members collectively significantly alters substantive rights .... Such enlargement or modification of substantive statutory rights by procedural devices is clearly prohibited by the Enabling Act that authorizes the Supreme Court to promulgate the Federal Rules of Civil Procedure.”). See also Abrams v. Interco Inc., 719 F.2d 23, 31 (2nd Cir.1983) (reaffirming the Second Circuit’s rejection of “fluid” class recovery in antitrust class actions). But see Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1306 (9th Cir.1990) (affirming award of “in gross” judgment in class action under Farm Labor Contractor Registration Act, distinguishing Eisen and In re Hotel on the basis that statutory, per-violation damages under Act — unlike antitrust or security damages — did not require individual proof of actual damages). In addition to the problem of whether an in-gross award bypasses the need for individual proof of damage, there are serious questions as to whether an aggregate award of damages will significantly overstate the entitlement of the Class Dealers to those damages. The likelihood of potentially significant “unclaimed damages” from an aggregate or lump award, and the consequent punitive effect, is compounded in this case because of the very real possibility that the Court may lack subject matter jurisdiction over the claims of a number of putative class members. Here, each Dealer’s breach of contract claim is based on diversity jurisdiction under 28 U.S.C. § 1332. Although the Court has previously ruled that it has supplemental jurisdiction under 28 U.S.C. § 1332, see July 1, 1999 “Order on Plaintiffs’ Motion for Partial Summary Judgment Regarding Subject Matter Jurisdiction” [D.E. # 1122], the resolution of this issue in the Eleventh Circuit remains far from clear. In the event subject matter jurisdiction is lacking, the Court cannot include in an aggregate damage award those claims of class members over which it has no jurisdiction. To do so would expose Exxon to potential double liability in the event it is successfully sued in state court by a class member who is dismissed for lack of subject matter jurisdiction. Moreover, in the event of remand, untangling those class members who are included in a gross award, but who do not meet threshold jurisdictional amounts, will necessitate a second inquiry into the value of each dealer’s claim if Plaintiffs’ proposal is followed. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938) (“The intent of Congress drastically to restrict federal jurisdiction in controversies between citizens of different states has always been rigorously enforced by the courts.... [I]f, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed.”). Under Exxon’s proposal, both inquires can be conducted simultaneously during the claims process. Most recently, the Court of Appeals for the Eighth Circuit has ruled that 28 U.S.C. § 1367 does not overrule the Supreme Court’s holding in Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), and that every member of a class asserting state law claims must satisfy the minimum jurisdictional amount of the diversity statute. See Trimble v. Asarco, Inc., 232 F.3d 946, 961 (8th Cir.2000). As a result of this decision, the Eighth Circuit now joins the Court of Appeals for both the Third and Tenth Circuits to form a majority of federal courts that have held that Zahn continues to govern subject matter jurisdiction of federal district courts in class action claims. See Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214 (3rd Cir.1999) and Leonhardt v. Western Sugar Co., 160 F.3d 631 (10th Cir.1998). While the Eleventh Circuit has recognized this split of authority, and the equal division of eight members of the United States Supreme Court on the issue, see Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1262 n. 5 (11th Cir.2000), it has not yet had occasion to announce its position on the issue. In formulating a post-judgment procedure, this Court cannot discount the possibility that the Eleventh Circuit may align itself with the majority of the other Circuits by concluding that the 1990 amendments to 28 U.S.C. § 1367(a) did not overrule Zahn and extend supplemental jurisdiction to the claims of an entire class once the claim of at least one class member satisfies the requisite amount in controversy. Under such circumstances, Exxon’s argument that a lump sum award is inherently punitive, rather than compensatory, is enhanced, particularly when considered in light of Plaintiffs’ further request to preclude Exxon from recovering any unclaimed funds remaining after the payment of all valid claims. To summarize, the Court denies Plaintiffs’ request that a final judgment be entered for the aggregate sum of the total damages, as adjusted. Rather, the Court shall direct the Clerk of Court to enter judgment in the manner set forth in Attachment A to this Order. In addition, the Court, by this Order, shall rule on all remaining outstanding issues affecting the claims administration process and request the Eleventh Circuit to review these matters before such an administration process is implemented. III. ISSUES AFFECTING THE CLAIMS ADMINISTRATION PROCESS The Court must establish and conduct a claims process whereby the named plaintiffs and putative class members can present then.* claims. Within that process there are certain discrete issues which will affect the extent of the claims that certain individual class members can make or recover and the manner by which such claims are calculated. These include: 1. Calculation of Individual Class Member Compensatory Damages, The calculation of an award of compensatory damages to individual Class Dealers is straight-forward. Compensatory damages to each dealer are mathematically derived from multiplying the cents per gallon damage award determined by the jury in the Special Verdict times the total number of gallons of motor fuel purchased by that dealer over the period of March 1, 1983, until August 29, 1994, as established by Exxon’s Dealer Volume Database on a store level basis, less reductions, if any, required based on statute of limitations in Ohio, and Category-four releases in Delaware. Thus, the award of compensatory damages to an individual class member will involve: (i) identifying the station or stations at which the class member was a dealer; (ii) determining the time period during which the class member was a dealer at that station, and (iii) multiplying the gallons of motor fuel sold to that station during that period by the measure of damages applicable during that time period. 2. Inclusion or Exclusion of Diesel Fuel Purchases In the Calculation of Compensatory Damages. The Court had previously reserved to consider Exxon’s motion to exclude diesel fuel purchases from the computation of total motor fuel volumes. The issue that requires resolution is whether gallons of diesel fuel Exxon sold to the Dealers during Discount for Cash, as opposed to gallons of gasoline, are properly included within the class claims. The Court now concludes that diesel fuel purchases are to be included in the calculation of class members’ compensatory damages. Exxon contends that Plaintiffs should not be permitted to amend their claims to include diesel fuel because it was not adequately pled in the Plaintiffs’ amended complaint. Under Fed.R.Civ.P. 15(b), a court may allow the pleadings to be amended when the presentation of the merits of the action will be subserved and where the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party’s defense upon the merits. See Menendez v. Perishable Distribs., Inc., 763 F.2d 1374, 1379 n. 3 (11th Cir.1985); Harris v. Garner, 216 F.3d 970, 996 (11th Cir.2000) (“[U]nder Rule 15(b), courts should allow amendments to conform the pleadings to the evidence both during trial, and even after judgment, as long as the opposing party cannot prove that he is thereby prejudiced.”). Both elements are met in this case. The record unequivocally establishes that Plaintiffs’ claims have consistently encompassed Exxon’s pricing of both gasoline and diesel fuel. Exxon’s Discount For Cash program applied to both gasoline and diesel fuel (collectively referred to by Exxon as “motor fuel”). At the close of the Plaintiffs’ case during the first trial, the parties stipulated that the Plaintiffs were not required to offer separate proof of the manner in which Exxon priced diesel fuel, that a finding by the jury that Exxon breached a duty in pricing gasoline would constitute a finding of breach with respect to the pricing of diesel fuel, and that for purpose of computing and allocating damages on a cents per gallon basis, the combined volumes of gasoline and diesel would be used [Trial I Transcript, 8/20/00, pp. 3024-28]. At the second trial, all prior stipulations remained in effect [D .E. # 1264], As a result, during the second trial, the Court admitted into evidence, without objection, Plaintiffs’ Exhibit Number “1,” which is a summary schedule of the Class Dealers’ damages, computed on a cents per gallon basis using volumes of both gasoline and diesel fuel. The jury’s award of cents per gallon in the Special Verdict followed directly from the calculations reflected in this exhibit. Exxon has suffered no prejudice. It was well able to defend on the Plaintiffs’ claim. Moreover, the merits of the cause would be subserved by not permitting the pleadings to be amended to conform to the evidence. Accordingly, Exxon’s objection to the inclusion of diesel fuel is denied. 3. Application of Statutes of Limitation in Ohio and Florida. The Court previously has found that Ohio and Florida do not recognize the fraudulent concealment doctrine as a legal avoidance to a statute of limitations defense. See Allapattah Servs., Inc. v. Exxon Corp., 188 F.R.D. 667, 672 (S.D.Fla.1999). In its initial briefs, Plaintiffs rear-gued these matters based the application of a fifteen year statute of limitations in Ohio [Ohio Rev.Code Ann. § 2305.06], and a recent Florida Supreme Court decision which Plaintiffs claim has clarified the application of the fraudulent concealment doctrine with respect to that state’s statute of limitations and requires a different result than originally determined by the Court. See Allapattah Servs., 188 F.R.D. at 675 n. 16 (concluding under Florida law that a fraudulent concealment claim cannot “toll” the statute of limitations). a. Ohio. Since the filing of their initial briefs, Plaintiffs have conceded that the Ohio statute of limitations is applicable. Accordingly, gallons purchased by dealers residing in Ohio prior to May 1987 shall be excluded from the damage computation. b. Florida. Florida has a five year statute of limitations for breach of contract claims that does not recognize “tolling” for fraudulent concealment. See Fla. Stat. § 95.11(2)(b). Plaintiffs claim that a recent Florida Supreme Court decision, Hearndon v. Graham, 767 So.2d 1179 (Fla.2000), has changed Florida law since the Court’s prior opinion, and that its cause of action did not “accrue” until November of 1990 under the “delayed discovery doctrine.” In Hearndon, the Florida Supreme Court addressed the following certified question: “Where a plaintiff in a tort action based upon child abuse alleges that she suffered from traumatic amnesia caused by the abuse, does Fulton County Admin, v. Sullivan, 22 Fla. L. Weekly S578 (Fla.1997), preclude judicial recognition of an exception to or a tolling of the statute of limitations based upon the doctrine of delayed discovery recognized in Chapter 92-102, Laws of Florida?” In response, the Florida Supreme Court held that the delayed discovery doctrine applies to the “accrual” of the instant cause of action. Hearndon, 767 So.2d at 1180. The Court receded from past decisions that applied the delayed discovery doctrine to toll the running of a statute of limitations. Id. at 1184. It held that the.Florida Statutes do not impede the delay of the accrual of the cause of action. Id. The Court also described the delayed discovery doctrine in this manner: The “delayed discovery” doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action. See Hillsborough Community Mental Health Ctr. v. Harr, 618 So.2d 187, 189 (Fla.1993); 35 Fla. Jur.2d Limitations and Laches § 60 (1996). The United States Supreme Court applied the “blameless ignorance” doctrine in Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), thereby delaying the accrual of a cause of action until the plaintiff reasonably discovered the right of action, reasoning that “the traditional purposes of statutes of limitations ... require the assertion of claims within a specified period of time after notice of the invasion of legal rights.” Id. This Court adopted the doctrine into Florida law as the “delayed discovery” doctrine. City of Miami v. Brooks, 70 So.2d 306, 309 (Fla.1954). See Kush v. Lloyd, 616 So.2d 415, 418 (Fla.1992); Creviston v. General Motors Corp., 225 So.2d 331, 334 (Fla.1969) (explaining that the “accrual of the [underlying cause of action] must coincide with the aggrieved party’s discovery or duty to discover the act constituting an invasion of his legal rights”). Thus, application of the delayed discovery doctrine to the accrual of a cause of action and, therefore, to the running of a statute of limitation is not new to Florida law. Id. at 1183. Plaintiffs claim that, under Florida’s “delayed discovery doctrine,” their cause of action did not accrue, and the statute of limitations did not begin to run, until the Plaintiffs knew, or reasonably should have known, of the act giving rise to the cause of action. See id. at 1184. Thus, in proving the elements of fraudulent concealment as found by the jury in the Special Verdict form, Plaintiffs claim that they also have established the identical elements which under Florida law would result in the non-accrual of their claim. In response, Exxon argues that Heamdon is limited to the particular tort claim involved and is inapplicable to accrual of breach of contract claims. Plaintiffs arguments are persuasive that Florida law has changed since this Court’s prior order addressing the issue. As a federal court sitting in diversity, I must apply the substantive law of the forum state. Insurance Co. of N. Am. v. Lexow, 937 F.2d 569, 571 (11th Cir.1991). While Exxon claims that Heamdon is narrowly limited, that position has been rejected by the Florida Fourth District Court of Appeals in Monahan v. Davis, 781 So.2d 486, 437 (Fla. 4th DCA 2001) (“Appellees argue that the delayed discovery doctrine does not apply to the causes of action here at issue ... This narrow view of the delayed discovery doctrine is at odds with ... Heamdon .... ”). The appellate court stated that “[T]he supreme court’s discussion of the delayed discovery doctrine demonstrates that it is rooted in the common law, not created by statute.” Id. at 438. It further stated: “Heamdon held that the delayed discovery doctrine, when properly applied, operates to delay the accural of a cause of action.” Id. While Monahan admittedly did not apply to a contract claim based on common law, its analysis lends support to the argument that the Florida Supreme Court would reach the same conclusion even if contract claims were involved. See Insurance Co. of N. America, 937 F.2d at 571 (in applying state law, district court is to adhere to the decisions of the state’s intermediate appellate courts absent some persuasive indiction that the state’s highest court would decide the issue otherwise). Otherwise stated, Florida’s “delayed discovery doctrine” would apply here in that, based on the jury’s Special Verdict, the Plaintiffs did not know, nor reasonable should have known, of the breach of contract claim giving rise to the cause of action until November of 1990. [See D.E. # 1395, p. 15 (finding that the Dealers did not learn, or had sufficient facts to raise a suspicion and a duty to investigate that they had a claim against Exxon, until November 1990) ]. 4. Entitlement to Prejudgment Interest. The Court and the parties have recognized the complexity of the prejudgment interest problem in this case. Prior to trial, the Court addressed the matter of prejudgment interest to the extent practicable in Allapattah Servs., Inc. v. Exxon Corp., 188 F.R.D. 667 (S.D.Fla.1999). There, the Court surveyed the law on prejudgment interest in the political jurisdictions in which Exxon dealers conducted business during the Class Period, and concluded: (1) the Plaintiffs’ claims are liquidated ; (2) prejudgment interest is awarded as a matter of right in 29 of the 36 jurisdictions [Alabama, Arizona, Califor-nía, Colorado, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Washington, West Virginia, and Wyoming]; (3) in all but three of the above stated jurisdictions [Arizona, Maine, and New Hampshire], interest accrues from the date of the breach, and in the remaining three jurisdictions, it runs from the date of filing the complaint [i.e., May 13, 1991]; (4) in seven jurisdictions [Connecticut, Indiana, Mississippi, New Jersey, New Mexico, Tennessee, and Virginia], interest is discretionary, requiring the presentation of evidence in support of entitlement; (5) in those jurisdictions, the court decides whether the Plaintiffs’ are entitled to prejudgment interest [in one jurisdiction, Virginia, the issue is for the jury, but Exxon has waived a jury determination on this issue. See Trial I Transcript, 8/18/99, at pp. 2615/24-2616/1]; (6) in some of these remaining states the time of accrual of the right to prejudgment interest is specified by statute, and in others it is for the court’s determination; and (7) the parties would be required to provide further details as to the applicable pre-judgment interest rates of the various states during the years at issue. In its post-verdict submissions, Exxon has raised further challenges. Exxon contends that the Plaintiffs are not entitled to prejudgment interest as a matter of i*ight in any state because: (1) there is no basis to determine the amount of “damages” subject to each state’s prejudgment interest; and (2) the Plaintiffs’ damages are not liquidated. Where the Court has discretionary jurisdiction, Exxon further argues that the periods for any consideration of prejudgment interest should be limited, and, in any event, that the law of the seven discretionary states would not permit a discretionary award. Each issue is addressed separately below. a. Exxon’s claim that prejudgment interest should not be awarded because there is no basis to determine the amount of damages subject to each state’s prejudgment interest rate. Exxon contends that there is no evidence in the trial record (much less a jury finding) that dealers in any particular state were in fact overcharged (or if so, the amount of the overcharge). The Court disagrees. The record contains competent, substantial evidence upon which the jury’s determination of a damage factor was based, and upon which the jury could reasonably rely. When monetary relief is sought, and when data from each class member is required to assess individual recovery entitlement, it is appropriate for the class representatives to develop and prove common guidelines or formulae that will apply to determine the measure of recovery for each individual proof of claim. Newberg On Class Actions, § 10.01 (8d ed.1992). As noted in Newberg: Formulae for individual measurement of damages are most frequently found in securities fraud actions and in antitrust actions for price-fixing violations. Similar guidelines for individual measure of monetary relief are found in employment discrimination and other civil rights class actions. There are occasions when it is feasible and reasonable to prove aggregate monetary relief for the class from an examination of the defendant’s records, or by use of a common formula or measurement of damages multiplied by the number of transactions, units, or class members involved, or by reasonable approximation with proper adherence to recognized evidentiary standards. Id. The case law supports the calculation of compensatory damages [to which prejudgment interest will apply] through a common mathematical factor in a class context. See Windham v. American Brands, Inc., 565 F.2d 59, 68 (4th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978) (if damages are capable of formula calculations, no manageability problem exists even though individual claims may exist); Brown v. Pro Football, Inc., 146 F.R.D. 1, 5 (D.D.C.1992) (finding no manageability problem because the calculation of individual damages may be made by simple common formula); Walsh v. Pittsburgh Press Co., 160 F.R.D. 527, 531 (W.D.Pa.1994) (determination of amount of recovery for each employee class member will be based on a manageable mathematical formula); Hilao v. Estate of Marcos, 103 F.3d 767, 782-86 (9th Cir.1996) (calculation of damages through random statistical sampling techniques affirmed, although court noted: “While the district court’s methodology in determining valid claims is unorthodox, it can be justified by the extraordinarily unusual nature of this case.”). Here, Plaintiffs’ proof of aggregate monetary damages [based on a finding of cents per gallon] was feasible and appropriate under the unique and highly unusual circumstances of this case. The proof was sufficiently reliable to permit a just determination of Exxon’s liability within recognized standards of admissible and probative evidence in response to what Exxon, itself, represented to the Class Dealers. To paraphrase the United States Supreme Court in Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250-51, 75 L.Ed. 544 (1931) ( an antitrust treble-damage action), where the breach itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, “it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damage may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damage as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise.” (emphasis added). Based on their proof of the aggregate damage factor, as determined by the jury, there is ample basis for the Court to exercise its discretion to award prejudgment interest to individual Class Dealers who file verifiable claims arising in the discretionary states involved. The Court hereby so finds. Exxon had a good faith obligation to its dealers during the Class Period to reduce the wholesale price of motor fuel by an amount that, on average, offset the 3% credit card recovery fee during the Class Period [See D.E. # 1395, Special Verdict, p. 3]. Exxon’s good faith obligation, by its very terms, was made to each dealer, and the class as a whole, regardless of whether that dealer utilized the discount for cash program. The jury found that Exxon failed to live up to this obligation. Id. at p. 5. The proof at trial was that, in March of 1983, in accordance with its secret business plan, Exxon took back in its entirety the offset it had initially provided, and never provided the offset again. Thus, after March of 1983, no dealer in any market at any time received any Discount For Cash offset whatsoever. This leaves the calculation of damages certain in amount, time and location. It is now equitable to compensate the class dealers for lost earnings on a sum of money to which they were entitled. See Allapattah Servs., Inc. v. Exxon Corp., 188 F.R.D. 667, 687 (S.D.Fla.1999) (recognizing that “the equitable purpose of prejudgment interest is to compensate a party for lost earnings on a sum of money to which it was entitled, but which has been retained by another”) (citation omitted). The damage against which to apply each state’s prejudgment interest rate is to be determined by multiplying the amount of the annual cents per gallon factor, as determined by the jury, by the volume of Exxon’s sales to individual dealers in that state who submit verified claims, less any reductions required by virtue of statute of limitations in Ohio and Category-4 Releases in Delaware. b. Exxon’s claim that the Court should not award prejudgment interest because Plaintiffs’ damage claims are not liquidated. Exxon contends that there is no evidence in the trial record to conclude that Plaintiffs’ damages are liquidated on an individual or class basis. The Court disagrees. Plaintiffs’ damage claim is in fact subject to mathematical computation without reliance on opinion or discretion. It is the total amount of damages suffered by the class as a whole; that is, the total dollars Exxon collected through the 3% fee. Exxon alone controlled the documents which made the calculation ascertainable with mathematical certainty and from which Exxon itself could have made a proper tender with reasonable certainty. The jury verdict establishing a “cents per gallon” damage factor now makes the application of damages mathematically precise to individual dealers based on volumes purchased. The combination of these factors satisfies the requirements in every jurisdiction with respect to the Plaintiffs’ entitlement to prejudgment interest. See Alfa Mut. Ins. Co. v. Beard, 597 So.2d 664, 666-67 (Ala.1992) (liquidated where damages are reasonably ascertainable at time of breach, measured by fixed or established external standard, or by standard apparent from document