The opinion of the court was delivered by: JAMES H. ALESIA
Before the court is plaintiffs' motion for class certification on Counts I and II of the Complaint. FED. R. CIV. P. 23. The motion is granted.
In Count I, plaintiffs Katherine Shields and Cheryl Ann Zuber allege violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., and regulations promulgated thereunder on the part of defendant Lefta, Inc. d/b/a Premier Jeep Eagle ("Premier"). In Count II, plaintiffs allege a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("Consumer Fraud Act"), 815 ILCS 505/1 et seq. Counts III and IV apply only to plaintiff Katherine Shields, and there is no attempt to certify class action on those counts.
A detailed explication of the allegations is not necessary. In a nutshell, plaintiffs allege that defendant has made misrepresentations regarding the price of the extended warranty or service contracts bought and financed through the dealership. The form a customer signs when financing details where the money is going. The dealership has to do this under Regulation Z, 12 C.F.R. § 226.18. The rub is that the extended warranty appears under the section of the form listing money paid to others. Allegedly, the amount that represents the charge to the plaintiffs for the extended warranty is more than the amount the dealership is paying to the third party that is providing the extended warranty. Thus, it is plaintiffs' theory, the representation that the amount charged for the extended warranty is an amount paid to others is in violation of TILA, Regulation Z and the Illinois Consumer Fraud Act. Additional allegations of fraud are related to misrepresenting the warranty price as among non-negotiable items.
But plaintiffs now assert that this has not only happened to them; it happens quite a bit, and they would like the alleged victims of those still-actionable instances certified as a class. So the court turns to the two hurdles to certification: satisfaction of all of the Rule 23(a) requirements and satisfaction of one of the Rule 23(b) requirements. It is worth noting that a number of judges of this district have certified classes of plaintiffs suing other dealerships on identical theories. See, e.g., Cirone-Shadow v. Union Nissan of Waukegan, 1995 U.S. Dist. LEXIS 5232, No. 94 C 6723, 1995 WL 238680 (N.D. Ill. Apr. 20, 1995) (Kocoras, J.) (citing cases;). Nevertheless, as Judge Kocoras noted before adding to the trend, the trend itself is not enough, each case demanding its own separate consideration. See id. at *2.
II. RULE 23(a): PREREQUISITES TO A CLASS ACTION
Plaintiffs seek to certify a class consisting of all persons who satisfy the following criteria:
(1) They purchased a service contract or extended warranty from Premier.
(2) Their transaction was financed by a retail installment contract.
(3) Their transaction was documented as a consumer transaction (i.e., TILA disclosures were given).
(4) The retail installment contract contains the form of representation complained of; i.e., it states that an amount was paid to a third party on account of an extended warranty that is other than the amount actually collected by the third party.
For Count I, plaintiffs propose the class would include anyone whose retail installment contract is dated on or after November 9, 1993. For Count II, plaintiffs propose the class would include anyone whose retail installment contract was outstanding on or after November 9, 1991. Defendant contests all four Rule 23(a) prerequisites. Plaintiffs therefore are put to their burden to "establish[ ] that each of the requirements for class ...