The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Moises Carbajal, Georgia Redd, and Ron Butler have sued
Capital One, FSB, Capital One Services, Inc., and Westmoreland Agency,
Inc., for alleged violations of the Fair Debt Collection Practices Act.
Plaintiffs received solicitations from the defendants to transfer
delinquent debts owed to other creditors to a new Capital One Visa credit
card account. They contend that this constituted debt collection activity
subject to the FDCPA, and they assert that Capital One's solicitation
improperly obscured the FDCPA-required "Validation" notice and
misleadingly advised debtors that they would still be able to dispute the
old debt after its transfer to Capital One. The Court previously denied
defendants' motion to dismiss plaintiffs' third amended complaint for
failure to state a claim. Carbajal v. Capital One, FSB, No. 03
C 1123, 2003 WL 22595265 (N.D. Ill. Nov. 10, 2003). Plaintiffs have
moved to certify two classes, consisting of all persons in Illinois
(Class A) and Indiana (Class B) to
whom defendants sent similar solicitations on or after February 13,
2002. For the reasons stated below, the Court grants plaintiffs' motion.
To obtain class certification, plaintiffs must satisfy the four
requirements of Federal Rule of Civil Procedure 23(a) and one of the
requirements of Rule 23(b). E.g., Harriston v. Chicago Tribune
Co., 992 F.2d 697, 703 (7th Cir. 1993). Rule 23(a)'s four
requirements for class certification are that (1) the class is so
numerous that joinder of all members is impracticable; (2) there are
questions of law or fact common to the class; (3) the representatives'
claims or defenses are typical of those of the class; and (4) the
representatives will fairly and adequately represent the interests of the
class. See Fed.R.Civ.P. 23(a). Plaintiffs seek certification
of both classes under Rule 23(b)(3), which requires, in addition to the
above, a showing that questions of law or fact common to all class
members predominate over individual issues, and that the class action
mechanism is superior to other available means of adjudicating the
controversy. See Fed.R.Civ.P. 23(b)(3). We deal with each of
these requirements in turn, following the Supreme Court's admonition that
we must conduct a "rigorous analysis" of whether the proposed classes
satisfy Rule 23's requirements. See General Telephone Co. of
Southwest v. Falcon, 457 U.S. 147, 161 (1982).
1. Rule 23(a) requirements
Though plaintiffs have not attempted to quantify the members of the
proposed classes, it is undisputed that Rule 23(a)'s numerosity
requirement is met. The proposed classes also satisfy the Rule's
commonality requirement. Rule 23(a) requires only that there be at least
one issue common to all class members, so long as the issue is one whose
determination will advance the litigation. See, e.g.,
Alkire v. Irving, 330 F.3d 802, 819 (6th Cir. 2003);
Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993).
In this case, the claims of each of the class members arise from the
receipt of one or more of a series of mass mailings; the plaintiffs
challenge those mailings' compliance with the FDCPA. This is sufficient
to meet Rule 23(a)'s commonality requirement. "Common nuclei of fact are
typically manifest where, like in the case sub judice, the
defendants have engaged in standardized conduct towards members of the
proposed class by mailing to them allegedly illegal form letters or
documents." Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998).
A named plaintiffs claim is considered typical of the claims of the
class for purposes of Rule 23(a) if the claim arises from the same event
or practice or course of conduct that gives rise to the claims of the
other class members and is based on the same legal theory as those of the
class members. Keele, 149 F.3d at 594; De La Fuente v.
Stokely-Van Camp, Inc., 713 F.3d 225, 232 (7th Cir. 1983). This is
plainly so with regard to the named plaintiffs' FDCPA claims in this
Defendants do not dispute that Redd's claims are typical of those of
the class. Defendants argue, however, that the other named plaintiffs'
claims are not typical because those plaintiffs are subject to unique
defenses not applicable to class members generally. The claims of a
proposed class representative are considered atypical if the
representative is subject to a unique defense that is reasonably likely
to be a major focus of the litigation. See Rainy Lake One Stop, Inc.
v. Marigold Foods, Inc., 195 F.3d 430, 437 (8th Cir. 1999); Koos
v. First National Bank, 496 F.2d 1162, 1164 (7th Cir. 1974). To put
it another way, if the class representative is likely to be preoccupied
with a unique defense, his claims are atypical. In re CBC Companies,
Inc. Collection Letter Litigation, 181 F.R.D. 380, 385 (N.D. Ill.
Defendants contend that the claims of Carbajal and Butler are atypical
because those plaintiffs are subject to setoffs arising from prior
accounts they had with Capital One unrelated to the debts that were the
subject of the solicitations they challenge in this case. Specifically,
Carbajal is claimed to have previously had a "small business" credit card
account with Capital One on which, defendants contend, he defaulted and
on which the balance due is just over $2,000. Carbajal is also claimed to
have had a separate Capital One credit card account on which he defaulted
in 1998; he allegedly obtained a new Capital One credit card account in
September 2002 to which the balance from the old account was transferred.
Defendants contend that the balance due on this account at the time the
present suit was filed was just over $1,000, but they do not contend that
the account is in default. Butler is claimed to have a car loan with
Capital One on which he owes about $6,000; defendants do not contend that
the loan is in default.
Defendants have made only a half-hearted effort to show that these
purported setoffs are likely to become a focus of the litigation, let
alone a major focus. First of all, defendants do not contend that the
referenced prior debts of Carbajal and Butler are in any way related to
their debts that were involved in the solicitations challenged in this
case. Second, Butler's car loan and Carbajal's second ($1,000) credit
card debt are not claimed to be in default; put another way, there is no
contention that either Butler or Carbajal has breached any contract or
other obligation with regard to these debts.
Defendants' suggestion that unrelated, unmatured debts may be set off
against a debt collector's liability under the FDCPA is unpersuasive, and
again defendants have made only the barest of efforts to argue the point.
They cite (in a footnote!) only an Indiana case indicating that under
that state's common law, a bank may set off the account of a depositor
against an unmatured debt owed to
the bank. See First Bank of Whiting v. Samocki Bros. Trucking
Co., 509 N.E.2d 187, 198 (Ind. App. 1987). But Carbajal lives in
Illinois, not Indiana, and the law in Illinois is different: an Illinois
bank may set off funds on general deposit only against matured
debts, absent express authority to the contrary (which defendants have
not suggested exists in Carbajal's case). Tri State Bank of East
Dubuque v. Colby, 141 Ill. App.3d 807, 811, 490 N.E.2d 1037, 1039
Perhaps more importantly, defendants have cited no authority suggesting
that either Illinois' or Indiana's common law rule regarding setoffs
supports allowing a defendant to offset the plaintiffs' unrelated debts
against defendants' alleged liabilities under the FDCPA. The general rule
that applies to common law setoffs is that they are permitted "only when
the debts are `mutual,' and debts arising at different times out of
different circumstances are not mutual." Soo Line R. Co. v. Escabana
& Lake Superior R. Co., 840 F.2d 546, 551 (7th Cir. 1988).
Though supposedly offsetting obligations "held by the same parties in the
same capacity (that is, as obligor and obligee)" may be considered mutual
and thus subject to common law setoff, In re Doctors Hospital of Hyde
Park, Inc., 337 F.3d 951, 955 (7th Cir. 2003), such is not the case
here: an obligation that exists pursuant to a liability imposed by a
federal statute is not held "in the same capacity" as a contractual debt.
Defendants cite no authority for the proposition that an entity liable
for statutory damages for violating a federal statute like the FDCPA
would be entitled to offset unrelated (let alone unmatured) debts.
Rather, the cases they cite involved the offset of the very debts out of
which the plaintiffs' claims arose. See, e.g., Channell v.
Citicorp National Services, Inc., 89 F.3d 379 (7th Cir.
1996). Even if debts of that type satisfy the "mutuality" test, the debts
of Carbajal and Butler identified by defendants are not of that type. In
sum, there is no basis to believe that any defenses particular to
Carbajal and Butler will be a focus of the litigation or will divert
their attention or that of class counsel.*fn2 The Court finds that each
of the named plaintiffs' claims is typical of those of the class within
the meaning of Rule 23(a).
The final requirement of Rule 23(a) is that the proposed
representatives will fairly and adequately represent the interests of the
class. This requirement "has three elements: (1) the chosen class
representative cannot have antagonistic or conflicting claims with other
members of the class,. . . (2) the named representative must have
sufficient interest in the outcome to ensure vigorous advocacy,. . .
and, (3) counsel for the named plaintiff must be competent, experienced,
qualified, and generally able to conduct the proposed litigation
vigorously." Gammon v. GC Services Ltd. Partnership,
162 F.R.D. 313, 317 (N.D. Ill. 1995) (citations and internal quotation marks
omitted). Defendants do not contest the competence of class counsel, the
law firm of Edelman, Combs & Latturner, and the Court has rejected
defendants' argument that Carbajal and Butler have antagonistic interests
due to their other alleged debts owed to Capital One. Defendants argue,
however, that each of the plaintiffs is confused regarding the claims
made in the case, that Redd made misrepresentations in her deposition,
and that Butler has conflicting interests because he wants to keep his
involvement in this case from his employer and because, as a plaintiff in
a number of other consumer-law cases, he is effectively dependent on the
The Court disagrees. What defendants characterize as confusion
regarding the sequence of events is more likely attributable to the
fact that defendants sent repeated similar mailings, and what they
characterize as confusion about legal matters is more likely attributable
to the plaintiffs' lack of sophistication and relative unfamiliarity with
the inner workings of federal civil litigation. In any event, as our
colleague Judge Ruben Castillo noted in the Gammon case,
[t]hese facts are entitled to little weight . . .
when assessing adequacy of representation. As the
Seventh Circuit has stated, "[T]he class
representative's role is limited. It was found not
to be enough to defeat a class certification in
Surowitz v. Hilton Hotels Corp.,
383 U.S. 363, 366 (1966), that the named plaintiff did not
understand her complaint at all, could not explain
the statements in it, had little knowledge of what
the lawsuit was about, did not know ...