The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Oneta Sampson brought this action seeking redress against
Defendants Western Sierra Acceptance Corporation ("Western Sierra") and
Ridge Chrysler Plymouth, LLC ("Ridge Chrysler") for accessing her credit
report without her consent or any lawful reason, in violation of the Fair
Credit Reporting Act (FCRA). Plaintiff now seeks class certification
pursuant to Federal Rule of Civil Procedure 23. The proposed class would
consist of all persons whose credit reports were accessed or caused to be
accessed by Western Sierra for the purpose of transmitting the
"Pre-Approved Notices" (See Plaintiffs. Mem. Exhibit A) on or after Feb.
In considering Plaintiff's motion for class certification, I may not
conduct a preliminary inquiry into the merits of the underlying claims.
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178 (1974).
However, I may look beyond the pleadings to determine whether the
requirements of Rule 23 are met. Szabo v. Bridgeport Machs.,
Inc., 249 F.3d 672, 677 (7th Cir. 2001). In order to proceed as a
class action, plaintiffs must prove their action meets the four
requirements of Rule 23(a): numerosity, commonality, typicality,
and adequacy as well as the requirements of at least one subsection of
Rule 23(b).*fn1 Eisen, 417 U.S. at 163.
A. Rule 23(a)(1) Numerosity
The potential class of approximately 65,000 members easily meets the
numerosity requirements of Rule 23(a)(1). This estimate is based on the
number of persons who received the "Pre-Approved Notice."*fn2 A
potential class of this size would certainly make joinder impracticable.
Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D. Ill. 1986).
B. Rule 23(a)(2) Commonality & Rule 23(a)(3) Typicality
Plaintiff's factual and legal issues are sufficiently similar to those
of the potential class to satisfy both the commonality and typicality
requirements of Rule 23(a)(2) and Rule 23(a)(3) respectively. The issues
of commonality and typicality are closely related, Keele v.
Wexler, 149 F.3d 589, 595 (7th Cir. 1998), and as such can be dealt
with together here. Defendants' alleged wrongful accessing of credit
reports and sending of mailers constitutes standardized conduct and
creates commonality. Keele, 149 F.3d at 594 (citation omitted).
This single course of action by Defendants leads to the central legal
question of this case, whether obtaining a credit report for the purpose
of transmission of the "Pre-Approved Notice" violated the FCRA, and
creates typicality. De La Fuente v. Stokely-Van Camp, Inc.,
713 F.2d 225, 232 (7th Cir. 1983).
C. Rule 23(a)(4) Adequacy
The named Plaintiff, Oneta Sampson, adequately represents the class as
a whole. Sampson has retained competent counsel, has a sufficient
interest in the outcome of the case, and does not have interests
antagonistic to those of the class. In re VMS P'ship Se. Litig.,
1992 U.S. Dist. LEXIS 14445 at *13 (N.D. Ill. Sept. 23, 1992); See
Also Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992).
D. Rule 23(b)(3) Predominance and Superiority
Rule 23(b)(3) requires that common questions of law or fact predominate
and that the class action is the superior form of adjudication. Defendant
Ridge Chrysler claims that Plaintiff is not entitled to punitive damages
set by the FCRA and will instead have to prove actual damages for each
individual case. These individual damages, Ridge Chysler argues, will
predominate over the common issues of the class.
Even assuming that Plaintiff is not able to make a showing for punitive
damages, I would still find that common issues of law and fact
predominate. Generally, considerable overlap exists between the court's
determination of commonality and a finding of predominance. Mejdreck
v. Lockformer, No. 01-C6107, 2002 U.S. Dist. LEXIS 14785 at *17-18
(N.D. Ill. Aug. 9, 2002)(citing Demitropoulos v. Bank One Milwaukee,
N.A., 915 F. Supp. 1399, 1419 (N.D. Ill. 1996). Much like
commonality, predominance is found where there exists a common nucleus of
operative facts. Id. (citation omitted).
In this case, the facts concerning individual class members are very
similar. Each potential class member's credit report was accessed by
Defendants, and each potential class member received the "Pre-Approved
Notice." The underlying questions of law, such as whether
the mailer violated the FCRA and whether the violation was willful,
will also be the same and must be decided before the issue of damages can
be reached. Although some individualized questions may exist, they should
not defeat class certification. Mejdreck, 2002 U.S. Dist. LEXIS
14785, at *20 (quoting Sterling v. Velsicol Chem. Corp.,
855 F.2d 1188, 1197 (6th Cir. 1988)). Accordingly, I find that common issues
of law and fact predominate over the other issues involved in this case.
Finally, both Defendants argue that because the potential statutory
award under the FCRA is disproportionate to the harm caused, a class
action is not the superior method of adjudication. The FCRA provides for
minimum and maximum damages of $100 and $1,000 respectively. If I
certified the narrower class suggested by Plaintiff (those people who
received the actual "Pre-Approval Notice"), the class would consist of
65,000 potential ...