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SAMPSON v. WESTERN SIERRA ACCEPTANCE CORP.

February 25, 2004.

ONETA S. SAMPSON and LISA STROUD, Plaintiffs,
v.
WESTERN SIERRA ACCEPTANCE CORP., RIDGE CHRYSLER/PLYMOUTH, LLC doing business as MARQUETTE CHRYSLER JEEP, Defendants



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. 25, 2001.

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 Page 2 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). Page 3

 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 Page 4 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 ...


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