United States District Court, N.D. Illinois, Eastern Division
August 30, 2005.
IRENE CHAPMAN, Plaintiff,
WORLDWIDE ASSET MANAGEMENT, L.L.C. and WORLDWIDE ASSET PURCHASING, L.L.C., Defendants.
The opinion of the court was delivered by: WILLIAM HART, Senior District Judge
MEMORANDUM OPINION AND ORDER
In this putative class action, named plaintiff Irene Chapman
alleges that a notice she received regarding defendants' privacy
policy that is defendants' policy about sharing information
about plaintiff was part of an attempt to collect a debt. Named
as defendants are Worldwide Asset Management, L.L.C. and
Worldwide Asset Purchasing, L.L.C. Plaintiff contends that
Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et
seq. Defendants' motion to dismiss the complaint was previously
denied. See Chapman v. Worldwide Asset Management, L.L.C.,
2005 WL 818880 (N.D. Ill. April 6, 2005) ("Chapman I").
Presently pending is plaintiff's motion for class certification
which is opposed by defendants. The burden is on plaintiff to demonstrate that all the
requirements for class certification are satisfied. Retired
Chicago Police Association v. City of Chicago, 7 F.3d 584, 596
(7th Cir. 1993), cert. denied, 519 U.S. 932 (1996); Dawson v.
Allied Interstate, Inc., 2005 WL 1692606 *1 (N.D. Ill. July 13,
2005); Oshana v. Coca-Cola Bottling Co., 225 F.R.D. 575, 579-80
(N.D. Ill. 2005). Federal Rule of Civil Procedure 23(a) requires
that the following four prerequisites be satisfied: "(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 claims or defenses of the representative
parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect
the interests of the class." Failure to meet any one of these
requirements precludes certification of a class. Retired Chicago
Police, 7 F.3d at 596; Dawson, 2005 WL 1692606 at *1; Jackson
v. National Action Financial Services, Inc., 227 F.R.D. 284, 286
(N.D. Ill. 2005). If the Rule 23(a) elements are satisfied,
plaintiffs must also satisfy one of the subsections of Rule
In ruling on class certification, the court has an independent
duty to scrutinize the appropriateness of class certification;
the court is not limited to arguments made by a party opposing
certification. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003); In re General Motors Corp. Engine
Interchange Litigation, 594 F.2d 1106, 1134 (7th Cir.), cert.
denied, 444 U.S. 870 (1979). See also Szabo v. Bridgeport
Machines, Inc., 249 F.3d 672, 677 (7th Cir.), cert. denied,
534 U.S. 951 (2001). Additionally, in determining whether to
grant certification, whether a claim will ultimately be
successful is not a consideration. Payton v. County of Kane,
308 F.3d 673, 677 (7th Cir. 2002), cert. denied, 540 U.S. 812
(2003); Rahim v. Sheahan, 2001 WL 1263493 *9-10 (N.D. Ill. Oct.
19, 2001). However, that does not mean that the merits of claims
can be completely ignored. The "boundary between a class
determination and the merits may not always be easily
discernible." Retired Chicago Police, 7 F.3d at 598-99 (quoting
Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130,
657 F.2d 890, 895 (7th Cir. 1981), cert. denied, 455 U.S. 1017
(1982)). In order to resolve questions of typicality or whether
common questions predominate, it is sometimes necessary to
determine the contours of the applicable law. See Szabo,
249 F.3d at 676-77; Retired Chicago Police, 7 F.3d at 598-99
(quoting General Telephone Co. of Southwest v. Falcon,
457 U.S. 147, 160 (1982)); Jones v. Risk Management Alternatives, Inc.,
2003 WL 21654365 *2 n. 2 (N.D. Ill. July 11, 2003); Peoples v.
Sebring Capital Corp., 2002 WL 406979 *2 (N.D. Ill. March 15,
2002). In this case, named plaintiff seeks to certify a Rule 23(b)(3)
class. Plaintiff's proposed class definition: is "(a) all natural
persons with Illinois, Indiana, or Wisconsin addresses, (b) to
whom WAM and/or WAP sent a notice in the form represented by
Exhibit A of the Complaint, (c) on or after November 23, 2003,
and (d) on or before December 13, 2004." The first date is one
year prior to the filing of the Complaint and the second date is
20 days after the filing of the Complaint.
Rule 23(a)(1) requires that the class be so numerous that
joinder of all the members is impracticable. Plaintiff need not
demonstrate the exact number of class members as long as that
conclusion is apparent from good-faith estimates. Bowe Bell
Howell Co. v. Immco Employees' Association, 2005 WL 1139645 *3
(N.D. Ill. May 11, 2005); Lucas v. GC Services L.P.,
226 F.R.D. 337, 340 (N.D. Ind. 2005). The estimates may be supported by
"common sense assumptions." Bell Howell, 2005 WL 1139645 at
*3; Lucas, 226 F.R.D. at 340; Maxwell v. Arrow Financial
Services, LLC, 2004 WL 719278 *2 (N.D. Ill. March 31, 2004).
"Courts have found that it is reasonable to assume the number of
potential class members satisfies the numerosity requirement when
the defendant allegedly used `preprinted, standardized debt
collection letters in attempting to collect on the [allegedly
delinquent] debt.'" Lucas, 226 F.R.D. at 340 (quoting Hamid v.
Blatt, Hasenmiller, Leibsker, Moore & Pellettieri, 2001 WL 1543516 *3 (N.D. Ill. Nov. 30, 2001) (citing Peters v. AT & T
Corp., 179 F.R.D. 564, 567-68 (N.D. Ill. 1998))); Maxwell,
2004 WL 719278 at *3 (same). Inferences may also be drawn based
on the size of the pertinent entity. Lucas, 226 F.R.D. at 340;
Ingram v. Corporate Receivables, Inc., 2003 WL 21982152 *2
(N.D. Ill. Aug. 19, 2003). Still, a finding of numerosity cannot
be based on conclusory allegations that joinder is impracticable
or speculation about the size of the class. Muro v. Target
Corp., 2005 WL 1705828 *13 (N.D. Ill. July 15, 2005) (quoting
Marcial v. Coronet Insurance Co., 880 F.2d 954, 957 (7th Cir.
1989)); Bell Howell, 2005 WL 1139645 at *3.
Here, plaintiff has not provided a general estimate as to the
size of the class.*fn1 However, named plaintiff received a
form collection letter. Plaintiff also provides securities
filings supporting that WAM is one of the nation's largest debt
buyers and that, along with its affiliates, it generates over
$100,000,000 in annual revenues. Additionally, plaintiff notes
that the mailing to her had indicia that it was part of a
discounted mass mailing that would require at least 200 pieces of
mail. The class, though, is limited to three states, so that does not necessarily mean a minimum of 200 class members. In any
event, the form letter and the size of defendants' business
support that the number of mailings would be more than large
enough to satisfy numerosity. Moreover, defendants do not contend
that the facts are otherwise or present any contrary evidence.
The only reasonable inference is that the number of potential
class members is well more than 200 persons. Numerosity is
Here, there are questions common to the class. Common questions
will include whether the form letter violates the FDCPA and
possibly which defendant was responsible for the letter and
whether each defendant is a debt collector as that term is used
in the FDCPA. See Chapman I, 2005 WL 818880 at *3-4. Such
common questions are likely to predominate. Whether a particular
plaintiff received the form letter should be readily
ascertainable from defendants' records. Issues as to individual
plaintiffs' states of mind should not arise because defendants'
conduct is to be judged from an objective unsophisticated
consumer viewpoint. See Durkin v. Equifax Check Services,
Inc., 406 F.3d 410, 414 (7th Cir. 2005); Smith v. American
Revenue Corp., 2005 WL 1162906 *4 (N.D. Ind. May 16, 2005).
Also, individual damages issues should not arise because the
class would be entitled to statutory damages even absent actual
damages. See Keele v. Wexler, 149 F.3d 589, 593-94 (7th Cir. 1998); Smith, 2005 WL 1162906 at *4. Here, common issues
are likely to predominate and a class action would be the
superior means of adjudication in that the common questions will
so predominate and the potential individual recoveries are
limited compared to the potential litigation costs. Cf. Lucas,
226 F.R.D. at 342; Maxwell, 2004 WL 719278 at *6. Rule
23(a)(2)'s requirement of common questions is satisfied and Rule
23(b)(3)'s requirements are satisfied.
Rule 23(a)(3) requires that the claims of the class
representatives be typical of the claims of the class. The
typicality requirement primarily focuses "on whether the named
representatives' claims have the same essential characteristics
as the claims of the class at large. `A plaintiff's claim is
typical if it arises from the same event or practice or course of
conduct that gives rise to the claims of other class members and
his or her claims are based on the same legal theory.'" De La
Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.
1983) (quoting Herbert Newberg, Class Actions ¶ 1115(b) at 185
(1977)). Accord Retired Chicago Police, 7 F.3d at 596-97;
Rahim, 2001 WL 1263493 at *14. It is only necessary for the
claim of the class representative and the claims of the class at
large to have the "same essential characteristics;" there may
still be differences. Retired Chicago Police, 7 F.3d at 597
(quoting De La Fuente, 713 F.2d at 232); Hardesty v.
International Steel Group, Inc., 2005 WL 1712257 *2 (N.D. Ind. July 21, 2005);
Rahim, 2001 WL 1263493 at *14. Similar legal theories may
control despite factual distinctions. See Rosario v.
Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992), cert. denied,
506 U.S. 1051 (1993); Hardesty, 2005 WL 1712257 at *2; Clay v.
American Tobacco Co., 188 F.R.D. 483, 491-92 (S.D. Ill. 1999).
"The key to typicality is based on the relationship between the
class representative and the class members: are the named
plaintiff's interests aligned with those of the proposed class in
such a way that the representative, in pursuing his own claims,
will also advance the interest of the class?" Rahim, 2001 WL
1263493 at *14; Murry v. America's Mortgage Banc, Inc., 2005 WL
1323364 *8 (N.D. Ill. May 5, 2005). See also In re Bromine
Antitrust Litigation, 203 F.R.D. 403, 409 (S.D. Ind. 2001).
By definition, all members of the class will be persons who
received the form notice. There is no indication that named
plaintiff is situated differently than other members of the
class. The typicality requirement is satisfied.
Last, Rule 23(a)(4) requires that the named representative
adequately represent the interests of the class. Three elements
must be satisfied: "(1) the class representative cannot have
antagonistic or conflicting claims with other members of the
class; (2) the class representative must have a `sufficient
interest in the outcome to ensure vigorous advocacy;' (3) counsel for the class representative must be competent,
experienced, qualified and generally able to conduct the proposed
litigation vigorously." Lifanda v. Elmhurst Dodge, 2001 WL
755189 at *3 (N.D. Ill. July 2, 2001) (quoting Chandler v.
Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 308 (N.D. Ill.
1995)). Accord Dawson, 2005 WL 1692606 at *2; Robles v.
Corporate Receivables, Inc., 220 F.R.D. 306, 314 (N.D. Ill.
2004). Defendants contend Rule 23(a)(4) is not satisfied because
named plaintiff herself is not adequately aware of the proceeding
and class counsel is not competent.
"[A]s long as a class representative's interests do not
conflict with those of the proposed class, she need only have a
marginal familiarity with the facts of her case and need not
understand the larger legal theories upon which her case is
based." Randle v. GC Services, L.P., 181 F.R.D. 602, 604 (N.D.
Ill. 1998). Accord Carbajal v. Capital One, 219 F.R.D. 437,
442 (N.D. Ill. 2004); Lifanda, 2001 WL 755189 at *3. The class
representative should be conscientious and have a basic
understanding of the litigation. Carbajal, 219 F.R.D. at 442.
There is no contention that named plaintiff has a conflict of
interest and nothing before the court indicates that any conflict
exists. Defendants selectively point to named plaintiff's
deposition testimony. At her deposition, however, plaintiff
showed an understanding that the lawsuit involved the issue of defendants sharing her and other class members'
information with third parties. That is sufficient knowledge of
the case. Cf. Jandek v. Hearst Corp., 1999 WL 966966 *2 (N.D.
Ill. Oct. 1, 1999); McFarland v. Bass & Associates, P.C., 1998
WL 42286 *5 (N.D. Ill. Jan. 30, 1998). Plaintiff clearly
expressed her understanding that she had a responsibility to act
for the class and not just her own self-interest. Defendants
point to her testimony regarding an unrelated case in which she
was also the named plaintiff. She testified that she was settling
that case for the benefit of a class. Defendants contend that is
inconsistent with the fact that the case was not certified as a
class action and instead settled on an individual basis. As
plaintiff points out, however, the settlement was in negotiations
at the time of her deposition and it subsequently turned out that
there was not a basis for certifying the case as a class action.
It is found that plaintiff herself is an adequate representative.
Defendants also contend that the attorneys selected by
plaintiff are not adequate representatives. Under a recent
amendment to Rule 23, this court must appoint class counsel.
In appointing class counsel, the court
(i) must consider:
the work counsel has done in identifying or
investigating potential claims in the action,
counsel's experience in handling class actions,
other complex litigation, and claims of the type
asserted in the action, counsel's knowledge of the applicable law, and
the resources counsel will commit to representing
(ii) may consider any other matter pertinent to
counsel's ability to fairly and adequately represent
the interests of the class;
(iii) may direct potential class counsel to provide
information on any subject pertinent to the
appointment and to propose terms for attorney fees
and nontaxable costs; and
(iv) may make further orders in connection with the
Fed.R.Civ.P. 23(g) (1) (C).
Plaintiff is represented by Daniel Edelman and other attorneys
at Edelman, Combs, Latturner & Goodwin, L.L.C. Edelman and his
law firm have substantial experience with FDCPA and other
consumer litigation, including class actions. They have the
resources to handle the present case. This court has previously
found Edelman and his firm to be capable counsel for representing
consumers in class actions, including FDCPA cases. See, e.g.,
Krause v. GE Capital Mortgage Services, Inc., 1998 WL 831896 *7
(N.D. Ill. Nov. 20, 1998) (Hart, J.) (RICO and state consumer
fraud claims related to credit fees); McFarland, 1998 WL 42286
at *5 (Hart, J.) (FDCPA); Brown v. LaSalle Northwest National
Bank, 1993 WL 313563 *5 (N.D. Ill. Aug. 17, 1993) (Hart, J.)
(RICO and state consumer fraud claims related to financing of
automobile sales); Pleasant v. Risk Management Alternatives,
Inc., 2003 WL 22175390 *5 (N.D. Ill. Sept. 19, 2003) (Coar, J.) (FDCPA); Bigalke v. Creditrust Corp., 2001 WL 1098047 *11-12
(N.D. Ill. Sept. 14, 2001) (Brown, J.) (FDCPA); Jandek, 1999 WL
966966 at *2-3 (Gottschall, J.) (FDCPA). That counsel has been
found adequate in other cases is persuasive evidence that they
will be found adequate again. Morris v. Risk Management
Alternatives, Inc., 203 F.R.D. 336, 344 (N.D. Ill. 2001)
(quoting Gomez v. Illinois State Board of Education,
117 F.R.D. 394, 401 (N.D. Ill. 1987)). There have already been three
contested motions in this case, a motion to dismiss, see
Chapman I, 2005 WL 818880, a motion to quash, see Memorandum
Opinion & Order dated June 15, 2005 (Docket Entry 35), and the
present motion for class certification. The pleadings filed on
behalf of plaintiff support that Edelman and his firm continue to
be capable and well-qualified counsel in FDCPA class actions.
Defendants point to three cases in which Edelman or his firm
has been sanctioned by the court, contending that this shows he
is not qualified to represent the class. In Riddle & Associates,
P.C. v. Kelly, 414 F.3d 832 (7th Cir. 2005), the Seventh Circuit
upheld the imposition of 28 U.S.C. § 1927 sanctions on Edelman's
firm after a letter was sent to the law firm Riddle & Associates,
P.C., accusing it of violating the FDCPA and Riddle successfully
brought a declaratory judgment action for a declaration that
there had been no violation. The Seventh Circuit also held that
the law firm representing Riddle was entitled to § 1927 sanctions based on a counterclaim filed
against that firm. In both instances, Edelman was personally
involved and it was held that frivolous FDCPA contentions were
asserted or defended. In D'Agostino v. Lawrence, No. 04 C 3660
(March 9, 2005) (Docket Entries 20-21), the court imposed § 1927
sanctions against Edelman's law firm for bringing a purported
class action that contained no potential members because another
pending putative class action (Iosello v. Lexington Law Firm)
already included all potential members. That ruling is presently
on appeal. In Iosello v. Lexington Law Firm, No. 03 C 987 (N.D.
Ill. Dec. 1, 2004) (Docket Entry 195), the magistrate judge has
recommended that § 1927 sanctions be imposed on Edelman and/or
other members of his law firm*fn2 for continuing to pursue a
motion to take the D'Agostino case as related after the
D'Agostino case had been dismissed. Objections to the report
and recommendation of the magistrate judge are pending before the
Plaintiff contends the sanctions should not be viewed
negatively as regards counsel's qualifications. She contends the
sanctions were incurred while providing vigorous representation.
Sanctionable conduct should not be equated with vigorous or
zealous representation. An attorney's duty to zealously represent a client does not permit sanctionable conduct such as
making frivolous arguments on behalf of the client. See Speights
v. Frank, 361 F.3d 962, 964 (7th Cir.), cert. denied,
125 S. Ct. 119 (2004). This court certainly does not condone the
sanctionable conduct of pursuing frivolous arguments or
litigation nor does it view such conduct as evidence of vigorous
representation. Nevertheless, the court does not find that these
examples of sanctionable conduct show that counsel cannot
adequately represent a class in this case. While counsel may in
other cases have gone beyond the bounds of proper representation,
their record here supports that they are competent for this case.
It is found that plaintiff's counsel are adequately qualified to
represent the class. The class will be certified and plaintiff's
counsel will be appointed as class counsel.
IT IS THEREFORE ORDERED that plaintiff's motion for class
certification  is granted. Daniel A. Edelman and the law firm
of Edelman, Combs, Latturner & Goodwin, L.L.C. are appointed as
class counsel. A class is certified consisting of: all natural
persons with Illinois, Indiana, or Wisconsin addresses, to whom
defendant(s) sent a notice in the form represented by Exhibit A
of the Complaint and who received the notice on or after November
23, 2003 and on or before December 13, 2004. Any persons
affiliated with one or more defendant are excluded from the
class. The parties shall promptly meet to discuss a form of notice to the class. By September 12, 2005, the parties shall
submit a proposed notice to the class.
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