United States District Court, N.D. Illinois, Eastern Division
October 5, 2005.
WILLIAM THOMPSON, and DANIEL SCHULTZ, individually and on behalf of all others similarly situated, Plaintiffs,
SALVATORE SPINELLI; and OXFORD MANAGEMENT SERVICES, INC., Defendants.
The opinion of the court was delivered by: JOHN DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, William Thompson and Daniel Schultz, brought this
action against Defendants, Salvatore Spinelli and Oxford
Management Services, Inc. ("Oxford"), for alleged violations of
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et
seq. ("FDCPA"). Thompson alleges that Spinelli sent him
collection letters, which sought to collect a debt incurred for
personal, family or household purposes that included a request
for an $8.00 credit card processing fee. Schultz alleges that
Oxford sent him collection letters, which sought to collect a
debt incurred for personal, family or household purposes that
included a request for an $8.00 credit card processing fee.
Plaintiffs allege the collection letters were form letters that
violated the FDCPA by falsely representing that a debtor has a
duty to pay an $8.00 credit card processing fee. Plaintiffs
further allege that the FDCPA prohibits the collection of any
amount unless such amount is expressly authorized by the
agreement creating the debt or permitted by law; and the Illinois
Collection Agency Act, 225 ILCS 425/9(a)(20), makes it unlawful
when collecting or attempting to collect any interest or other
charge or fee in excess of the actual debt, unless that interest or other charge is expressly authorized by
the agreement creating the debt or expressly authorized by law or
unless in a commercial transaction such interest or other charge
or fee is expressly authorized in a subsequent agreement.
Presently before the Court is the Plaintiff's motion for class
Plaintiffs seek class certification under Federal Rule of Civil
Procedure 23(b)(3) of:
All natural persons who, according to Defendant's
records, reside in the State of Illinois and meet the
following criteria: (a) within one year prior to the
filing of this action [Dec 23, 2004]; (b) were sent a
collection letter by Defendants; (c) which referred
to a credit card payment processing fee.
Allegations made in support of class certification are
considered true (Hardin v. Harshbarger, 814 F. Supp. 703, 706
(N.D. Ill. 1993)); and, as a general matter, this Court does not
examine the merits of the case (Retired Chicago Police Ass'n v.
City of Chicago, 7 F.3d 584
, 598 (7th Cir. 1993)). However, a
court "may look beyond the pleadings to determine whether the
requirements of Rule 23 have been satisfied." Dhamer v.
Bristol-Myers Squibb Co., 183 F.R.D. 520, 529-30 (N.D. III
1998), citing Castano v. American Tobacco Co., 84 F.3d 734
(5th Cir. 1996). "A court must understand the claims, defenses,
relevant facts and applicable substantive law in order to make a
meaningful determination of certification issues." Dhamer,
183 F.R.D. at 530.
To receive class certification, plaintiff must satisfy all four
elements of Rule 23(a), which include: numerosity, commonality,
typicality, and adequacy of representation. Fed.R.Civ.P. 23(a).
Plaintiff must also satisfy at least one of the three provisions
under Rule 23 (b).
Rule 23(a)(1) requires that the class be so numerous that
joinder of all the members is impracticable. Fed.R.Civ.P.
23(a)(1). Plaintiff need not demonstrate the exact number of
class members so long as a conclusion is apparent from good faith
estimates (Peterson v. H & R Block Tax Servs., 174 F.R.D. 78,
81 (N.D. Ill. 1997)); and the court is entitled to make "common
sense assumptions" in order to support a finding of numerosity
(Grossman v. Waste Management, Inc., 100 F.R.D. 781, 785 (N.D.
Ill. 1984)). Plaintiff alleges that Defendants have collected
illegal fees approximately 4,900 times from Illinois debtors.
Defendants do not dispute this number. Accordingly, Plaintiffs
have sufficiently demonstrated numerosity.
Commonality and Typicality
Commonality exists if the class members share common questions
of law or fact. The requirement is usually satisfied when a
common nucleus of operative facts unites a class. Rosario v.
Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). The presence of
some factual variations among the class members does not defeat
commonality, so long as there is at least one question of law or
fact common to the class. Rosario, F.2d at 1017.
The typicality requirement of Rule 23(a)(3) is closely related
to the commonality requirement of Rule 23(a)(2). Ruiz v. Stewart
Associates, Inc., 171 F.R.D. 238, 242 (N.D. Ill. 1997). A
plaintiff's claim is typical if it arises from the same event or
practice or course of action that gives rise to the claims of
other class members and if his or her claims are based on the
same legal theory. Rosario, 963 F.2d at 1018.
Defendants argue that the Plaintiffs have not satisfied either
the commonality or typicality requirements because the Plaintiffs
solely rely on the alleged collection letter sent to each member.
Defendants argue that each member's agreement has varying terms
and that each is subject to unique defenses not typical to each
member of the class.
Defendants' argument is not persuasive. Although the Defendants
identify individual issues, these issues are more relevant to the
issue of predominance, pursuant to Rule 23(2)(3) discussed below. In essence, Defendants seek to require
Plaintiffs to demonstrate how they will prove their case against
the Defendants. Such a requirement is not necessary. The central
question of law is whether that letter violated the FDCPA. The
question refers to standardized conduct on the part of the
Defendants toward members of the class, representing a common
nucleus of operative facts that is based on the same legal
theory. Accordingly, Plaintiffs have satisfied both the
commonality and typicality requirements. See Keele v. Wexler,
149 F.3d 589, 594 (7th Cir. 1998) ("Common nuclei of fact are
typically manifest where . . . the defendants have engaged in
standardized conduct towards members of the proposed class by
mailing to them allegedly illegal form letters or documents.");
Clark v. Retrieval Masters Creditors Bureau, Inc.,
185 F.R.D. 247, 248 (N.D.Ill. 1999).
Adequacy of Representation
The class representatives must "fairly and adequately protect
the interests of the class." Fed.R.Civ.P. 23(a). In determining
adequacy of class representation, the court considers whether (1)
any conflicts of interest exist between the named plaintiffs and
the class members and (2) the named plaintiffs' counsel will
adequately protect the interests of the class. Gaspar v.
Linvatec Corp., 167 F.R.D. 51, 58 (N.D.Ill. 1996).
Defendants do not argue that Plaintiffs would not provide
adequate class representation, and the Court cannot identify any
conflicts between Plaintiffs and the class members or an
inadequacy in Plaintiffs' counsel's ability to protect the
interests of the class. Rule 23(b)(3)
Plaintiffs seek class certification under Rule 23(b)(3). Rule
23(b)(3) provides that a class action may be maintained if
"questions of law or fact common to the members of the class
predominate over any questions affecting only individual members,
and that a class action is superior to the available methods for
the fair and efficient adjudication of the controversy."
Defendants argue common issues do not predominate over
questions affecting the over 1,800 potential class members
because each class members' agreement with the third-party
creditor would require examination to ensure the agreement does
not authorize the collection of the subject fee.*fn1 The
Plaintiffs do not attach their own agreements demonstrating the
fee was not authorized nor do they offer any other example.
Instead, the Plaintiffs hypothesize that "it is highly unlikely"
to be included in an agreement. Even accepting the hypothesis as
correct, the Court would still be required to examine 4,900
agreements, for various types of personal, family or household
debt, to determine the presence or absence of authorization for
the fee. "If liability questions are not subject to class-wide
proof and would instead require individual and fact-intensive
determinations, it cannot be said that common issues
predominate." Radmanovich v. Combined Ins. Co. of America,
216 F.R.D 424, 435-436 (N.D. Ill. 2003) (internal quotations omitted)
(denying class certification because individual class member
claims required individual evidence and resolution of individual issues); see also Williams
v. Ford Motor Co., 192 F.R.D. 580, 585 (N.D. Ill. 2000) (denying
class certification because individual issues predominate the
Considering the intensive analysis that would be required for
each individual agreement for every class member, the Plaintiffs
have failed to meet their burden of establishing that common
issues predominate the lawsuit. Accordingly, the requirements of
Rule 23(b)(3) have not been satisfied.
For the foregoing reasons, Plaintiffs' Motion for Class
Certification is denied.
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