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Pavone v. Aegis Lending Corp.

August 31, 2006

JOSEPH PAVONE, PLAINTIFF,
v.
AEGIS LENDING CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge

MEMORANDUM OPINION AND ORDER

In his first amended complaint, Plaintiff Joseph Pavone ("Pavone") alleges that Aegis Lending Corporation ("Aegis") violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., by unlawfully obtaining his consumer report. Presently before us is Pavone's Motion for Class Certification pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3) and his related request that we appoint Edelman, Combs, Latturner and Goodwin, LLC as class counsel. (Mot. at 1.) For the reasons set forth below, we grant Pavone's motion.

BACKGROUND

In August 2005, Pavone received a letter from Aegis, entitled "Official Pre-Qualification Notice" ("Notice"), informing him that he was pre-qualified for a loan of at least $40,000, based on "information in [his] credit report." (Compl. ¶¶ 6-7 & Ex. A.) According to the amended complaint, Aegis engaged in or arranged the "prescreening" of consumers to receive such notices based on information contained in their consumer reports. (Id. ¶¶ 9-10, 18.) Pavone claims that such conduct violated the FCRA, which authorizes use of a consumer's report only with the customer's consent or for certain permissible purposes, such as making a "firm offer of credit." 15 U.S.C. § 1681b(c).

(Compl. ¶¶ 19-28.) He alleges that he did not consent to the disclosure of his consumer report and that the Notice does not constitute a "firm offer of credit." (Compl. ¶¶ 19, 27-28.) Pavone seeks to certify and represent a class consisting of "all persons with either a Cook County or DuPage County, Illinois addresses [sic] who were sent material in the form represented by the solicitation attached [to the motion] as Appendix A [the Notice], on or after September 7, 2003 and on or before September 7, 2005."*fn1 (Mot. at 1.) Among other things, he seeks injunctive relief and statutory damages for himself and the potential class members. (Compl. at 7.)

ANALYSIS

Pursuant to Rule 23(a), a class may be certified "only if (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." Fed. R. Civ. P. 23(a). If the numerosity, commonality, typicality, and adequacy requirements are satisfied, the plaintiff must also demonstrate that the proposed class qualifies under at least one of the three subsections of Rule 23(b). Fed. R. Civ. P. 23(b); Cavin v. Home Loan Ctr., Inc., 236 F.R.D. 387, 391 (N.D. Ill. 2006). Here, Pavone seeks certification under Rule 23(b)(3), which permits class actions where "questions of law or fact common to the members of the class predominate over any questions affecting individual members, and . . . a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3). Pavone bears the burden of showing that the proposed class meets the requirements for certification. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993); Hernandez v. Midland Credit Mgmt., Inc., 236 F.R.D. 406, 410 (N.D. Ill. 2006). In evaluating a motion for class certification, we do not examine the merits of the case. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178, 94 S.Ct. 2140, 2152-2153 (1974); Retired Chicago Police Ass'n, 7 F.3d at 598. We retain broad discretion in determining whether class certification is appropriate given the particular facts of the case. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998); Cavin, 236 F.R.D. at 391; Murray v. New Cingular Wireless Servs., Inc., 232 F.R.D. 295, 298 (N.D. Ill. 2005) (hereinafter New Cingular Wireless Servs., Inc.).

A. Requirements of Rule 23(a)

1. Numerosity

Rule 23(a)(1) provides that class treatment is warranted where the potential class "is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). In his motion, Pavone estimates that Aegis sent approximately 53,000 mailers to residents of DuPage and Cook Counties. (Mot. ¶ 16.) Aegis does not contest Pavone's showing of numerosity. Indeed, Aegis acknowledges that it mailed offers of credit in the form of the Notice to 48,757 individuals in DuPage and Cook Counties. (Corr. Mem. in Opp. to Mot. at 4.) Given the undisputedly large number of potential class members, we conclude that joinder is impracticable. See Cavin, 236 F.R.D. at 391 (finding estimated 49,000 members sufficiently numerous for class treatment).

2. Commonality

"A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2)." Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992); see Hernandez, 236 F.R.D. at 411; Cavin, 236 F.R.D. at 391-392. As several courts have observed, such a nucleus generally exists "where the defendants have engaged in standardized conduct towards the members of the proposed class by mailing to them allegedly illegal form letters or documents." Keele, 149 F.3d at 594; see Cavin, 236 F.R.D. at 392; New Cingular Wireless Servs., Inc., 232 F.R.D. at 299; Murray v. Sunrise Chevrolet, Inc., No. 04 C 7668, 2006 WL 862886, at *2 (N.D. Ill. Mar. 30, 2006) (hereinafter Sunrise Chevrolet, Inc.); Tremble v. Ocean Bank, No. 05 C 2624, slip op. at 2-3 (N.D. Ill. Mar. 21, 2006); Murray v. Cingular Wireless II, LLC, No. 05 C 1334, slip op. at 3 (N.D. Ill. Dec. 22, 2005) (hereinafter Cingular Wireless II, LLC); see also Emerson v. Aegis Lending Corp., No. 05 C 848, slip op. at 3 (E.D. Wis. Aug. 17, 2006) (finding common questions of law or fact where Aegis "accessed consumer information on each individual and sent them identical, or nearly identical, mailings").

Here, Pavone alleges that the common nucleus of operative fact is "that defendant obtained or used (or caused the use) of consumer report information for the purpose of sending plaintiff and the class members the solicitation in the form" of the Notice. (Mem. in Supp. Mot. at 7.) Further, the dispositive legal question is "whether the solicitation complied with the 'firm offer of credit' exception" provided by the FCRA. (Id.) Although there may be factual differences among the class members, the primary issue remains whether Aegis violated the FCRA by accessing and relying on consumer report information in deciding who would receive its standardized mailer. We thus agree with Pavone that the proposed class satisfies the commonality requirement. See Cavin, 236 F.R.D. at 392 (finding commonality among claims based on the mailing of a standardized ...


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