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Larson v. Capital One Auto Finance

March 5, 2007


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


John Larson has sued Capital One Auto Finance, Inc. (Capital One) and Al Piemonte Ford Sales, Inc. (Al Piemonte) under the Fair Credit Reporting Act (FCRA). Larson alleges that Capital One and Al Piemonte accessed his credit report without his consent and without a proper purpose, in violation of the FCRA. Larson has moved pursuant to Federal Rule of Civil Procedure 23(b)(3) to certify a class of similarly situated plaintiffs. Both Al Piemonte and Capital One oppose class certification. For the reasons stated below, the Court grants Larson's motion.


Larson's claims are based on a direct mail solicitation he received from defendants that notified him that he had been pre-approved for automobile financing. The mailer stated that "this 'pre-screened' offer of credit is based on information in your credit report indicating that you meet certain criteria." See Pl. Ex. A at 2. The mailer advised that the recipient was pre- approved for a loan of up to $25,000, so long as he or she was at least eighteen years old, had a monthly income of at least $1,500, and did not have a pending bankruptcy.

The mailer was sent to approximately 9,548 Illinois addressees. Capital One prescreened the credit reports of 8,384 of those addressees. The remaining 1,164 Illinois addressees were not prescreened, and the parties agree that these recipients should be excluded from the purported class. The parties also agree that the four individuals who actually responded to the mailer and received loans from Capital One should be excluded from the purported class.

Larson filed this lawsuit on March 6, 2006, alleging that the defendants willfully violated the FCRA because they accessed his credit report and those of the other addressees without their consent and without complying with the FCRA's "firm offer of credit" exception. See 15 U.S.C. § 1681b(c)(1)(B)(i). Larson has moved for class certification of a class consisting of all persons with Illinois addresses to whom defendants prescreened and sent the solicitation, except for those who obtained credit as a result of responding to the solicitation.


To succeed on a motion for class certification, a plaintiff must satisfy the requirements of Federal Rule of Civil Procedure 23(a) and the requirements of one of the subsections of Rule 23(b). Rule 23(a) requires a class so large "that joinder of all members is impracticable"; the existence of "questions of law or fact common to the class"; claims by the named representative that "are typical . . . of the claims . . . of the class"; and a named representative who "will fairly and adequately protect the interests of the class." FED. R. CIV. P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). Larson seeks certification under Rule 23(b)(3), which requires that common questions "predominate over any question affecting only individual members" and that a class action be "superior to other available methods for the fair and efficient adjudication of the controversy." FED. R. CIV. P. 23(b)(3); see Amchem Prods., 521 U.S. at 615.

1. Rule 23(a) Requirements

Rule 23(a)'s requirements of commonality, typicality, and adequacy of representation often merge and serve as "guideposts for determining whether . . . maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Amchem Prods., 521 U.S. at 626 n.20 (internal quotation and citation omitted). The commonality and typicality requirements are intended to "ensure that only those plaintiffs . . . who can advance the same factual and legal arguments may be grouped together as a class." Mace v. Van Ru Credit Corp., 109 F.3d 338, 241 (7th Cir. 1997).

To determine if class certification is appropriate, the Court undertakes an initial inquiry into whether the named representative's claim and the claims of the proposed class pertain to the same essential situation. 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] claims are based on the same legal theory.'" Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (quoting Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)).

A named plaintiff satisfies the typicality requirement when his claim and those of the class members have a common legal theory, even if some factual variations exist. Oshana, 472 F.3d at 514. Larson's claims against the defendants meet this requirement. Specifically, his claims derive from the same set of facts and proceed on the same legal basis as those of the proposed class: the defendants improperly accessed their credit reports before sending out a mass mailing.

Defendants argue that Larson's claims do not meet the typicality requirement. They rely on the fact that Larson did not read the mailing in its entirety and did not call to learn his pre-approval amount or apply for automobile financing. These arguments miss the point. Both Larson's claims and the proposed class members' claims concern defendants' alleged conduct in accessing the class members' credit reports for the purpose of sending Larson and the class members the mailing. What occurred after the mailer was sent out is not dispositive of whether defendants violated the FCRA. Moreover, because Larson does not seek to represent the class of persons whose credit report was not prescreened for the mailing or the four customers who actually responded to the mailer and received a loan from Capital One, typicality is not an obstacle to class certification.

Larson meets the commonality requirement for similar reasons. Larson's claim and the claims of the class members present the same issues: whether the material in the mailing complies with the FCRA's "firm offer of credit" exception and whether defendants violated the FCRA willfully. See Murray v. GMAC Mortgage Corp., 434 F.3d 948, 955 (7th Cir. 2006). These questions ...

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