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Acik v. I.C. System

June 11, 2008


The opinion of the court was delivered by: Judge Joan B. Gottschall

Magistrate Judge Arlander Keys


Plaintiff Ahmet Acik ("Acik") has filed a class action on behalf of himself and others similarly situated (the "putative class") against defendant I.C. System, Inc. ("I.C."), alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (the "FDCPA"). Presently before the court is Acik's motion for an order certifying this case as a class action. For the reasons set forth below, Acik's motion for class certification is granted.


In January, 2006, Acik was injured in a work-related vehicle accident and subsequently received medical treatment for his injuries from Chicagoland Plastic Surgery, Ltd. and/or Dr. Rigoberto Mendoza ("Mendoza"). As a consequence of his treatment, Acik incurred an alleged debt of $200. Pro Medical Billing, which provided the billing services for Acik's treatment, turned the debt over to I.C., which in turn contacted Acik via a letter on June 27, 2006, attempting to collect the amount in question. In addition to the $200 allegedly due for medical services, an additional charge of $78.50, designated as "Additional Client Charges," was added to the bill; this latter amount allegedly consists of a $60.00 collection fee and $18.50 in interest. Acik claims that the Additional Client Charge, which is not itemized in the collection letter, together with the failure of the letter to specify that I.C. is attempting to collect a collection fee, specify the amount of interest due on a specific date, or provide other details, including contact information, constitute violations of the FDCPA. Specifically, Acik alleges that the letter demonstrates that it is the standard policy and practice of I.C. to: (1) use false, deceptive, or misleading representations or means in connection with the collection of any debt; (2) falsely represent the character, amount, or legal status of any debt; (3) use unfair or unconscionable means to collect or attempt to collect any debt; (4) collect any amount (including any interest, fee, charge, or expense incidental to the principal obligation) not expressly authorized by the agreement creating the debt or permitted by law; and (5) state falsely the amount of debt in the initial communication. Acik alleges that all of these standard policies and practices are in violation of the FDCPA and has filed a class action in this court. The court now turns to Acik's motion to certify the putative class.


District courts enjoy broad discretion when determining whether the granting of class certification pursuant to Federal Rule of Civil Procedure 23 is appropriate. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998); Murray v. New Cingular Wireless Servs., Inc., 232 F.R.D. 295, 298 (N.D. Ill. 2005). However, a class may be certified pursuant to Rule 23 only if the trial court is satisfied, after a "rigorous analysis," that the prerequisites of Rule 23(a) have been satisfied. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). But whereas it is not true, as Acik contends, that a court faced with a class certification motion "should accept as true all of Plaintiffs' allegations and supporting evidence," Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675, 677 (7th Cir. 2001), neither should a court examining this question make an extensive determination of the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). Rather, courts must walk a fine line, and one not always "easily discernible," between those two extremes - an approach that allows for a "preliminary inquiry" into the merits, but only to the extent needed to deal with Rule 23 considerations. Ret'd Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 599 (7th Cir. 1993).

A plaintiff seeking class certification pursuant to Rule 23 has the burden of proving that: (1) the class is so numerous that joinder of all members is impracticable (Rule 23(a)(1)); (2) there are questions of law or fact common to the class (Rule 23(a)(2)); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (Rule 23(a)(3)); and (4) the representative parties will fairly and adequately protect the interests of the class (Rule 23(a)(4)). Fed. R. Civ. P. 23(a); Matthews v. United Retail, Inc., 248 F.R.D. 210, 213 (N.D. Ill. 2008). Moreover, if all four elements of Rule 23(a) are met, the potential class also must satisfy one of the three provisions of Rule 23(b). Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). Acik contends that the latter requirement is satisfied with respect to Rule 23(b)(3), which requires a finding that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).

Acik argues that the numerosity requirement of Rule 23(a)(1) is satisfied by I.C.'s admission that the debt collection letter forming the basis of his claim was sent to at least 100 individuals. Although there is no "magic number" for numerosity, "permissive joinder is usually deemed impracticable where the class members number 40 or more." Muro v. Target Corp., No. 04 C 6267, 2005 WL 1705828, at *13 (N.D. Ill. July 15, 2005); (quoting Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 307 (N.D. Ill. 1995) (citations omitted)). I.C. does not dispute that the numerosity requirement is fulfilled and the court therefore finds that that requirement is met.

Acik next claims that the commonality requirement of Rule 23(a)(2) (that there are questions of law or fact common to the class) is satisfied. Commonality generally exists when the defendant has engaged in "standardized conduct" towards the members of the proposed class. Smith v. Nike Retail Servs., Inc., 234 F.R.D. 648, 659 (N.D. Ill. Mar. 22, 2006). "A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2). Rosario, 963 F.2d at 1017. However, if resolving the common legal issue depends on factual determinations that would require individualized inquiry for each class member, commonality is not met. Parkis v. Arrow Financial Services, LLS, No. 07 C 410, 2008 WL 94798, at *4 (N.D. Ill. Jan. 08, 2008). Acik argues that the common nucleus of operative fact in this case is that all members of the putative class received the letter at issue and the common question of law for all putative class members is whether that letter, as received, is in violation of the FDCPA.

However, I.C. argues that Acik's primary claim for actual damages relates to his alleged emotional distress stemming from his continuing to be pursued for collection of his debt, despite having informed I.C. that his debt was covered by workers' compensation insurance. I.C. bases this argument on statements made by Acik during his deposition that he suffered emotional distress with respect to this issue both prior to (as a result of phone calls from another entity) and subsequent to the receipt from I.C. of the collection letter in question. Dep. of Acik at pp. 31-35 and 50-55. I.C. argues that Acik's emotional reaction to the letter, for which it claims that Acik is claiming actual damages, is individualized and predominates over any alleged common questions of law or fact. Moreover, contends I.C., such individualized emotional damages cannot likely be typical of, or common to, the other members of the putative class.

Acik retorts that he does not seek damages for his emotional distress. Indeed, after briefly conferring with his lawyer at his deposition, Acik explicitly denied that he sought actual damages for the alleged psychological harm suffered as a result of receiving the collection letter, but rather seeks actual damages for the members of the putative class. Id. at 59-60.

The court has reviewed the deposition transcript carefully, and it does appear that Acik contradicts himself several times with respect to the nature of the damages that he is seeking in this case. Compare id. at 32, with id. at 59. However, it is also evident from the record that Acik, an immigrant from Turkey, has no legal training and, furthermore, possesses a somewhat imperfect command of the English language. Consequently, the court does not expect Acik to have a sophisticated legal understanding of the nature of damages in a class action. Acik's attorneys, however, are highly experienced in class actions and can correctly appreciate the appropriate scope and nature of the damages, as the deposition transcript reveals. Id. at 59. More importantly, Acik's complaint alleges his class claim succinctly; viz., the sending of collection letters attempting to collect a collection fee without specifying the amount of interest due as of a specific date or providing other details, including contact information, in a manner that allegedly violates the FDCPA. Acik was a recipient of such a letter from I.C., as were an admittedly large number (100 ) of other individuals. The claims of the putative class members (including Acik) will center upon whether those letters violate the FDCPA, as determined by the standard of an unsophisticated consumer. That is enough to support both typicality and commonality. Day v. Check Brokerage Corp., 240 F.R.D. 414, 419 (N.D. Ill. 2007).

Acik next argues that he, as named plaintiff, can provide fair and adequate protection of the interests of the putative class in satisfaction of the requirements of Rule 23(a)(3). In determining adequacy of representation, the court looks to two separate elements: (1) the adequacy of the named plaintiff's counsel; and (2) the adequacy of representation provided in protecting the different, separate, and distinct interests of the class members. Ret'd Chicago Police Ass'n, 7 F.3d at 598. Thus, if there are "antagonistic or ...

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