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Brown v. SBC Communications

February 4, 2009

CHARLES E. BROWN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SBC COMMUNICATIONS, INC., ENHANCED SERVICES BILLING, INC., BILLING SERVICES GROUP, LLC, ABRY PARTNERS LLC, ILD TELECOMMUNICATIONS, INC., AND ILD TELESERVICES, INC., DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Plaintiff's Motion for Class Certification (Doc. 71). Defendants have responded and Plaintiff has replied. For the following reasons, the Court DENIES the Motion.

BACKGROUND

Plaintiff Charles Brown, a local telephone subscriber of Defendant SBC Communications, Inc., ("SBC") alleges that on at least eleven occasions in 2004 and 2005, he was the victim of "cramming." Brown defines "cramming" as "the placing of unauthorized, misleading or deceptive charges for products or services on customers's local telephone billing statements." Brown originally filed this action in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, on behalf of himself and a proposed class of SBC subscribers who allegedly were subjected to the "cramming" of unauthorized charges onto their monthly billing statements from SBC. The Complaint asserts claims for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 -- 505/12, ("ICFA") and unjust enrichment. The action was removed to this Court pursuant to 28 U.S.C. § 1332, as amended by the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.) ("CAFA"). By order entered September 29, 2006, the Court held that removal of this case was proper pursuant to CAFA and denied remand of the case to state court.

According to Brown, on at least five occasions (February 2004, March 2004, May 2004, June 2004, and July 2004) Brown's monthly billing statement from SBC contained a $14.95 charge for "Traveller Info Svcs #," which Brown alleges is a monthly fee for "technical support services" that he never authorized. Likewise, Brown alleges that on at least six occasions (August 2004, September 2004, October 2004, November 2004, December 2004, and January 2005) he was billed a monthly fee of $14.95, together with taxes and local, state, and federal charges of $1.36, for "Nationwide Voice Msg," a "nationwide voice messaging" service Brown never requested. There is some dispute as to whether Brown in fact ordered the services at issue. SBC is, as discussed, Brown's local telephone service or "local exchange carrier" (LEC). Defendants Enhanced Services Billing, Inc., (ESBI) and ILD Telecommunications, Inc. (ILD) are companies that bill consumers directly or through LECs for services provided by third-party companies in the telecommunications industry. ILD is alleged to be responsible for placing the unauthorized charges for "Nationwide Voice Msg" on Brown's SBC billing statement. Although it is not entirely clear from the allegations of Brown's complaint, presumably Brown believes that ESBI is responsible for placing the unauthorized charges for "Traveller Info Svcs #" on Brown's SBC billing statement. Defendant Billing Services Group, LLC, (BSG) which is also a billing company, is alleged to own ESBI. Defendant Abry Partners, LLC, (Abry) is alleged to own BSG.

Brown alleges that all of the defendants acted jointly to "cram" unauthorized charges onto the SBC billing statements of Brown and the members of the proposed class. Brown proposes the Court certify a class consisting of:

All persons or entities who were residents of Illinois and who were improperly billed for cramming charges by defendants Enhanced Services Billing, Inc. and Billing Services Group, LLC (collectively "ESBI"), defendants ILD Telecommunications, Inc. and ILD Teleservices, Inc. (collectively "ILD") through their billing statements from defendant SBC Communications, Inc. ("SBC") during the period of June 16, 2002 through the present (the "Class Period").

Defendants object that the proposed class cannot be ascertained, Brown's complaint is not typical of the complaints of the proposed class, common questions of law or fact do not predominate over those affecting only individual members, and a class action suit is not the superior means of adjudicating the action because of likely difficulties in managing the action.

ANALYSIS

The Seventh Circuit advises district courts to use caution in deciding whether an action is appropriate for class certification. Thorogood v. Sears, Roebuck and Company, 547 F.3d 742, 746 (7th Cir. 2008). "Before deciding whether to allow a case to proceed as a class action . . . a judge should make whatever factual and legal inquiries are necessary under Rule 23." Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001). In evaluating class certification a court "must take into account 'the substantive elements of plaintiffs' cause of action and inquire into the proof necessary for the various elements and envision 'the form that trial on these issues would take.'" Spicer v. Chicago Bd. Options Exch., Inc., No. 88 C 2139, 1990 WL 16983, at *5 (N.D. Ill. Jan. 31, 1990) (quoting Simer v. Rios, 661 F.2d 655, 672 (7th Cir. 1981)). The plaintiff bears the burden of establishing that class certification is appropriate. Oshana v. Coca-Cola Co., 427 F.3d 506, 513 (7th Cir.2006).

I. Rule 23 Requirements

A party seeking certification of a class under Rule 23 of the Federal Rules of Civil Procedure must demonstrate that the proposed class meets all four requirements of Rule 23(a):

(1) the class is so numerous that joinder of the class members is impracticable ("numerosity");

(2) there are questions of law or fact common to the class ("commonality"); (3) the claims or defenses of the class representatives are typical of the claims or defenses of the class as a whole ("typicality"); and (4) the representatives will fairly and adequately protect the class interests ("adequacy"). See Fed. R. Civ. P. 23(a)(1)-(4); Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978, 985 (7th Cir. 2002). An additional requirement courts have implied in Rule 23(a) is that a proposed class must be reasonably definite and ascertainable. See 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure ยง 1760 (1998 & Supp. 2007) (collecting cases). If a proposed class meets the prerequisites of Rule 23(a), it must then be shown that the class satisfies at least one of the ...


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