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Miller v. Midland Credit Management

March 2, 2009


The opinion of the court was delivered by: Judge Coar

Magistrate Judge Ashman


Plaintiffs Marcia K. Miller, William Miller, Charlane Yoways-Dawson, and William Anderson ("Plaintiffs") bring this cause of action against Defendants Midland Credit Management, Inc., Midland Funding LLC, and Encore Capital Group, Inc., formerly MCM Capital Group, Inc., alleging a violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Plaintiffs now move for class certification pursuant to Fed. R. Civ. P. 23. For the reasons stated below, Plaintiffs' motion for class certification is GRANTED.


The core of this dispute is simple. Plaintiffs allege that Defendants sent Plaintiffs debt collection letters, each consisting of two forms, including Form MCM-109, a document titled "Privacy Notice." Compl. ¶ 27. The privacy notice stated that Defendants may disclose nonpublic personal information obtained in connection with debt collection activities to "Financial service providers, such as companies engaged in banking, consumer finance, debt purchasing and credit card issuance." Id. at ¶ 32. Plaintiffs allege that the privacy notice violated 15 U.S.C. § 1692c-e because actual disclosure of nonpublic financial information about debtors to credit card issuers, statements that Defendants would make such disclosures, and publication of lists of persons who have allegedly refused to pay debts are illegal under the FDCPA. Id. at ¶ 34-35; Pls.' Renewed Mot. for Class Cert. 3. Defendants dispute that its privacy notice violated those sections of the FDCPA.

Plaintiffs now seek to certify as a class "(a) all natural persons with Cook County addresses (b) to whom any of the defendants sent the MCM-109 "privacy notice," (c) on or after February 2007 (one year prior to the filing of this action), and (d) on or before February 25, 2008 (20 days after the filing of this action)." Pls.' Reply in Support of Their Renewed Mot. for Class Cert. 1. Defendants oppose class certification.


Rule 23 of the Federal Rules of Civil Procedure sets forth the relevant standards for maintaining class action suits in federal court. Under Rule 23(a), a proposed class must satisfy four conditions before a court will grant certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed. R. Civ. P. 23(a). In addition, the Plaintiff must satisfy Rule 23(b), which offers only three potential bases for a valid class action. See Fed.R.Civ.P. 23(b). Plaintiffs seek certification under Rule 23(b)(3), which authorizes class actions where the "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." The burden of proof on a motion for class certification rests with the Plaintiff. See Gen. Tel. Co. v. Falcon, 457 U.S. 147, 162, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).


A. Numerosity

Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable." Although there is no "magic number" of class members for numerosity purposes, case law indicates that when a class numbers at least 40, joinder will be considered impracticable. Swanson v. Am. Consumer Indus., 415 F.2d 1326, 1333 (7th Cir. 1969). The proposed class has 135,571 individuals, and there is no objection by Defendants as to numerosity. Numerosity is satisfied.

B. Commonality

Under Rule 23(a)(2), there must be a question of law or fact common to the class. Rule 23(b)(3), discussed below, more stringently requires that the common questions of law or fact predominate over questions pertaining to individual class members. 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, 2006 WL 715788, at *4 (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 v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992). In the present case, the "common nucleus of operative fact" is the identical privacy notice that Defendants ...

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