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Subedi v. Merchant

May 17, 2010

RAMHARI SUBEDI AND ANIRUDRA GAIRE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
LOUISE MERCHANT, INTERNATIONAL H-2B/J-1 WORK & TRAVEL USA, CORPORATION, IWT INTERNATIONAL, INC., AND IWT STAFFING, INC., DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs, Ramhari Subedi and Anirudra Gaire, have filed a motion ("Motion") seeking certification of a class consisting of all persons identified by Plaintiffs who paid a fee to Louise Merchant ("Merchant") and/or International H-2B/J-1 Work & Travel USA, Corporation ("International") for the purpose of obtaining a H-2B or J-1 visa but did not receive a H-2B or J-1 visa procured by Louise Merchant and/or International H-2B/J-1 Work & Travel USA, Corporation. For the following reasons, the Court grants the Motion and certifies the proposed class.

LEGAL STANDARD

To be entitled to class certification, a plaintiff must satisfy each requirement of Rule 23(a) -- numerosity, commonality, typicality, and adequacy of representation -- and one subsection of Rule 23(b). See Harper v. Sheriff of Cook Co., 581 F.3d 511, 513 (7th Cir. 2009); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). "'Failure to meet any of the Rule's requirements precludes class certification.'" Harper, 581 F.3d at 513 (quoting Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008)).

FACTUAL BACKGROUND

Defendants Merchant and International purportedly represented to the proposed class members that, in return for wired payments, they would obtain I-797 certifications, H-2B or J-1 visas, and seasonal employment in the United States. (R. 24-3, R. Subedi Certification at ¶¶ 2-3, 5-6, 11; R. 26-1, T. Lama Certification at ¶¶ 2-3.) At the time they made those representations, however, Defendants Merchant and International allegedly knew and concealed that they did not have the ability or intent to obtain the I-797 certifications, H-2B or J-1 visas, or seasonal employment. (R. 24-3, R. Subedi Certification at ¶ 10.) Based on those representations, Plaintiffs allege, the members of the proposed class paid Defendants Merchant and International thousands of dollars, but Defendants did not provide them with I-797 certifications, H-2B or J-1 visas, or seasonal employment. (Id. at ¶¶ 4, 8, 11; R. 26-1, T. Lama Certification at ¶¶ 4-5.) Defendants IWT International and IWT Staffing are International's successors. (R. 1, Compl. at ¶ 21.)

Plaintiffs filed a six-count class-action complaint on July 28, 2009, alleging breach of contract, breach of fiduciary duty, common law fraud, negligence, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act ("Consumer Fraud Act") and the Racketeer Influenced and Corrupt Organizations ("RICO") Act. (Id. at 14-23.) Because courts cannot enter class default judgments without properly certifying the class, see Davis v. Hutchins, 321 F.3d 641, 648-49 (7th Cir. 2003), Defendants seek certification of the following class, which consists of one hundred sixty-five people: "All persons identified by Plaintiffs who paid a fee to Louise Merchant and/or International H-2B/J-1 Work & Travel USA, Corporation for the purpose of obtaining a H-2B or J-1 visa but did not receive a H-2B or J-1 visa procured by Louise Merchant and/or International H-2B/J-1 Work & Travel USA, Corporation."*fn1 (R. 22, Mot. for Class Certification at 2.)

ANALYSIS

"The class-action device was designed as 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" General Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 2369 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 2557-58 (1979)). It "is an ingenious device for economizing on the expense of litigation and enabling small claims to be litigated. The two points are closely related. If every small claim had to be litigated separately, the vindication of small claims would be rare." Thorogood v. Sears, Roebuck & Co., 547 F.3d 742, 744 (7th Cir. 2008).

"Rule 23 gives the district courts 'broad discretion to determine whether certification of a class-action lawsuit is appropriate,'" Arreola, 546 F.3d at 794 (quoting Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001)); Olson v. Brown, 594 F.3d 577, 584 (7th Cir. 2010), and "provides a one-size-fits-all formula for deciding the class-action question." Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., -- U.S. --, 130 S.Ct. 1431, 1437 (2010). Courts should exercise caution, however, in certifying classes. Thorogood, 547 F.3d at 746. Indeed, "[t]he Supreme Court has made clear that a class 'may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,' and 'actual, not presumed, conformance with Rule 23(a) remains . . . indispensable.'" Hutchins, 321 F.3d at 649 (quoting General Tel., 457 U.S. at 160-61, 102 S.Ct. 2364).

To certify a class, the Court "must find that each requirement of Rule 23(a) (numerosity, commonality, typicality, and adequacy of representation) is satisfied as well as one subsection of Rule 23(b)." Harper, 581 F.3d at 513. "Failure to meet any of the Rule's requirements precludes class certification." Id. (internal quotation omitted). Satisfaction of these requirements, on the other hand, categorically entitles a plaintiff to pursue her claim as a class action. See Shady Grove, 130 S.Ct. at 1437. In deciding whether to certify a class, courts generally may not analyze a class's claims on the merits. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152 (1974); Retired Chicago Police Assoc. v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993). Plaintiffs have met their burden of satisfying the Rule 23(a) and (b)(3) requirements.*fn2

I. Rule 23(a) Requirements

A. Numerosity

Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable." A party seeking class certification "cannot rely on 'mere speculation' or 'conclusory allegations' as to the size of the putative class to prove that joinder is impractical for numerosity purposes." Arreola, 546 F.3d at 797 (quoting Roe v. Town of Highland, 909 F.2d 1097, 1100 n.4 (7th Cir. 1990)). Ordinarily, however, numerosity is "not difficult to ascertain if a class approach would be useful to avoid the practical problems of trying to join many named plaintiffs or otherwise ...


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