The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on plaintiffs' combined motion and memorandum in support of class certification (Doc. 68). Defendants filed a response (Doc. 69) and a supplemental memorandum (Doc. 87). Plaintiffs filed a supplemental brief (Doc. 98) and a reply (Doc. 118) to defendants' response. For the following reasons, the Court denies plaintiffs' motion for class certification.
The claims in this case arise from the same events underlying the claims in Cima v. WellPoint Health Networks, Inc., No. 05-cv-4127, previously before this Court. The Court has recounted the factual and procedural background of this claim in detail on several occasions, see e.g., Cima v. WellPoint Healthcare Networks, Inc., No. 05-cv-4127, 2006 WL 1914107 (S.D. Ill. July 11, 2006); Cima v. WellPoint Health Networks, Inc., 250 F.R.D. 374 (S.D. Ill. 2008); Phillips v. WellPoint, Inc., No. 10-cv-357, Doc. 207 (S.D. Ill. Sept. 27, 2012).
For purposes of this motion for class certification, the relevant facts are as follows. Named plaintiffs and proposed class members in this case were insureds of RightCHOICE Insurance Company and/or its parent corporation RightChoice Managed Care, Inc. ("RightCHOICE" collectively). In 2001, WellPoint, Inc.*fn1 ("WellPoint") acquired RightCHOICE. WellPoint represented to the Illinois Department of Insurance that it had no plans to make material changes to RightCHOICE's business. Plaintiff's contend, however, that this was a misrepresentation made only for the purposes of obtaining regulatory approval and WellPoint intended all along to withdraw RightCHOICE from the Illinois market. Thereafter, RightCHOICE did withdraw from the Illinois market, and RightCHOICE insureds were forced to convert to more expensive polices through Unicare National Services, Inc., Unicare Illinois Services, Inc., and Unicare Health Insurance Company of the Midwest, ("Unicare" collectively) which are subsidiaries of WellPoint. Insureds who could not afford the higher policy rates were forced to go through underwriting leaving many infirm insureds ineligible for insurance or eligible only for higher-priced insurance. Those who were ineligible or could not afford to accept a Unicare policy were forced to seek other coverage or go without health insurance.
Plaintiffs originally brought four claims including two Illinois Health Insurance Portability and Accountability Act ("Illinois HIPAA") claims, one breach of contract claim, and one Illinois Consumer Fraud Act and Uniform Deceptive Trade Practices Act claim. Subsequent to the Court's ruling on defendants' motion to dismiss, the only remaining claims are for breach of contract and unfair practices under the Illinois Consumer Fraud Act. The Court now takes up plaintiffs' motion for class certification.
In Cima v. WellPoint Health Networks, Inc., 250 F.R.D. 374 (S.D. Ill. 2008), this Court denied class certification. The Phillips plaintiffs, however, claim they have addressed the issues that troubled the Court in Cima, and that class certification is now appropriate. The Court has carefully considered the briefing by the parties on the matter of class certification and rules as follows.
a.Phillips Plaintiffs are Not Precluded by the Cima Denial of Class Certification
Defendants first argue this Court need not consider class certification because this Court's denial of the Cima motion for class certification precludes certification of the Phillips proposed class, which is composed of Cima proposed class members. Defendants rely on In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 333 F.3d 763, 767 (7th Cir. 2003), in which the Seventh Circuit found class action certification inappropriate on issue preclusion grounds where proposed members of the first class sought class certification in a subsequent duplicitous class action. Id. Since defendants submitted this argument, the Supreme Court abrogated Bridgestone/Firestone holding that members of a putative class are not parties for the purposes of issue preclusion. Smith v. Bayer Corp., 131 S. Ct. 2368, 2379-80 (2011). Thus, the Phillips plaintiffs cannot be precluded from seeking class certification because this Court denied class certification in Cima. Defendants acknowledge this holding in their supplemental brief (Doc. 87). Defendants contend, however, that certification should still be denied for the same reasons it was denied in Cima. Accordingly, this Court will now turn to analyze whether the Phillips plaintiffs have shown the class certification requirements are satisfied.
b.Plaintiffs Fail to Carry Burden with Respect to Rule 23(a)
The requirements for class certification are set forth in Federal Rule of Civil Procedure 23. The plaintiffs must demonstrate satisfaction of all of the Rule 23(a) requirements: numerosity, commonality, typicality, and adequacy of representation; and at least one of the Rule 23(b) requirements. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997); Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000). "In addition, the class must be sufficiently definite that its members are ascertainable." Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 493 (7th Cir. 2012). A plaintiff "must affirmatively demonstrate his compliance with the Rule -- that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Rule 23 is subject to liberal interpretation, and policy favors the maintenance of class actions. King v. Kansas City S. Indus., Inc., 519 F.2d 20 (7th Cir. 1975). District courts, however, have "broad discretion to determine whether certification of a class-action lawsuit is appropriate." Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001).
As previously stated, Rule 23 implicitly requires that a class be ascertainable. Jamie S., 668 F.3d at 493. The plaintiff must "show that the class is indeed identifiable as a class." Oshana v. Coca-Cola Co, 472 F.3d 506, 513 (7th Cir. 2006) (citing Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981) ("It is axiomatic that for a class action to be certified a 'class' must exist."). The class must be "susceptible to precise definition," and "the class definition must be sufficiently definite so that it is administratively feasible for the Court to determine whether a particular individual is a member of the proposed class." Cima v. WellPoint Health Networks, Inc., 250 F.R.D. 374, 377 (S.D. Ill. 2008) (quoting Clay v. Am. Tobacco Co., 188 F.R.D. 483, 490 (S.D. Ill. 1999)). "For a class to be sufficiently defined, the identity of the class members must be ascertainable by reference to objective criteria." Cima, 250 F.R.D. at 378 (quoting Clay, 188 F.R.D. at 490). "[W]hether the description of a class is sufficiently definite to permit ascertainment of the class members must be determined on a case-by-case basis." Cima, 250 F.R.D. at 278 (quoting Clay, 188 F.R.D. at 490).
In their motion for class certification, plaintiffs define the proposed class as all Illinois persons who were RightChoice individual or group health insurance policyholders at the time of the notice of the conversion scheme, who were rerated, repriced, underwritten with new exclusions, or were converted to the Unicare 1000 policy. Excluding those who have settled claims with WellPoint. Doc. 68, p. 7. In Cima, this Court found this same class was ascertainable, stating
[t]he proposed class consists essentially of persons who were RightCHOICE policyholders at the time notice was given of the alleged conversion scheme. Accordingly, the members of the class are identifiable by reference to objective criteria so that the requirement of an ascertainable class is satisfied.
Cima, 250 F.R.D. at 378. For the same reasons this Court explained in Cima, the Court finds the class in the instant action ascertainable. Accordingly, the Court will now consider whether plaintiffs have carried their burden in establishing the explicit Rule 23 factors.
Under Rule 23(a), plaintiffs must show that "the class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). "A class of more than 40 individuals raises a presumption that joinder is impracticable." Carrier v. JPB Enters., Inc., 206 F.R.D. 332, 334 (D. Me. 2002); see also Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) ("[W]hile there is no fixed numerosity rule, . . . generally less ...