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Pavone v. Meyerkord & Meyerkord, LLC

United States District Court, N.D. Illinois, Eastern Division

May 22, 2017

ANTONIO PAVONE, on behalf of himself and all others similarly situated, Plaintiff,
v.
MEYERKORD & MEYERKORD, LLC, ET AL., Defendants.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE, District Court Judge

         On February 26, 2016, Plaintiff Antonio Pavone filed a Third Amended Class Action Complaint against Defendants Meyerkord & Meyerkord, LLC (“Meyerkord”), LexisNexis Claims Solutions, Inc. (“LN Claims”), and iyeTek, LLC (“iyeTek”)[1] for violating the Driver's Privacy Protection Act, 18 U.S.C. § 2721, et seq. (“DPPA”). Before the Court is Plaintiff's motion to certify two putative classes pursuant to Federal Rule of Civil Procedure 23. For the following reasons, the Court, in its discretion, denies Plaintiff's motion for class certification.

         FACTUAL BACKGROUND

         Plaintiff, his wife, and their child were involved in an automobile accident with another vehicle on the afternoon of January 15, 2015 in Schaumburg, Illinois. Schaumburg Police Officer Alan Takei responded to the accident scene. Plaintiff presented his driver's license and insurance card to Officer Takei. Plaintiff verbally provided his wife's and son's names, dates of birth, address, and telephone numbers to Officer Takei. Officer Takei then created an accident report - as required by Illinois statute 625 ILCS 5/11-408 - based on this information using iyeTek's “iyeCrash” software. Plaintiff refers to this accident report as an “Illinois Traffic Crash Report.” Pursuant to a contractual relationship, the Schaumburg Police Department sent Plaintiff's accident report to iyeTek, which then made it available on iyeTek's eCommerce web portal.

         On January 16, 2015, Defendant Meyerkord, a law firm, purchased a copy of Plaintiff's accident report and then sent solicitation parcels to Plaintiff, his wife, and their young son at their home address. Each parcel stated that it was “ADVERTISING MATERIAL.” On February 4, 2015, Plaintiff's counsel notified the Schaumburg Police Department that Plaintiff had received advertising materials from Meyerkord. The following day, the Schaumburg Police Department notified iyeTek of Plaintiff's complaint. Upon being notified, iyeTek conferred with the Schaumburg Police Department and then terminated Meyerkord's commercial account. After Plaintiff filed the present lawsuit on February 19, 2015 - approximately a month after his car accident - Meyerkord ceased its direct mail marketing campaign.[2]

         Based on these allegations, Plaintiff has proposed the following state-wide class definition for the Meyerkord class in relation to his DPPA claim:

All natural persons with an address in the state of Illinois who were the subjects of an Illinois Traffic Crash Report, to whom, within four years prior to the filing of this action and extending through the resolution of this action, Defendant Meyerkord & Meyerkord, LLC sent correspondence marked “ADVERTISING MATERIAL” substantially similar in form to the correspondence it sent to Plaintiff Antonio Pavone, but the class excludes non-drivers identified on the Illinois Traffic Crash Reports, any officers of Defendants, as well as the lawyers in this case and the judge assigned to this case.

         Plaintiff also seeks to certify a nationwide class against LN Claims for selling car accident crash reports to law firms such as Meyerkord. In the context of his DPPA claim, Plaintiff proposes the following nationwide class:

All persons residing within the United States and its Territories about whom, within four years prior to the filing of this action and extending through the resolution of this action, Defendant Lexis sold a crash report to a law firm within 24 hours of the time the report became available for purchase on Defendant's e-commence web-portal, but excluded from the class are the subjects of those reports obtained by any law firm using the name and address of the subject or the subject's accident report number, and also excluded from the class are any officers of Defendants, as well as the lawyers in this case and the judge assigned to this case.

         In the present motion, Plaintiff states that he is seeking: (1) an injunction against Meyerkord, preventing the firm from obtaining any crash report unless it can certify that it represents the accident victim who is the subject of the crash report; (2) an injunction against iyeTek, preventing it from selling any crash report to any law firm unless that firm can certify that it represents the accident victim who is the subject of the crash report or is defending a lawsuit already brought by that car accident victim; (3) compensation in the form of $2, 500 in liquidated damages for every class member against every defendant who violated that class member's DPPA rights; (4) punitive damages; as well as (5) reasonable attorneys' fees and litigation costs as provided by 18 U.S.C. § 2724.

         CLASS CERTIFICATION STANDARD

         To obtain class certification under Federal Rule of Civil Procedure 23, 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 McCaster v. Darden Rests., Inc., 845 F.3d 794, 800 (7th Cir. 2017); Harper v. Sheriff of Cook Cty., 581 F.3d 511, 513 (7th Cir. 2009). Plaintiff seeks certification under Rule 23(b)(3), which requires that “questions of law or fact common to class members predominate over any questions affecting 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); Bell v. PNC Bank, N.A., 800 F.3d 360, 373 (7th Cir. 2015). In addition, Plaintiff seeks class certification under Rule 23(b)(2), which allows certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Chicago Teachers Union, Local No. 1 v. Bd. of Educ., 797 F.3d 426, 441 (7th Cir. 2015). Plaintiff carries the burden of demonstrating compliance with Rule 23 by a preponderance of the evidence. See Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 859 (7th Cir. 2017); Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 811 (7th Cir. 2012).

         The Court has “broad discretion to determine whether certification of a class-action lawsuit is appropriate.” Mulvania, 850 F.3d at 859 (quoting Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001)). Nevertheless, class certification is only appropriate if the Court “‘is satisfied, after a rigorous analysis, that the prerequisites' for class certification have been met.” Bell, 800 F.3d at 373 (quoting CE Design, Ltd. v. King Architectural Metals, Inc., 637 F.3d 723 (7th Cir. 2011)); see also Blow v. Bijora, Inc., __F.3d__, 2017 WL 1731494, at *9 (7th Cir. May 4, 2017). In conducting the Rule 23 analysis, courts should “not turn the class certification proceedings into a dress rehearsal for the trial on the merits.” Messner, 669 F.3d at 811. Where an issue affects class certification, however, “a court may not simply assume the truth of the matters as asserted by the plaintiff, ” see id., because “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Instead, “[i]f there are material factual disputes that bear on the requirements for class certification, the court must ‘receive evidence if only by affidavit and resolve the disputes before deciding whether to certify the class.'” Bell, 800 F.3d at 377 (emphasis in original) (quoting Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)). Therefore, the class certification inquiry “[f]requently . . . will entail some overlap with the merits of the plaintiff's underlying claim.” Wal-Mart, 564 U.S. at 350-51; see also Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013) (“class determination generally involves considerations that are enmeshed in the factual and legal issues.”) (citation omitted).

         DRIVER'S ...


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