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Santangelo v. Comcast Corp.

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

December 6, 2017



          John Z. Lee United States District Judge

         Plaintiff Keith Santangelo (“Santangelo”) has filed this suit on behalf of himself and four putative classes, alleging that Defendant Comcast Corporation (“Comcast”) conducted an unauthorized credit check that caused a drop in his credit score, in violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and the Illinois Consumer Fraud Act (“ICFA”), 815 Ill. Comp. Stat. 505/2. Santangelo also has asserted state law claims for breach of contract and unjust enrichment. Comcast has moved to strike Santangelo's class allegations. For the reasons provided herein, the Court grants Comcast's motion insofar as it seeks to require Santangelo to amend his proposed classes to exclude individuals who did not opt out of the arbitration provision contained in Comcast's subscriber agreement.

         I. Background

         Santangelo alleges that, in December 2014, he contacted Comcast via Comcast's online customer service “chat” function in order to establish internet service in his apartment. Am. Compl. ¶ 8, ECF No. 37. During Santangelo's online chat session, Comcast's representative informed Santangelo of the need to run a credit report to establish internet service. Id. ¶ 9. Comcast's representative further informed Santangelo that, in lieu of the credit report, Santangelo could pay a $50.00 deposit. Id. ¶¶ 10-11. Santangelo chose the latter option and paid the $50.00 to obtain internet service. Id. ¶ 12. However, despite Santangelo paying the deposit, Comcast ran a credit report anyway. Id. ¶ 14.[1]

         Comcast's subscriber agreement with Santangelo contained an arbitration provision, set forth in § 13. Def.'s Mot., Ex. C, Subscriber Agreement at 14-16, ECF No. 175-3. Within thirty days of signing up for Comcast's cable service, Santangelo opted out of the arbitration provision, as § 13(c) of the agreement permitted him to do. See Def.'s Mem. Law Supp. Renewed Mot. Partially Strike Pl.'s Class Allegations (“Def.'s Mot.”) at 6-7, ECF No. 175; Def.'s Mot., Ex. B, Santangelo Dep. at 142:20-143:19 (stating that he opted out of the section labeled “Binding Arbitration, ” at the bottom of page 15 of the subscriber agreement), ECF No. 175-2; Pl.'s Resp. at 1-2, ECF No. 187. The arbitration provision requires those subscribers who do not opt out within the thirty-day period to raise any disputes related to the agreement in an arbitration setting, rather than the courts. Section 13(f)(2) of the provision also allows only individual claims and precludes claims that are asserted on a class-wide or collective basis. Subscriber Agreement at 14-16; Def.'s Mot., Ex. D, Salcedo Decl. ¶ 10, 13, ECF No. 175-4. Furthermore, § 13(f)(1) of the arbitration provision requires a subscriber to bring any claim within one year of “the date of occurrence of the event or facts giving rise to a dispute.”[2] Subscriber Agreement at 15.

         In his amended complaint, Santangelo proposes four classes, including an FCRA Class, IFCA Class, Breach of Contract Class, and an Unjust Enrichment Class, each composed of:

All natural persons residing in the United States or its Territories, . . . who were the subject of a consumer report obtained by Comcast during the ordering process, . . . after Comcast collected the credit inquiry deposit from the consumer . . . .[3]

Am. Compl. ¶ 29. Each of Santangelo's proposed classes therefore includes subscribers who are bound by the arbitration provision, including the one-year limitations period, (assuming it is enforceable). See Id. Indeed, the parties do not dispute that only a small percentage of Santangelo's putative class members opted out of Comcast's arbitration provision, Def.'s Mot. at 4; Pl.'s Resp. at 4.

         Comcast has moved to strike Santangelo's class allegations or to require Santangelo to amend the proposed class definitions to exclude subscribers who did not opt out of Comcast's arbitration provision.

         II. Legal Standard

         Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), class certification is permitted only when: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a); see also Messner v. Northshore Univ. Healthsystem, 669 F.3d 802, 811 (7th Cir. 2012).

         In addition, when, as is likely here, [4] class certification is sought pursuant to Rule 23(b)(3), “proponents of the class must also show: (1) that the questions of law or fact common to the members of the proposed class predominate over questions affecting only individual class members; and (2) that a class action is superior to other available methods of resolving the controversy.” Messner, 669 F.3d at 811 (citing Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010)).

         Of course, it is now beyond dispute that “Rule 23 does not set forth a mere pleading standard.” Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014) (internal quotation marks omitted) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Rather, “[p]laintiffs bear the burden of showing that a proposed class satisfies the Rule 23 requirements.” Messner, 669 F.3d at 811. As such, when reviewing whether class certification is appropriate, a court “may not simply assume the truth of the matters as asserted by the plaintiff[s], ” but instead must receive evidence and resolve factual disputes as necessary to decide whether certification is appropriate. Id.(citing Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 676 (7th Cir. 2001)). “[C]ertification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart, 564 U.S. at 350-51 (internal quotation marks omitted).

         As for timing, a court is to determine whether to certify an action as a class action “[a]t an early practicable time.” Fed.R.Civ.P. 23(c)(1)(A). Because the parties often need discovery to develop the factual record from which a court can conduct a rigorous analysis, it is generally more prudent-as a matter of efficient case management-for a court to refrain from conducting this inquiry until the party seeking certification files a class certification motion (with the necessary factual contentions) after some discovery, and the opposing party files a response. It is for this reason that motions to strike class allegations have been ...

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