232 F.R.D. 295 (N.D.Ill. 2005), 04 C 7666, Murray v. New Cingular Wireless Services, Inc.

Docket Nº:04 C 7666.
Citation:232 F.R.D. 295
Opinion Judge:CASTILLO, District Judge.
Party Name:Thomas MURRAY, Plaintiff, v. NEW CINGULAR WIRELESS SERVICES, INC. Defendant.
Attorney:Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin, LLC, Cathleen M. Combs, Edelman, Combs, Latturner & Goodwin, LLC, James O. Latturner, Edelman, Combs, Latturner & Goodwin, LLC, Thomas Everett Soule, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL, for Thomas Murray, Plaintiff. Charle...
Case Date:November 17, 2005
Court:United States District Courts, 7th Circuit, Northern District of Illinois

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232 F.R.D. 295 (N.D.Ill. 2005)

Thomas MURRAY, Plaintiff,



No. 04 C 7666.

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

November 17, 2005

Page 296

[Copyrighted Material Omitted]

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Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin, LLC, Cathleen M. Combs, Edelman, Combs, Latturner & Goodwin, LLC, James O. Latturner, Edelman, Combs, Latturner & Goodwin, LLC, Thomas Everett Soule, Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL, for Thomas Murray, Plaintiff.

Charles H.R. Peters, Schiff Hardin LLP, Kevin S. Hovis, Schiff Hardin LLP, Lisa Ann Brown, Schiff Hardin LLP, Chicago, IL, for AT & T Wireless Services, Inc. doing business as AT & T Wireless, Defendant.


CASTILLO, District Judge.

Plaintiff Thomas Murray (" Murray" ) has sued Defendant New Cingular Wireless Services 1 (" Cingular" ) claiming that Cingular, while doing business as AT & T, unlawfully accessed his credit report prior to sending him a promotion for wireless service. He alleges that AT & T's actions do not constitute a permissible basis to obtain a consumer report and violates the Fair Credit Reporting Act (" FCRA" ), 15 U.S.C. § 1681 et seq. (R. 30, Pl.'s Mot. for Class Cert. at 1.) Murray now seeks to certify a class consisting of all persons with Illinois addresses who received the promotion from AT & T on or after November 24, 2002 and before December 14, 2004. (R. 29-1.) The class would exclude those individuals who received the promotion and signed up for AT & T's wireless service. (R. 43, Pl.'s Reply at 5 n.4.)


Murray alleges that in October 2004, AT & T sent him a promotion 2 containing the following disclosure: " You were selected to receive this special offer because you satisfied certain credit criteria for creditworthiness, which we have previously established. We used information obtained from a consumer-reporting agency.... You have the right to prohibit information contained in your credit files with this and any other consumer-reporting agency from being used with any credit transaction that is not initiated by you ...." ( Id., Ex. A, AT & T Solicitation.)

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Section 1681b of FCRA states that a consumer reporting agency may furnish consumer credit information only in certain situations, such as when the information is used for employment purposes, for the underwriting of insurance, where the consumer has authorized the release of his information, or where the transaction consists of a firm offer of credit or insurance. Murray argues that this promotion does not qualify as a " firm offer of credit" or meet any of FCRA's other permissible bases for accessing a consumer's credit report. ( Id. at 2.) Murray further argues that even if the promotion qualifies as a firm offer of credit, the disclosure of the consumer's privacy rights in fine print on the bottom of the second page of the promotion violates FCRA's requirement that the disclosure be " clear and conspicuous." 3 ( Id. at 3.) Murray seeks statutory damages on behalf of himself and the proposed class under 1681n(a). For the following reasons, we grant Murray's motion for class certification.


A plaintiff seeking class certification has the burden of proving that the proposed class meets the requirements of Rule 23 of the Federal Rules of Civil Procedure. Jackson v. National Action Fin. Servs., Inc., 227 F.R.D. 284, 286 (N.D.Ill.2005). A class may be certified if " (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). Failure to meet any of the requirements of Rule 23(a) precludes class certification. Retired Chic. Police Ass'n v. City of Chic., 7 F.3d 584, 596 (7th Cir.1993). Once these prerequisites are met, the potential class must also satisfy at least one provision of Rule 23(b). Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir.1992). A plaintiff seeking monetary damages, as Murray does here, must demonstrate that " questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3). A court has broad discretion to determine whether the proposed class has met the requirements of Rule 23. Jackson, 227 F.R.D. at 286.


Murray argues that his proposed class meets the requirements of Rule 23(a) and Rule 23(b)(3). Cingular contends that Murray has failed to satisfy his burden because the proposed class does not meet the adequacy, predominance, and superiority requirements of Rule 23. We will consider the class's suitability for certification under each prong of Rule 23.

I. Rule 23(a) Requirements

A. Rule 23(a)(1): Numerosity

Rule 23(a) requires that a proposed class be so numerous that joinder is impractical. " ‘ Where the class is large, the numbers alone are dispositive of the impracticability of

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joinder,’ and the Court need not consider other factors to determine whether the numerosity requirement is met." Wallace v. Chi. Hous. Auth., 224 F.R.D. 420, 427 (N.D.Ill.2004) ( citing Thillens, Inc. v. Cmty. Currency Exch. Ass'n, 97 F.R.D. 668, 677 (N.D.Ill.1983)). Here, AT & T sent over 700,000 solicitations to Illinois residents. The proposed class, as defined, can consist of any or all of these individuals. Murray estimates that the class will contain approximately 733,400 individuals after excluding those individuals who signed up for wireless service. (R. 43, Pl.'s Reply at 5 n.4.) Cingular does not contest numerosity, and given the potential number of claimants, joinder is entirely impractical. Wilson v. Collecto, Inc., 03 C 4673, 2004 WL 432509, *2 (N.D.Ill. Feb.25, 2004). We find that the proposed class meets the numerosity requirement.

B. Rule 23(a)(2): Commonality

A plaintiff must also show that there are questions of fact or law that are common to the class. " A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2)." Rosario, 963 F.2d at 1018. " [C]laims arising out of standard documents present a ‘ classic case for treatment as a class action.’ " Ingram v. Corporate Receivables, Inc., 02 C 6608, 2003 WL 21982152, *3 (N.D.Ill. Aug.19, 2003) ( citing Haroco, Inc. v. Am. Nat'l Bank & Trust Co. of Chic., 121 F.R.D. 664, 668 (N.D.Ill.1988)); Sledge v. Sands, 182 F.R.D. 255, 258 (N.D.Ill.1998). In this case, AT & T sent identical solicitations to each potential class member. The central issue common to all potential classmates is whether AT & T violated FCRA in screening the credit of the individuals who received its solicitation. Accordingly, we find that the proposed class meets Rule 23(a)(2)'s commonality requirement.

C. Rule 23(a)(3): Typicality

Rule 23(a)(3) requires that the claims of the class representative be typical of the claims of the entire class. " A plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory." De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983). Murray's claim arises from the same course of conduct as the claims of other class members-AT & T's inappropriate prescreening of his consumer credit. His claim is also based on the same legal theory as the claims of the other class members-that AT & T's practice of prescreening the credit of recipients of its promotion violates FCRA because the promotion does not contain clear and conspicuous disclosures as required of firm offers of credit nor does it comport with any of the other permissible bases for screening consumer credit under FCRA. Thus, we find that Murray has satisfied the typicality requirement of Rule 23(a)(3).

D. Rule 23(a)(4): Adequacy

To determine if the plaintiff has met the adequacy requirement of Rule 23(a)(4), three factors must be present: " 1) the proposed representative does not have antagonistic or conflicting claims with other members of the class; 2) the proposed representative has sufficient interest in the outcome of the case to ensure vigorous advocacy; and 3) its counsel is competent, qualified, experienced and able to vigorously conduct the litigation." Tatz v. Nanophase Techs. Corp., 01 C 8440, 2003 WL 21372471, *8 (N.D.Ill. June 13, 2003). Murray brings an identical claim on behalf of himself and the putative class members so there is no danger of conflicting claims.

With respect to the second requirement, Cingular argues that Murray lacks the competency and the interest to vigorously pursue this action on behalf of the other class members because of his health problems-specifically, his recurrent memory loss as a result of a stroke. This Court has closely examined Murray's deposition testimony. While there is some evidence of memory loss, it is not nearly as extensive as Cingular presents it to be. For example, when asked about the effects of...

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