Cavin v. Home Loan Center, Inc.

236 F.R.D. 387, 2006 U.S. Dist. LEXIS 31308, 2006 WL 1313191
CourtDistrict Court, N.D. Illinois
DecidedMay 10, 2006
DocketNo. 05 C 4987
StatusPublished
Cited by26 cases

This text of 236 F.R.D. 387 (Cavin v. Home Loan Center, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cavin v. Home Loan Center, Inc., 236 F.R.D. 387, 2006 U.S. Dist. LEXIS 31308, 2006 WL 1313191 (N.D. Ill. 2006).

Opinion

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiffs Lawrence and Theresa Cavin sued Defendant Home Loan Center (“HLC”) alleging that HLC accessed their credit reports without their consent and in violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. (R. 1, Compl.) The Cavins currently move for class certification pursuant to Federal Rule of Civil Procedure 23. The Cavins also have filed a motion to compel discovery. (R. 35-1.)1 For the following reasons, the Court grants in part and denies in part the Cavins’ motion for class certification. (R. 21-1.)

RELEVANT FACTS2

The Cavins received three letters from HLC during June and July of 2005, known for the purposes of this action as Exhibits A, B, and C. (R. 1, Compl.1l 6, 7, 9.) Each document included the following statement: “This ‘prescreened’ offer of credit is based on information in your credit report indicating that you meet certain criteria.” (Id., Exs. A-C.) Section 1681b of the FCRA prohibits consumer reporting agencies from furnishing consumer credit information in transactions not initiated by a consume!", except for when the request is in connection with a “firm offer of credit.” 15 U.S.C. § 1681b(e)(l)(B) (2006). The Cavins argue that the disclosure of their credit information incident to the mailing of Exhibits A, B, and C was not a firm offer of credit within the meaning of the FCRA and that HLC is therefore liable for willful violations of the FCRA under Section 1681n. (R. 1, Compl. 1126-30.) The Cavins further claim that Exhibit A violated the disclosure requirements of Section 1681m of the FCRA. (Id. H 30.)

LEGAL STANDARD

The plaintiffs have the burden of proving that class certification is proper. Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir.1984). Under Federal Rule of Civil Procedure 23(a), the plaintiffs must establish four elements:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the [391]*391class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties mil fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a).

Once these prerequisites are satisfied, the plaintiffs must then demonstrate that their proposed class satisfies at least one of the provisions of Rule 23(b). The Cavins are seeking to have their class certified under Rule 23(b)(3). Under Rule 23(b)(3), a plaintiff must show that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” The plaintiffs must also demonstrate that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Id. The Court has broad discretion in determining whether class certification is appropriate. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir.1998).

ANALYSIS

The Cavins’ proposed class would consist of:

(a) all persons with Illinois addresses (b) to whom the defendant sent or caused to be sent material in the form represented by Exhibits A-C (c) on or after a date two years prior to the filing of this action and (d) before 20 days after the filing of this action and (e) who did not obtain credit in response thereto.3

(R. 1, Compl. U 36; R. 54-1, Pis.’ Reply at 2.) The Cavins argue that this class meets all the requirements of Rule 23(a) and b(3), while HLC argues that it fails every single element of both rules. The Court will consider each requirement in turn.

I. Class Certification

A. Rule 23(a) Requirements

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

Federal Rule of Civil Procedure 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” According to HLC, it mailed approximately 49,617 promotions in the form of Exhibits A through C during the relevant period to persons with Illinois addresses. (R. 22-2, Def.’s Resp. to Interrog. H14.) The proposed class is further limited to only those recipients “who did not obtain credit in response” to the promotions. According to the Cavins, between 99.5% and 97.2% of recipients did not respond to the promotions, leaving a minimum of between 48,228 and 49,369 potential class members who did not obtain credit in response to the promotions. (R. 54-1, Pis.’ Reply, at 14-15.) HLC has not offered a competing estimation of the response rate, despite being in a good position to do so as the party controlling this information.

Although there is no bright-line test for numerosity, a class of at least forty members is generally sufficient to satisfy Rule 23(a)(1). See Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th Cir.1969); McCabe v. Crawford & Co., 210 F.R.D. 631, 643 (N.D.Ill.2002). Furthermore, a plaintiff does not have to provide exact numbers because a class action may proceed based upon an estimated class size. McCabe, 210 F.R.D. at 643. The Cavins have estimated their class size at approximately 49,000 members and HLC has not rebutted this estimation. Clearly, joinder of 49,000 persons is impracticable. Therefore, the proposed class is sufficiently numerous to satisfy Rule 23(a)(1).

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

Federal Rule of Civil Procedure 23(a)(2) requires that there be questions of law or fact common to the class. Typically, a common nucleus of operative facts is enough to satisfy this requirement. Rosario v. Li[392]*392vaditis, 963 F.2d 1013, 1017 (7th Cir.1992). Plaintiffs argue that the common nucleus in this case arises out of the common fact that HLC prescreened the credit reports of all of the proposed class members for the purpose of receiving Exhibits A through C, which allegedly do not satisfy the FCRA’s definition of a “firm offer of credit.” (R. 54-1, Pls.’ Reply, at 1.)

A common nucleus is generally found when the defendant has engaged in standardized conduct towards the members of the proposed class. Keele, 149 F.3d at 594; McCabe, 210 F.R.D. at 644.

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Cite This Page — Counsel Stack

Bluebook (online)
236 F.R.D. 387, 2006 U.S. Dist. LEXIS 31308, 2006 WL 1313191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cavin-v-home-loan-center-inc-ilnd-2006.