Murray v. ETrade Financial Corp.

240 F.R.D. 392, 2006 U.S. Dist. LEXIS 84087, 2006 WL 3354039
CourtDistrict Court, N.D. Illinois
DecidedNovember 20, 2006
DocketNo. 05 C 5433
StatusPublished
Cited by20 cases

This text of 240 F.R.D. 392 (Murray v. ETrade Financial Corp.) 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
Murray v. ETrade Financial Corp., 240 F.R.D. 392, 2006 U.S. Dist. LEXIS 84087, 2006 WL 3354039 (N.D. Ill. 2006).

Opinion

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiff Scott A. Murray sued defendants E*Trade Financial Corporation and E*Trade Bank (collectively, “E*Trade”) for accessing his consumer report in violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. (2000). (R. 29, Am. Compl.1l 1.)1 Murray now moves for class certification pursuant to Federal Rule of Civil Procedure 23. For the reasons set forth below, the Court grants Murray’s motion for class certification.

BACKGROUND

Murray alleges that in 2005 he received a document in the mail from E*Trade (hereinafter, “the mailer”). (Id. HIT 7,16; R. 33, Answer K16.) The mailer stated, “You’re preapproved for a home equity rate starting at a low 1.99% intro APR for the first 90 days. And continuing after that with a variable rate as low as Prime (currently 5.75% APR).” (R. 29, Am. Compl., Ex. A. (footnote omitted).) A footnote after the words “You’re preapproved” directed the reader to a disclosure stating that “[information from a consumer credit report was used in connection with this offer. You have received this offer because you satisfied the creditworthiness used to select offer recipients.” (Id.) Based on the text of the mailer, Murray alleges that E*Trade’s use of his consumer report to send the mailer violated the FCRA because E*Trade did not have a permissible purpose for accessing his consumer report. (Id. 11H 30, 32.) It is permissible under the FCRA to access a consumer report in order to extend a “firm offer of credit.” 15 U.S.C. § 1681b(c)(l)(B)(i). However, Murray alleges that the mailer is not a “firm offer of credit” because it merely solicits business, which he asserts is not a permissible purpose for accessing a consumer report under the FCRA. (Id. 1130.) Murray further alleges that the violation was willful. (Id. 1133.)

On July 19, 2006, Judge Plunkett granted in part E*Trade’s motion for judgment on the pleadings pursuant to Rule 12(c). The court found Murray had sufficiently alleged a willful violation of the FCRA and therefore denied E*Trade’s motion to dismiss that claim. Murray v. E*Trade Fin. Corp., No. 05 C 5433, 2006 WL 2054381, at *3, 2006 U.S. Dist. LEXIS 53945, at *10 (N.D.Ill. July 19, 2006). The court also denied without prejudice E*Trade’s motion to preclude injunctive relief, finding that the propriety of an injunction should be considered after the resolution of the merits of Murray’s claim. Id. at 2006 WL 2054381, at *4, 2006 U.S. Dist. LEXIS [395]*39553945, at *13-14. However, the court granted E*Trade’s motion for judgment on the pleadings with regard to Murray’s allegations that E*Trade violated the FCRA’s disclosure requirements because no private right of action exists for such violations under 15 U.S.C. § 1681m(d). Id. at 2006 WL 2054381, at *4, 2006 U.S. Dist. LEXIS 53945, at *11. The court struck Murray’s allegations concerning this alleged violation from the complaint. Id.

The case was reassigned from Judge Plunkett to this Court by the Executive Committee on August 3, 2006. Murray moved for class certification on September 20, 2006. (R. 59, Mot. to Certify Class.) He requests that the Court certify the following class:

(a) all persons with an address in Illinois (b) to whom [E*Trade] sent or caused to be sent material in the form represented in [the mailer] (c) on or after September 21, 2003 and before October 11, 2006 and (d) who did not obtain credit in response to the material. A response to [the mailer] is not a prerequisite for class membership.

(Id.) Murray further requests that the Court appoint him as class representative and the law firm of Edelman, Combs, Latturner & Goodwin, LLC (“Edelman & Combs”) as class counsel. (Id.)

MOTION FOR CLASS CERTIFICATION

I. Legal Standard

Class certification is proper when the proposed class meets all the prerequisites of Federal Rule of Civil Procedure 23(a) and one of the requirements of Rule 23(b)(3). Payton v. County of Kane, 308 F.3d 673, 680 (7th Cir.2002). Rule 23(a) contains four prerequisites for class certification: (1) the class must be so numerous that joinder of all members is impractical; (2) there must be questions of law and fact common to the class; (3) the class representative’s claims and defenses must be typical of the class; and (4) the representative parties must fairly and adequately protect the class’s interests. Fed.R.Civ.P. 23(a); Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir.2000). These prerequisites are commonly referred to as numerosity, commonality, typicality, and adequacy, respectively. In addition to the four Rule 23(a) prerequisites, a proposed class must meet one of the three requirements of Rule 23(b). This case falls under Rule 23(b)(3), which allows class certification when the common questions of law and fact among the class members predominate over issues affecting individual members, and a class action is superior to other available methods of litigation. Fed.R.Civ.P. 23(b); Williams, 204 F.3d at 761. A plaintiff seeking class certification bears the burden of demonstrating that the requirements of Rule 23 are met. Murray v. New Cingular Wireless Servs., 232 F.R.D. 295, 299 (N.D.Ill. 2005).

The Court has broad discretion to determine whether a proposed class meets the Rule 23 certification requirements. See Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978, 985 (7th Cir.2002). In making this determination, Rule 23(a) should be liberally construed to support its policy of favoring the maintenance of class actions. King v. Kansas City S. Indus., Inc., 519 F.2d 20, 25-26 (7th Cir.1975). After certifying a class, the Court retains broad power to modify the definition of the class if it believes that the class definition is inadequate. BuycksRoberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 322, 328-29 (N.D.Ill.1995).

II. Analysis

Murray argues that the proposed class meets each of the four Rule 23(a) prerequisites and requests that the Court grant certification pursuant to Rule 23(b)(3). (R. 61, Pl.’s Mem. at 5-11) Although E*Trade refutes only the adequacy of Murray as class representative, the Court must consider whether Murray meets each requirement. Valley Drug Co. v. Geneva Pharms., Inc.,

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Cite This Page — Counsel Stack

Bluebook (online)
240 F.R.D. 392, 2006 U.S. Dist. LEXIS 84087, 2006 WL 3354039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murray-v-etrade-financial-corp-ilnd-2006.