Murray v. New Cingular Wireless Services, Inc.

232 F.R.D. 295, 2005 U.S. Dist. LEXIS 29162, 2005 WL 3115813
CourtDistrict Court, N.D. Illinois
DecidedNovember 17, 2005
DocketNo. 04 C 7666
StatusPublished
Cited by34 cases

This text of 232 F.R.D. 295 (Murray v. New Cingular Wireless Services, 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
Murray v. New Cingular Wireless Services, Inc., 232 F.R.D. 295, 2005 U.S. Dist. LEXIS 29162, 2005 WL 3115813 (N.D. Ill. 2005).

Opinion

MEMORANDUM OPINION AND ORDER

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.)

BACKGROUND

Murray alleges that in October 2004, AT & T sent him a promotion2 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.) Sec[298]*298tion 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.

LEGAL STANDARDS

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.

ANALYSIS

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 [299]*299joinder,’ 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. “[Cjlaims 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.

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Cite This Page — Counsel Stack

Bluebook (online)
232 F.R.D. 295, 2005 U.S. Dist. LEXIS 29162, 2005 WL 3115813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murray-v-new-cingular-wireless-services-inc-ilnd-2005.