Pavone v. Meyerkord & Meyerkord, LLC

321 F.R.D. 314, 2017 WL 2257200
CourtDistrict Court, N.D. Illinois
DecidedMay 22, 2017
DocketCase No. 15 C 1539
StatusPublished
Cited by4 cases

This text of 321 F.R.D. 314 (Pavone v. Meyerkord & Meyerkord, LLC) 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
Pavone v. Meyerkord & Meyerkord, LLC, 321 F.R.D. 314, 2017 WL 2257200 (N.D. Ill. 2017).

Opinion

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, United States District Court Judge

On February 26, 2016, Plaintiff Antonio Pavone filed a Third Amended Class Action Complaint against Defendants Meyerkord & Meyerkord, LLC (“Meyerkord”), LexisNexis Claims Solutions, Inc. (“LN Claims”), and iyeTek, LLC (“iyeTek”)1 for violating the Driver’s Privacy Protection Act, 18 U.S.C. § 2721, et seq. (“DPPA”). Before the Court is Plaintiffs motion to certify two putative classes pursuant to Federal Rule of Civil Procedure 23. For the following reasons, the Court, in its discretion, denies Plaintiffs motion for class certification.

FACTUAL BACKGROUND

Plaintiff, his wife, and them child were involved in an automobile accident with another vehicle on the afternoon of January 15, 2015 in Schaumburg, Illinois. Schaumburg Police Officer Man Takei responded to the accident scene. Plaintiff presented his driver’s license and insurance card to Officer Takei. Plaintiff verbally provided his wife’s and son’s names, dates of birth, address, and telephone numbers to Officer Takei. Officer Takei then created an accident report — as required by Illinois statute 625 ILCS 5/11— 408 — based on this information using iye-Tek’s “iyeCrash” software. Plaintiff refers to this accident report as an “Illinois Traffic Crash Report.” Pursuant to a contractual relationship, the Schaumburg Police Department sent Plaintiffs accident report to iye-Tek, which then made it available on iyeTek’s eCommerce web portal.

On January 16, 2015, Defendant Meyer-kord, a law firm, purchased a copy of Plaintiffs accident report and then sent solicitation parcels to Plaintiff, his wife, and their young son at their home address. Each parcel stated that it was “ADVERTISING MATERIAL,” On February 4, 2015, Plaintiffs counsel notified the Schaumburg Police Department that Plaintiff had received advertising materials from Meyerkord. The following day, the Schaumburg Police Department notified iyeTek of Plaintiffs complaint. Upon being notified, iyeTek conferred with the Schaumburg Police Department and then terminated Meyerkord’s commercial account. After Plaintiff filed the present lawsuit on February 19, 2015 — approximately a month after his car accident — Meyerkord ceased its direct mail marketing campaign.2

Based on these allegations, Plaintiff has proposed the following state-wide class definition for the Meyerkord class in relation to his DPPA claim:

Ml natural persons with an address in the state of Illinois who were the subjects of an Illinois Traffic Crash Report, to whom, within four years prior to the filing of this action and extending through the resolution of this action, Defendant Meyerkord & Meyerkord, LLC sent correspondence marked “ADVERTISING MATERIAL” [318]*318substantially similar in form to the correspondence it sent to Plaintiff Antonio Pa-vone, but the class excludes non-drivers identified on the Illinois Traffic Crash Reports, any officers of Defendants, as well as the lawyers in this case and the judge assigned to this case.

Plaintiff also seeks to certify a nationwide class against LN Claims for selling car accident crash reports to law firms such as Mey-erkord. In the context of his DPPA claim, Plaintiff proposes the following nationwide class:

All persons residing within the United States and its Territories about whom, within four years prior to the filing of this action and extending through the resolution of this action, Defendant Lexis sold a crash report to a law firm within 24 hours of the time the report became available for purchase on Defendant’s e-commence web-portal, but excluded from the class are the subjects of those reports obtained by any law firm using the name and address of the subject or the subject’s accident report number, and also excluded from the class are any officers of Defendants, as well as the lawyers in this case and the judge assigned to this case.

In the present motion, Plaintiff states that he is seeking: (1) an injunction against Mey-erkord, preventing the firm from obtaining any crash report unless it can certify that it represents the accident victim who is the subject of the crash report; (2) an injunction against iyeTek, preventing it from selling any crash report to any law firm unless that firm can certify that it represents the accident victim who is the subject of the crash report or is defending a lawsuit already brought by that car accident victim; (3) compensation in the form of $2,500 in liquidated damages for every class member against every defendant who violated that class member’s DPPA rights; (4) punitive damages; as well as (5) reasonable attorneys’ fees and litigation costs as provided by 18 U.S.C. § 2724.

CLASS CERTIFICATION STANDARD

To obtain class certification under Federal Rule of Civil Procedure 23, a plaintiff must satisfy each requirement of Rule 23(a) — numerosity, commonality, typicality, and adequacy of representation — and one subsection of Rule 23(b). See McCaster v. Darden Rests., Inc., 845 F.3d 794, 800 (7th Cir. 2017); Harper v. Sheriff of Cook Cty., 581 F.3d 511, 513 (7th Cir. 2009). Plaintiff seeks certification under Rule 23(b)(3), which requires that “questions of law or fact common to class members predominate over any questions affecting individual members” and that a “class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3); Bell v. PNC Bank, N.A., 800 F.3d 360, 373 (7th Cir. 2015). In addition, Plaintiff seeks class certification under Rule 23(b)(2), which allows certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Chicago Teachers Union, Local No. 1 v. Bd. of Educ., 797 F.3d 426, 441 (7th Cir. 2015). Plaintiff carries the burden of demonstrating compliance with Rule 23 by a preponderance of the evidence. See Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 859 (7th Cir. 2017); Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 811 (7th Cir. 2012).

The Court has “broad discretion to determine whether certification of a class-action lawsuit is appropriate.” Mulvania, 850 F.3d at 859 (quoting Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001)). Nevertheless, class certification is only appropriate if the Court “ ‘is satisfied, after a rigorous analysis, that the prerequisites’ for class certification have been met.” Bell, 800 F.3d at 373 (quoting CE Design, Ltd. v. King Architectural Metals, Inc.,

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321 F.R.D. 314, 2017 WL 2257200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pavone-v-meyerkord-meyerkord-llc-ilnd-2017.