Eggen, Bradley et al v. WESTconsin Credit Union
Filing
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ORDER granting 41 Motion to Certify Class under Rule 23; denying without prejudice 48 Motion for Summary Judgment; and appointing Crandall Law Offices, SC and Consumer Justice Center, P.A. as class counsel. Response to proposed class definition is due January 13, 2016. Signed by District Judge Barbara B. Crabb on 12/30/2015. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - BRIAN EGGEN and MARY EGGEN,
on behalf of themselves and all others
similarly situated,
ORDER
Plaintiffs,
14-cv-873-bbc
WESTCONSIN CREDIT UNION,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiffs Brian Eggen and Mary Eggen have filed an unopposed motion for class
certification in this case in which plaintiffs contend that defendant WESTconsin Credit
Union violated the Driver’s Privacy Protection Act (18 U.S.C. §§ 2721-2725) and the
common law of nuisance by disclosing plaintiffs’ unredacted driver’s license numbers in
complaints filed in delinquency actions in small claims court. Plaintiffs seek to represent the
following class: “All individuals whose [driver’s license numbers] Defendant WESTconsin
disclosed in a Wisconsin circuit court filing.” (In their complaint, plaintiffs contend that
defendant violated their rights by disclosing their Social Security numbers as well, but
plaintiffs do not suggest that they want class relief for publication of Social Security
numbers, so I assume that plaintiffs have abandoned that issue with respect to anyone other
than the named plaintiffs.)
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For the reasons discussed below, I am granting plaintiffs’ motion for class
certification. However, I am directing the parties to show cause why the class definition
should not be narrowed with respect to time and the type of lawsuit in which defendant
allegedly disclosed a driver’s license number.
OPINION
Federal Rule of Civil Procedure 23(a) lists four prerequisites to proceeding as a class
action: (1) the number of class members is too numerous to make joinder practical; (2) there
are questions of law or fact common to the class; (3) the claims and defenses of the named
plaintiffs are typical of the rest of the class; and (4) the named plaintiffs and their counsel
can adequately represent the interests of the class. In addition, courts have read in “an
implicit requirement under Rule 23 that a class must be defined clearly and that membership
be defined by objective criteria.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th
Cir. 2015). See also Fed. R. 23(c)(1)(B) (“An order that certifies a class action must define
the class.”). Finally, the plaintiffs must meet the requirements of at least one of the types
of class actions listed in Rule 23(b). In this case, plaintiffs wish to proceed under Fed. R.
Civ. P. 23(b)(3), which requires plaintiffs to show that common questions of law or fact
“predominate” over individual questions and that a class action is “superior” to other
methods of adjudication.
With respect to numerosity, there is a potential problem because plaintiffs do not
identify the number of class members. They say the reason is that defendant “resisted
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identifying the number of files or affected individuals.” Plts.’ Br., dkt. #42, at 11. In lieu
of providing discovery, defendant has “stipulated” that plaintiffs have met the numerosity
requirement. Dkt. #40.
However, I have an independent duty to consider whether the
requirements of Rule 23 have been met. Davis v. Hutchins, 321 F.3d 641, 648 (7th Cir.
2003) (“Allowing certification by default or because the defendant has admitted that the
class exists, with no independent analysis or determination by the district judge,” would
undermine the purpose of Rule 23 of “protecting absent class members whose rights may be
affected by the class certification.”). Thus, the parties should have provided whatever
information they had to the court.
That being said, I conclude that plaintiffs have provided enough facts to allow me to
draw a reasonable inference that they meet Rule 23's numerosity requirement. They allege
that defendant provided small consumer loans to its customers throughout Wisconsin and
that defendant had a consistent practice of including a customer’s driver’s license number
on a complaint any time defendant sued a customer in Wisconsin courts, suggesting that the
number of class members could be too numerous to make joinder practical. However, if the
facts show later that
defendant disclosed the driver’s license numbers of only a few
customers, the class may have to be decertified.
With respect to the remaining requirements, I agree with plaintiffs’ argument and
defendant’s implicit concession that class certification is appropriate in this case. In the
absence of any objection by defendant regarding potential individualized inquiries in
determining liability, it is reasonable to conclude that common questions predominate over
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individualized inquiries because plaintiffs allege that defendant had a common practice of
publishing the driver’s license numbers of anyone it sued for failing to repay a loan. Further,
I have no reason to question the adequacy of class counsel. Particularly because the damages
for individual plaintiffs are likely to be small, a class action seems to be a superior method
of resolving the parties’ dispute. Eubank v. Pella Corp., 753 F.3d 718, 719 (7th Cir. 2014)
(“The [class action] device is especially important when each claim is too small to justify the
expense of a separate suit, so that without a class action there would be no relief, however
meritorious the claims.”). Although it is possible that some class members could have
varying damages (depending on whether someone’s driver’s license number was stolen from
court records and then used for an improper purpose), it is well established that a class may
be certified despite differences in damages among the class members. Messner v. Northshore
University HealthSystem, 669 F.3d 802, 815 (7th Cir. 2012) (collecting cases).
However, I have two concerns about the class definition plaintiffs proposed. First,
plaintiffs put no time limitations on the proposed class, even though I concluded in a
previous order that plaintiffs’ claims under the Driver’s Privacy Protection Act have a fouryear statute of limitations under 28 U.S.C. § 1658 and that the continuing violation
doctrine did not apply to plaintiffs’ claims under the Act. Dkt. #35. In addition, plaintiffs
do not limit their proposed class to individuals sued to recover unpaid loan balances, even
though that is the only type of lawsuit discussed in the complaint and plaintiffs included
such a limitation in their original class definition. Dkt. #1, ¶ 62. Accordingly, I am
directing the parties to show cause why the court should not adopt the following class
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definition: “All individuals whose driver’s license numbers defendant WESTconsin disclosed
on or after December 16, 2010 in an action filed in Wisconsin circuit court to recover
unpaid loan balances.” Once the issue regarding the class definition is resolved, I will direct
the parties to submit a proposed class notice and deadline for opting out of the class.
One final matter requires attention. On December 4, 2015, defendant filed a motion
for summary judgment several months in advance of the deadline for doing so. Dkt. #19
(deadline for dispositive motions set at April 1, 2016). Because defendant’s motion relates
solely to the named plaintiffs’ claims and makes no mention of the class, I am denying the
motion without prejudice to defendant’s refiling it after the class is defined. In light of
defendant’s concession that class certification is appropriate, it makes little sense to resolve
the merits of the named plaintiffs’ claims in isolation.
ORDER
IT IS ORDERED that
1. The unopposed motion for class certification filed by plaintiffs Brian Eggen and
Mary Eggen, dkt. #41, is GRANTED.
2. In accordance with Fed. R. Civ. P. 23(c)(1)(B) and (g), the law firms of Crandall
Law Offices, SC and Consumer Justice Center, P.A. are APPOINTED as class counsel.
3. The parties may have until January 13, 2016, to show cause why the following
class definition should not be adopted: “All individuals whose driver's license numbers
defendant WESTconsin disclosed on or after December 16, 2010 in an action filed in
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Wisconsin circuit court to recover unpaid loan balances.” If the parties do not respond by
January 13, 2016, I will adopt this class definition.
3. Defendant WESTconsin Credit Union’s motion for summary judgment, dkt. #48,
is DENIED WITHOUT PREJUDICE to their refiling it to account for other members of the
class after the court adopts a class definition.
Entered this 30th day of December, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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