Opinion
CIVIL ACTION NO. 99-3804, SECTION: "N"
August 6, 2002
MEMORANDUM OPINION AND ORDER ON RENEWED MOTION FOR CLASS CERTIFICATION
On remand before the Court is putative class representative Kristen K. White's ("White") renewed motion seeking certification pursuant to Fed.R.Civ.P. 23(c)(1) of an expanded class and a subclass described below serially as follows:
All persons who are residents of the United States whose consumer reports (also called "credit reports") were furnished by computer transmission from the database of Equifax Credit Information Services, Inc., in connection with insurance claims, and for a purpose other than underwriting, prescreening or target marketing from December 20, 1997 to present, without Equifax Credit Information Services first obtaining the written authorization of the consumer.
Specifically excluded from the class are the judges to whom this case is assigned and members of their immediate families. Also excluded are the officers, directors, employees, attorneys and shareholders of Equifax, Inc., Equifax Credit Information Services, Inc., ChoicePoint, Inc., Imperial Fire and Casualty Company, and Imperial Adjustment Corporation. Also excluded are persons whose consumer reports were furnished only after the insurance company or its representative, which received the credit report, had previously obtained a judgment against the consumer whose credit report was furnished.
The sub-class plaintiff now seeks to certify is described as:
All persons whose consumer reports (also called "credit reports") were provided by computer transmission from the database of Equifax Credit Information Services, Inc. ("Equifax") to Imperial Adjustment Corporation or Imperial Fire and Casualty Company for a purpose other than underwriting, prescreening, or target marketing, from December 20, 1997 to the present.
Specifically excluded from the class are the judges to whom this case is assigned and members of their immediate families. Also excluded are the officers, directors, employees, attorneys and shareholders of Equifax, Inc., Equifax Credit Information Services, Inc., ChoicePoint, Inc., Imperial Fire and Casualty Company, and Imperial Adjustment Corporation. Also excluded are persons whose consumer reports were furnished only after the insurance company or its representative, which received the credit report, had previously obtained a judgment against the consumer whose credit report was furnished.
See Plaintiffs Memorandum in Support of Renewed Motion for Class Certification, at pp. 2-3.
See Plaintiff's Memorandum in Support of Renewed Motion for Class Certification, at p. 3.
Defendants Imperial Fire Casualty Company and Imperial Adjustment Corporation (hereinafter referred to collectively as "Imperial") filed formal opposition to the Renewed Motion for Class Certification. Imperial's contention is that, even under the re-defined subclass, an indepth individualized review of each claim file is required to determine eligibility and liability, the same core question for both class membership and liability ( i.e., whether Imperial had a permissible purpose when it obtained credit reports on sub-class members), and thus certification of a re-defined subclass is inappropriate and not warranted under existing case law. Imperial also urges the Court to reconsider Judge Barbier's October 26, 2000 ruling, which ruling struck Imperial's affirmative defenses and counter-claim against Ms. White. In summary, Imperial urges the Court to make the following conclusions: (1) commonality and typicality are lacking because liability can only be established through culling through each individual Imperial claims file and require a mini-hearing on each particular case; (2) many, if not most, of the reports it accessed from Equifax were obtained for permissible purposes such as collection of a debt, judgment or note; (3) the many obstacles to Rule 23(b)(3) class certification posed by FCRA and recognized by the Fifth Circuit in Washington v. CSC, 199 F.3d 263 (5th Cir. 2000) are extant in this case ( i.e., individual issues of whether reports were "improperly disclosed" would predominate); and (4) Judge Barbier clearly erred by striking Imperial's set-off defense and dismissing its subrogation counterclaim.
Equifax Inc. and Equifax Credit Information Services (hereinafter collectively referred to as "Equifax") also filed formal opposition, urging the Court to disallow relitigation of the issue of the much larger class, involving individuals' credit reports provided by Equifax to an insurance entity for claims investigation, including those provided by Equifax to insurance entities through an intermediary company such as ChoicePoint. In this vein, Equifax notes that on May 16, 2001, Judge Barbier denied certification regarding a substantially similar larger class (based on credit reports provided by Equifax to insurance entities through ChoicePoint), and plaintiff White did not appeal that ruling. Equifax submits that the plaintiffs renewed motion as to the larger "ChoicePoint" class is, in truth and in fact, a Motion for Reconsideration, absent the requisite predicate for seeking such relief, to wit: (1) an intervening change in the law; (2) new evidence; and/or (3) a need to correct clear or manifest error. Additionally, Equifax echos the argument of Imperial that actions under FCRA are so fact-intensive that, regardless of the narrower definition of the subclass plaintiff now seeks to certify, the requisite elements for class certification are not met.
Via formal reply, plaintiff suggests that it is appropriate for this Court to reopen the issue of the expanded class arguing that: "The Fifth Circuit vacated, in its entirety, Judge Barbier's class certification order — the part certifying the small class and the part declining to certify the larger class." Additionally, plaintiff cites the Fifth Circuit's decision in Forbush v. J.C. Penney' Co., Inc., 994 F.2d 1101 (5th Cir. 1993), rejecting an argument similar to the one defendants make in the instant case regarding the circularity of plaintiffs more specific class definition. White points out that Forbush determined that the common issue was whether Penney's alleged overestimation of Social Security benefits violated ERISA's nonforfeiture provisions, and that was despite the fact that four different pension plans were involved.
Plaintiff's Reply in Support of Renewed Motion for Class Certification, at p. 2.
Having considered the putative class action plaintiffs complaint, the Fifth Circuit's decree vacating Judge Barbier's order granting certification on the "Imperial class", the renewed motion for class certification, the submissions of the parties, the renewed arguments of counsel, the record and the applicable law, the Court is of the opinion that the requirements for class certification under Federal Rule of Civil Procedure 23(a) and (b)(3) are met, but only with respect to an "Imperial class" as more specifically described below. On remand, this Court will not revisit the issue of the expanded class previously denied by Judge Barbier, which ruling the plaintiff failed to cross-appeal. For the following reasons, the putative class plaintiffs motion for certification is GRANTED but as to the class described as below, to wit:
See White v. Imperial Adjustment Corporation, et al, 5th Cir. Court of Appeal, Docket No. 01-30740, filed July 10, 2002 (specifically stating that the appeal concerned the "certification of a class under Rule 23 F.R.C.P.," as opposed to a ruling denying class certification and/or an order both denying class certification on one hand but granting certification with respect to a smaller class).
All persons whose consumer reports (also called "credit reports") were provided during the time frame of from December 20, 1997 to the present by computer transmission from the database of Equifax Credit information Services, Inc. ("Equifax") to Imperial Adjustment Corporation or Imperial Fire and Casualty Company for the purpose of locating each such person or in connection with the investigation of a subrogated claim, without having first obtained the written permission of such consumer.
Specifically excluded from the class are the judges to whom this case is assigned and members of their immediate families. Also excluded are the officers, directors, employees, attorneys and shareholders of Equifax, Inc., Equifax Credit Information Services, Inc., Imperial Fire and Casualty Company, and Imperial Adjustment Corporation. Also excluded are persons whose consumer reports were furnished only after the insurance company or its representative, which received the credit report, had previously obtained a signed promissory note and/or a judgment against the consumer whose credit report was furnished.
I. BACKGROUND
Plaintiff White was involved in an automobile accident with James and Rena Walker ("the Walkers"), who both sustained personal injuries and property damages. The Walkers filed a UM claim with their insurer, Imperial Fire and Casualty Company. Imperial Adjustment Corporation, acting on Imperial Fire and Casualty Company's behalf, had difficulty locating the alleged offending tort feasor White. The Imperial defendants allegedly accessed and/or were furnished White's full credit report including account information six times without her written consent. The Imperial defendants submit that efforts to serve White at the address reflected on the credit report repeatedly failed. On July 16, 1999, White was finally located and served with a state court petition. White then filed the instant lawsuit claiming that the defendants improperly obtained her credit reports without first obtaining her written consent.Plaintiff contends that instead of obtaining the written consent of the consumer by facsimile or other means, Equifax unreasonably relied on initial subscriber agreements, whereby the subscribers to its service agree simply agree that they will obtain credit reports only for permissible purposes. Plaintiff contends that Equifax has more than ninety thousand subscribers, and all have unrestricted access to the Equifax database which is composed of more than 160 million credit reports. Plaintiff challenges the manner in which imperial repeatedly obtained unrestricted access to credit reports, and contends that such demonstrates that Equifax's procedures are unreasonable and in violation of § 1681e(a) of the FCRA.
As to the expanded or larger proposed class, White levels her aim at Equifax's practices of utilizing resellers, including intermediary entities, such as the independent publicly-traded company ChoicePoint, which intermediary resellers are unrelated to any insurance company and not a party to the instant lawsuit. Plaintiff claims that such intermediaries, including ChoicePoint, inter alia, cull through the data contained in Equifax credit reports, and then sort and resell the information for a multiple of uses. As to this larger class, the putative class representative submits that there has been no consent by any consumer upon which Equifax may furnish such consumers' credit information. Judge Barbier previously denied plaintiffs Motion to Certify the larger class, and the plaintiff did not appeal that ruling.
As to the proposed subclass ( i.e., the Imperial class), White submits that Imperial obtained approximately several hundred credit reports with respect to other class members directly from Equifax in precisely the same manner as Imperial obtained White's credit report six times. It is not disputed that in order to begin receiving credit reports from Equifax, Imperial executed contracts in which it certified that it would only obtain credit reports when it had a permissible purpose to do so under the FCRA. Having never received any prior complaint about Imperial, Equifax admits that in reliance on the aforesaid certification, it provided Imperial with 313 credit reports during the applicable time frame. Those reports relate to approximately 186 individual consumers. Imperial submits that it obtained these reports for a variety of purposes, some with and some without judgments, and some with and some without a promissory note. As previously mentioned, both Equifax and Imperial contend that even the redefined narrower subclass must fail, because individual review of each and every claim is necessary to sufficiently identify the class members.
See Equifax Defendants' Brief in Opposition to Plaintiff's Renewed Motion for Class Certification, at p. 2 (referring the to Defendants' May 9, 2200 Brief in Opposition to Class Certification [Rec. Doc. #18, at pp. 5-8]).
Id.
II. CLASS CERTIFICATION STANDARDS
Rule 23 of the Federal Rules of Civil Procedure governs class actions. The rule requires that the court determine, "as soon as practicable" after an action brought on behalf of a class is commenced, whether the suit meets the class certification requirements such that the case should proceed as a class. A class action is not maintainable as such simply because the lawsuit designates the cause as a class action. It is not disputed that the class action proposed in this case must satisfy the requirements for certification outlined in Rule 23(a) and (b).
See Fed.R.Civ.P. 23(c)(1); Castano v. American Tobacco Company, 84 F.3d 734, 741 (5th Cir. 1996).
In ruling upon a motion for class certification, courts treat the substantive allegations contained in the plaintiffs' complaint as true. The issue is not whether the plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met. The court may look past the pleadings to the record and any other completed discovery to make a determination as to the class certification issue.
Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2153 (1974); see also Burrell v. Crown Central Peroleum, Inc., 197 F.R.D. 284, 286 (E.D. Tex. 2000); and In re Lease Oil Antitrust Litigation, 186 F.R.D. 403, 418 (S.D. Tex. 1999).
See General Telephone Company v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2371-72 (1982) (noting the district court's duty to conduct a "rigorous analysis" before granting class certification and holding that a decision on class certification remains a fact specific determination); Spence v. Glock, 227 F.3d 308, 310 (5th Cir. 2000); and Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996).
At the outset, Rule 23(a) sets forth four threshold requirements which must be met in every type of "class action case." Rule 23(a) requires that a class: (1) be so numerous that joinder of all members is impractical [numerosity]; (2) have common questions of fact or law [commonality]; (3) have representative parties with typical claims or defenses [typicality]; and (4) have representative parties that will fairly and adequately protect the interests of the proposed class [adequacy]. The first two requirements focus on the characteristics of the class; the second two focus instead on the desired characteristics of the class representatives. The rule is designed "to assure that courts will identify the common interests of class members and evaluate the named plaintiffs' and counsel's ability to fairly and adequately protect class interests."
See James v. City of Dallas, 254 F.3d 551, 569 (5th Cir. 2001), cert. denied, 122 S.Ct. 919, 151 L.Ed.2d 884 (2002).
See Fed.R.Civ.P. 23(a); Spence v. Glock, 227 F.3d at 310 n. 4; James v. City of Dallas, 254 F.3d at 569.
Un re Lease Oil Antitrust Litigation, 186 F.R.D. at 419 (citing In re General Motors Corp. Pick-Up Truck Fuel Tank Litigation, 55 F.3d 768, 799 (3rd Cir. 1995)).
If the Rule 23(a) criteria are satisfied, the plaintiffs must show that class treatment is appropriate under one of three alternative class categories prescribed by Rule 23(b). Plaintiffs claim only monetary damages, and explicitly seek certification solely pursuant to Rule 23(b)(3), which sets out two requirements — predominance and superiority. See Fed.R.Civ.P. 23(b)(3). Subsection (b) provides that:
See Fed.R.Civ.P. 23(b); James v. City of Dallas, 254 F.3d at 568.
(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(3) the court finds that the 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. The matters pertinent to the findings include: (A) the interest of the members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(b)(3) (emphasis supplied).
To pass muster under Rule 23(b)(3), plaintiff must sufficiently demonstrate both predominance of common class issues and that the class action mechanism is the superior method of adjudicating the case. Together, the subsection (a) and (b) requirements insure that a proposed class has "sufficient unity so that absent class members can fairly be bound by decisions of the class representatives."
See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 623-24 (5th Cir. 1999) (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997)), cert. denied, 528 U.S. 1159, 120 S.Ct. 1169, 145 L.Ed.2d 1078 (2000).
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 2246 (1997).
In Allison v. Citgo Petroleum, the Fifth Circuit explained the different categories of class actions detailed in Rule 23(b), as follows:
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998).
Under Rule 23, the different categories of class actions, with their different requirements, represent a balance struck in each case between the need and efficiency of a class action and the interests of class members to pursue their claims separately or not at all. The different types of class actions are categorized according to the nature or effect of the relief being sought. The (b)(1) class action encompasses cases in which the defendant is obliged to treat class members alike or where class members are making claims against a fund insufficient to satisfy all claims. The (b)(2) class action, on the other hand, was intended to focus on cases where broad, class-wide injunctive or declaratory relief is necessary. Finally, the (b)(3) class action was intended to dispose of all other cases in which a class action would be `convenient and desirable,' including those involving large-scale, complex litigation for money damages. Limiting the different categories of class actions to specific kinds of relief clearly reflects a concern for how the interests of the class member will vary, depending on the nature of the class injury alleged and the nature of the relief sought.
Id. at 411-12.
A class seeking substantial money damages will more likely consist of members with divergent interests. Recognizing that monetary damages are more often related directly to the disparate merits of individual claims, the drafters of the rule saw fit to provide prospective (b)(3) class members the absolute right to notice, to opt out and not be bound by membership in a class. Rule 23(b)(3) applies to cases for which a class action would achieve economies of time, effort. and expense, promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Whether common issues predominate and the class action is superior requires an understanding of the relevant claims, defenses, facts, and substantive law presented in the case.
Id. at 412.
Id.
See Amchem, 521 U.S. at 615, 117 S.Ct. at 2246.
See Berger v. Compaq Computer Corporation, 257 F.3d 475, 483 (5th Cir. 2001 )("`[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.'" Castano, 84 F.3d at 744.).
In the case at bar the plaintiff bears the burden of proving that; (1) the proposed class satisfies all of the elements of Rule 23(a); and (2) the proposed class also satisfies both requirements of Rule 23(b)(3). Within the confines of Rule 23. a district court maintains substantial discretion in determining whether to certify a class. However, in the absence of proof of all required elements, the court may not certify a class. The Court addresses the plaintiffs' proof as to requisite elements of a Rule 23(b)(3) class action serially herein.
See Spence v. Glock, 227 F.3d at 310; Berger, 257 F.3d at 479-80; Mullen, 186 F.3d at 623; and Castano, 84 F.3d at 743-44 (holding that a court cannot rely on assurances of counsel that any problem with predominance or superiority can be overcome).
See Berger, 257 F.3d at 479-80.
III. SUBSTANTIVE LAW
Enacted in 1970, the Fair Credit Reporting Act (FCRA) governs "consumer reporting agencies," like Equifax, which maintain credit information on consumers and provide it to third parties. See 15 U.S.C. § 1681 (stating the purpose of FCRA); id. § 1681a(f) (defining "consumer reporting agencies"). A central purpose of the Act is to ensure the "confidentiality, accuracy, relevancy, and proper utilization of [consumers' credit] information." Id. § 1681(b). The Act seeks to accomplish its goals by requiring credit reporting agencies to maintain reasonable procedures designed to assure maximum possible accuracy of the information contained in the reports and to limit furnishing such credit reports to certain statutorily enumerated purposes. TRW, Inc. v. Andrews, 534 U.S. 19, 122 S.Ct. 441, 444 (2001). Under the 1996 amendments to § 1681n. a plaintiff may recover statutory damages for willful violations, § 1681n(a)(1)(A), or in the alternative, actual damages, as well as punitive damages. Even with no actual damages, courts have allowed recovery for humiliation and mental distress and for injury to one's reputation and creditworthiness. See Sapia v. Regency Motors of Metairie, Inc., 276 F.3d 747, 753 (5th Cir. 2002) (citing Fischl v. General Motors Acceptance Corporation, 708 F.2d 143, 151 (5th Cir. 1983)).
To collect punitive damages under FCRA, the plaintiff must show that the defendants willfully failed to comply with one of the Act's requirements. FCRA provides that "[a]ny person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of . . . such amount of punitive damages as the court may allow." 15 U.S.C. § 1681n. For a violation to be "willful," thereby justifying an award of punitive damages, a defendant's course of conduct must exhibit "conscious disregard" for or entail "deliberate and purposeful" actions taken against a plaintiffs rights. See Sapia, 276 F.3d at 753 (citing Cousin v. Trans Union Corporation, 246 F.3d 359. 372 (5th Cir. 2001)).
See also Cushman v. Trans Union Corp., 115 F.3d 220, 227 (3rd Cir. 1997) (holding that a FCRA plaintiff could be awarded punitive damages pursuant to § 168 in if she could prove that the defendant adopted its reinvestigation policy either knowing that the policy was in contravention of the rights possessed by consumers pursuant to FCRA or in reckless disregard of whether the policy contravened those rights); and Mathews v. Government Employees Insurance Co. (GEICO), 23 F. Supp.2d 1160, 1164 (S.D. Ca. 1998) (finding as a compelling standard of law that individuals who recklessly disregard any of their important responsibilities under the FCRA may be liable for punitive damages pursuant to Section 1681n, noting that Congress did not intend to enable mass-users of credit reports to evade meaningful liability for repeated violations of their "grave responsibilities" under FCRA by sticking their head in the sand, and observing that FCRA's use of the phrase "grave responsibilities" attaches equal importance to the responsibilities of consumer reporting agencies and to users of the credit reports).
The Fair Credit Reporting Act, in particular § 1681b(a), provides an exclusive list of permissible purposes for which credit reports may be furnished, stating that credit reports may be furnished "under the following circumstances and no other." 15 U.S.C. § 1681b(a) (emphasis supplied). The list does not include insurance claims investigation, litigation, subrogation, locating people in connection with insurance claims/litigation/subrogation, or locating people for any other reason. The Federal Trade Commission ("FTC") commentary regarding FCRA instructs that, because litigation is not a "business transaction" involving the consumer, potential plaintiffs may not always obtain reports on potential defendants to determine whether they are worth suing. The commentary explains that a party seeking to sue on a credit account would have a permissible purpose under section 604(3)(A), which also permits judgment creditors and lien creditors to obtain credit reports on judgment debtors or individuals whose property is subject to the lien creditor's lien. However, if the litigation arises from a tort, there is no permissible purpose. Similarly a consumer report may not be obtained solely for use in discrediting a witness at trial or for locating a witness. See 16 C.F.R. Part 600.1 Appendix.
The FTC administers the Federal Credit Reporting Act under § 1681s.
Section 1681b(f) extends the duties imposed on credit reporting agencies to users of credit reports, such as insurance companies, requiring that credit reports only be obtained or used for purposes authorized by § 1681b. Section 1681b of the Act specifies the two instances in which a reporting agency may provide consumer reports to an insurance company: (1) when the consumer consents in writing; and (2) when the agency has reason to believe that the insurance company intends to use the information in connection with the underwriting of insurance involving the consumer. Id. at § 1681b(a). To ensure that agencies do not provide reports outside of these two circumstances, § 1681e(a) requires reporting agencies to maintain reasonable procedures designed to limit the furnishing of consumer reports to the purposes listed under section 1681b of this title. Id. § 1681e(a); see also 16 C.F.R. pt. 600 app. § 607 (stating FTC commentary on "reasonable procedures").
In Washington v. CSC Credit Services, 199 F.3d 263 (5th Cir. 2000), the Fifth Circuit held that:
In light of the purposes of FCRA, we find that the actionable harm the FCRA envisions is improper disclosure, not the mere risk of improper disclosure that arises when "reasonable procedures" are not followed and disclosures are made. Accordingly, a plaintiff bringing a claim that a reporting agency violated the "reasonable procedures" requirement of 1681e must first show that the reporting agency released the report in violation of § 1681b.Washington, 199 F.3d at 266. Section 1681e(a) qualifies the purpose of the reporting requirement — i.e., the reasonable procedures requirement exists in order to prevent improper disclosure. Id. (citing 1681e(a)("No consumer reporting agency may furnish a consumer report to any person if it has reasonable grounds for believing that the consumer report will not be used for a purpose listed in section 1681b of this title.").
Plaintiffs contention in this particular case is that, instead of furnishing credit reports to Imperial "pursuant to the written consent of the consumer" or "for underwriting purposes," Equifax furnished reports pursuant to general subscriber contracts with the insurance and adjusting company. White notes that in the insurance claims context, as well as the subrogation litigation context, whether the information was utilized to locate the consumer or otherwise, these insurance companies (Imperial entities) stand in an adversarial relationship to the consumers that FCRA intends to protect.
In this particular case White's contention is that it is unreasonable, at best, for Equifax to delegate to Imperial ( i.e., the consumers' adversary in the insurance claims' context), the unfettered, unsupervised, and apparently unmonitored right to access the credit reporting database that Equifax maintains. White submits her situation ( i.e., being victimized by such a course of conduct in violation of her rights recognized by FCRA) is neither uncommon nor atypical, and that she is rather a fairly representative example of victimization of a whole class of consumers. Admittedly, the result of the unrestricted access gone awry in her particular case was six full credit reports furnished to the same adversary, which had instituted subrogation litigation proceedings against her in state court. All of the information contained in the six consumer reports could be utilized by Imperial against White or could give Imperial a tactical advantage over White in such litigation. Simply stated, White's position is that the defendants' course of conduct, working in tandem, and unchecked by any reasonable procedures on either end, is tantamount to "conscious disregard" of the her rights recognized by FCRA, and thus warrants the imposition of punitive, and concomitantly, statutory damages. More importantly, White submits that she is not the "lone ranger," but rather that the egregious course of conduct engaged in by the Equifax entities, in tandem with the Imperial entities, wrongly affected a whole class of consumers just like her. Finally, White contends that such victimization of the consumer can be discerned by looking solely to the defendant entities, which entities embarked upon the course of conduct, regardless of the individual circumstances of the various consumers whose rights the defendant entities cavalierly violated, and most apparently without regard to the individual consumers' circumstances.
IV. ANALYSIS
A. The Court Will Not Revisit the Issue of the Expanded Class
The expanded class reurged by the plaintiff and previously rejected by Judge Barbier implicates approximately 49,000 individuals in a scenario with an intermediary "provider/reseller" such as Choicepoint, with whom Ms. White had absolutely no connexity. In the case of the larger class, an insurance company such as Imperial would request a "credit report" from a "reseller," such as ChoicePoint, representing either that the information is needed for underwriting purposes or that it has the written permission of the consumer.
Because Ms. White's situation is atypical vis a vis such a larger class involving a middleman, and that she is not fairly representative of such a class, Judge Barbier denied White's motion to certify the larger class. See Transcript of May 16, 2001 Hearing, at pp. 8-9. In addition to absence of 23(a)(3) typicality and 23(a)(4) adequacy of representation with respect to the larger proposed class, Judge Barbier's ruling noted that the distinct difference between White's situation and the larger class would also face insurmountable difficulty "down the road" with 23(b)(3)'s predominance requirement. Id. at pp. 15 and 57.
Moreover, plaintiff did not cross-appeal Judge Barbier's ruling denying her motion for class certification with respect to the larger class. On June 10, 2002, the Fifth Circuit Court of Appeals vacated Judge Barbier's October 16, 2001 ruling granting class certification, finding plain error. As to plaintiffs suggestion that "the Fifth Circuit Panel appears to have approved the class definition of the larger class proposed by the plaintiff," nothing in the record supports that assertion. The absence of any cross-appeal regarding Judge Barbier's denial of class certification with respect to the larger class is clear, as are the parameters detailed at the outset of the appellate panel's brief per curiam opinion, to wit: "This is an appeal from the certification of a class under Rule 23 F.R.C.P. It is plain that the order certifying the class must be vacated." See Opinion, at p. 1 (emphasis supplied).
See Plaintiff's Renewed Motion for Class Certification, p. 2.
With respect to the subclass which was the subject of the appeal, however, the Fifth Circuit did not foreclose further consideration of a possible class with some succinct definition of the specific impermissible purpose, such that a defined group may be determinable on a class as distinct from an individual basis:
The able district judge may have intended the definition [ i.e., persons injured by any violation of the act], as a shorthand for a discrete set of persons that the parties have otherwise identified, such as those persons whose credit histories were ordered by the defendant in an effort to locate them. This is surmise, and even it has its difficulties since it is not clear that illegality even among such a defined group is determinable on a class as distinguished from an individual basis.
We do not foreclose further consideration by the district court of a possible class. We mention "location" claimants because although inadequate alone, it does have some virtue of attempting to define a class injured by an act or practice the legality of which is at issue.Id. (emphasis added).
Because this case is here on remand, this Court must consider "the law of the case" doctrine. It is a well-settled and self-imposed doctrine that "serves the practical goals of encouraging finality in litigation and discouraging `panel shopping.'" Illinois Central Gulf R.R. v. International Paper Co., 889 F.2d 536, 539 (5th Cir. 1989); see also Lehrman v. Gulf Oil Corp., 500 F.2d 659, 662 (5th Cir. 1974), cert. denied, 420 U.S. 929, 95 S.Ct. 1128, 43 L.Ed.2d 400 (1975). Under the law of the case doctrine, an issue of law or fact decided on appeal may not be reexamined either by the district court on remand or by the appellate court on subsequent "appeal." Illinois Central Gulf R.R., 889 F.2d at 539; see also United States v. Becerra, 155 F.3d 740, 752 (5th Cir. 1998). Anchoring the doctrine is the premise that "there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions or speculate of chances from changes in members." White v. Murtha, 377 F.2d 428. 431 (5th Cir. 1967)(quoting, Roberts v. Cooper, 61 U.S. (How.) 467, 481, 15 L.Ed. 969 (1857)).
This Court recognizes that "the law of the case" doctrine, however, is not sacrosanct. The Fifth Circuit has often explained that a prior decision should be followed without re-examination unless (1) the evidence on a subsequent trial was substantially different, (2) controlling authority has since made a contrary decision of law applicable to such issues, or (3) the decision was clearly erroneous and would work a manifest injustice. See Becerra, 155 F.3d at 752-53.
This Court's actions on remand should not be inconsistent with either the letter or the spirit of the mandate ( i.e., the "mandate rule"). Much has been said by the parties, including that issues decided implicitly by the court of appeals may not be reexamined by the district court, i.e., a rule that is actually applicable only to those issues decided by necessary implication. See e. g., Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d 1059, 1062 (5th Cir. 1981). It cannot be seriously disputed that the issues with respect to the smaller "Imperial class" were necessarily decided both logically and legally antecedent to the larger or expanded "ChoicePoint class." Indeed, the larger and the smaller class were the subject of the same motion for class certification considered by Judge Barbier. The renewed motion for class certification echoes the same progression, though plaintiff did not appeal or cross-appeal Judge Barbier's ruling denying class certification with respect to the larger class. In any event, and without passing on the issue of the larger class, this Court is inclined to agree with Judge Barbier's opinion regarding the expanded class. The absence of 23(a)'s adequacy of representation vis a vis White and the expanded class is pellucid. The Court now turns its attention to the Imperial class as defined by the undersigned.
The "mandate rule" is a corollary of the law of the case doctrine, and provides that a lower court on remand must "implement both the letter and the spirit of the [appellate court's] mandate," and may not disregard "explicit directives" of the court. See Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1370 (5th Cir. 1992); United States v. Becerra, 155 F.3d 740, 753 (5th Cir. 1998) (citing Barber v. International Brotherhood of Boilermakers, 841 F.2d 1067, 1070 (11th Cir. 1988) for the proposition that a district court is not free to deviate from the appellate court's mandate); and Newball v. Offshore Logistics International, 803 F.2d 821, 826 (5th Cir. 1986) (holding that "a mandate controls on all matters within its scope").
B. The Prerequisites of Rule 23(a)
1. Rule 23(a)(1): Numerosity
Rule 23(a)(1) simply requires that the class be so large that joinder of all members is impracticable. See Fed.R.Civ.P. 23(a)(1). As to numerosity, a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members. Numerically speaking, a potential class of over one hundred members is sufficient for purposes of numerosity and actual numbers are not determinative of the inquiry. In addition to numbers, factors relevant to the numerosity inquiry include the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiffs claim.
See James, 254 F.3d at 570.
See Street v. Diamond Offshore Drilling, 2001 WL 568111, at 4 (E.D. La. May 25, 2001)(Duval, J.)("Although the number of members in a proposed class is not determinative of whether joinder is impracticable, it has been noted that any class consisting of more than forty members `should raise a presumption that joinder is impracticable.'")
See Mullen, 186 F.3d at 624 (quoting Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997)).
Imperial has already determined that credit reports at issue number in excess of 300. These duplicative reports relate to in excess of 145 consumers. A number of these individuals, will, of course, not qualify for class member status as described by the Court — some credit reports were undoubtedly obtained for permissible purposes — but such a determination has not been made. On its face, however, such number of potential class members suffices for purposes of Rule 23(a)(1)'s "numerosity" requirement, and the Court will proceed with its analysis of the certification issues.
2. Rule 23(a)(2): Commonality
Rule 23(a)(2) requires that there be questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2). "The threshold of `commonality' is not high." Bertulli v. Indep. Ass'n of Continental Pilots, 242 F.3d 290, 296-97 (5th Cir. 2001) (citing Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986)). A common question is one that, when answered as to one class member, "will affect all or a significant number of the putative class members." Forbush v. J C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993); see also James, 254 F.3d at 570. The fact that some of the plaintiffs may have different claims, or claims that may require individualized analysis, will not defeat commonality. Id.
See also Mullen, 186 F.3d at 625 (same).
In this case, the potential members of the plaintiffs class share a common factual circumstance in that imperial must have obtained all such reports at issue for the impermissible purposes of locating each such person, or in connection with the investigation of or advancement of a subrogated claim, and in the case of the plaintiff, all three. However, relative to insurance companies obtaining credit reports, § 1681 b permits reports to be obtained only in certain enumerated circumstances, to wit: (1) in connection with underwriting or (2) with the consent of the consumer. Id.
Commonality also resides in the fact that proof regarding class FCRA claims for statutory and punitive damages will focus on the same proof for all potential claimants ( i.e., defendants' alleged course of conduct). To collect punitive damages under FCRA, a plaintiff must demonstrate the defendants' willful non-compliance with the Act's requirements. For a violation to be "willful" within the meaning of FCRA thereby justifying an award of punitive damages, the plaintiff need only demonstrate either that the defendants' course of conduct was tantamount to a "conscious disregard" for the plaintiffs rights or that the defendants' course of conduct entailed "deliberate and purposeful" actions taken against the plaintiffs rights. Plaintiff seeks both statutory and punitive damages. Statutory damages under the provisions of a remedial statute are awarded "solely for failure to comply," without regard to causation.
The Act states that "[a]ny person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of . . . such amount of punitive damages as the court may allow." 15 U.S.C. § 1681n.
See Sapia v. Regency Motors of Metairie, Inc., 276 F.3d 747, 753 (5th Cir. 2002) (citing Cousin v. Trans Union Corporation, 246 F.3d 359, 372 (5th Cir. 2001)).
See e.g. Perrone v. General Motors, 232 F.3d 433, 436-37 (5th Cir. 2000) (discussing statutory and actual damages under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., holding that reliance is an element of a TILA claim for actual damages, and thus actual damage awards must be assessed as an individualized harm), cert. denied, 532 U.S. 971, 121 S.Ct. 1601, 149 L.Ed.2d 468 (2001).
Plaintiff has met her burden with respect to Rule 23(a)(2)'s commonality requirements. Thus the Court need only consider the issue of commonality in the context of Rule 23(b)(3)'s more rigorous "predominance" test.
7A Wright, Miller Kane, Federal Practice and Procedure, § 1763, at 227 (2d ed 1986) (noting the partial redundancy of (a)(2)'s commonality requirement, since the existence of a common question can be viewed as an essential element of (b)(3)'s requirement that common questions predominate over individual issues).
3. Rule 23(a)(3): Typicality
Rule 23(a)(3)'s typicality requirement does not require a complete identity of claims. It simply requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). Like commonality, the test of typicality is not demanding. Mullen, 186 F.3d at 625. Typicality exists when the claims of the named and unnamed plaintiffs have a common source and rest upon the same legal and remedial theories. Id.[T]he critical inquiry is whether the class representatives' claims have the same essential characteristics of those of the putative class. If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality.
In the case at bar, the class asserts a single cause of action, violation of FCRA by the Imperial and Equifax defendants during a discreet time period. The alleged injuries to the putative class members, including the named plaintiff, have a common source. They arise out of the same alleged impermissible practices and/or course of conduct in violation of the putative class claimants' rights recognized by FCRA. Because the defendants' alleged course of conduct is violative of each putative class member's rights, the putative class member's claims are typical of one another. The Court finds that White's claims have a common source and rest upon a single legal theory. Accordingly, White has met her burden of demonstrating that her claims are typical of the claims of the class. See Fed.R.Civ.P. 23(a)(3).
4. Rule 23(a)(4): Adequacy
Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). The class representative's interest must be aligned with, and not antagonistic to, unnamed class members. Mullen, 186 F.3d at 625-26. A sufficient alignment of interests exists when "all class members are united in asserting a common right, such as achieving the maximum possible recovery for the class." In re Corrugated Container Antitrust' Litig., 643 F.2d 195, 208 (5th Cir. 1981). Rule 23(a)'s adequacy requirement encompasses consideration of the class representatives, their counsel, and the relationship between the two. Adequacy of the representation of the class cannot be presumed. See Berger, 257 F.3d at 479-80 (finding error in presuming the adequacy of the putative class representatives in the absence of specific proof otherwise). The Berger court observed:
[W]e have described "[t]he adequacy requirement [as one that] mandates an inquiry into . . . the willingness and ability of the representatives to take an active role in and control the litigation and to protect the interests of the absentees." Likewise, . . . "it must appear that the representative[s] will vigorously prosecute the interests of the class through qualified counsel." Both understandings — even accepting the variance between them — require the class representatives to possess a sufficient level of knowledge and understanding to be capable of "controlling" or "prosecuting" the litigation.
Id. at 482-83 (citations omitted).
Class action lawsuits are intended to serve as a vehicle for capable and committed advocates to pursue the goals of the class members through counsel, not for capable, committed counsel to pursue their own goals through those class members.
Berger, 257 F.3d at 484.
Defendants dispute both the adequacy of the putative class plaintiffs representativeness and the adequacy of class counsel. Defendants submit that the plaintiff is proceeding under a different theory than all of the other potential class members. Citing the December 8, 2000 affidavit of Lynn F. Burkhalter [Exhibit "A" to Imperial's Opposition Memorandum], the defendants explain that, of the people for whom Imperial obtained a report, 59 were Imperial's insureds, while 50 either had a signed promissory note or were judgment debtors. Imperial contends that it has a different relationship with these individuals than it does with Ms. White, and thus at best she is only representative of a mere fraction of the potential claimants (23 in number), against whom Imperial has filed subrogation lawsuits. Additionally, defendants dispute the adequacy of class counsel's representation. Citing Berger, supra, the defendants highlight that any presumption to the contrary is legal error. Imperial notes that of the ten cases plaintiff cited for purposes of demonstrating the adequacy of counsel's representation, only two were ever certified, to wit: (1) Washington, supra, in which class certification was vacated and reversed; and (2) LeBlanc v. Trans Union, E.D. La. Docket No. 98-2081, which was certified as a settlement class only.
See Imperial Defendant's Opposition Memorandum, at p. 12.
This Court disagrees with the defendants' assessment of 23(a)(4) adequacy inquiry. Review of the record in this case shows that plaintiffs counsel has vigorously and competently prosecuted this suit. Moreover, the Court has been given no reason to suspect that co-counsel Donni Elizabeth Young with the firm of Ness, Motley, P.A., is not also up to the task at hand. In any event, the Court finds putative class plaintiff counsel, Ms. Dawn Wheelahan, who has taken the laboring oar in this case, has had a fair amount of experience in handling class action proceedings, and that such experience is satisfactory. Plaintiffs counsel was previously found adequate to represent the nationwide class in LeBlanc, supra. Moreover, Judge Barbier previously determined that plaintiffs counsel was adequate with respect to the class previously certified in the instant case and struck down by the Fifth Circuit Court of Appeals as ill-defined. Considering counsel's performance in this case, their past experience and qualifications, the Court finds the adequacy of representation met as to putative class counsel prong of the analysis.
See e. g. Henderson v. Eaton, 2002 WL 10464 (B.D.La.) (finding class counsel's adequacy based on competent and vigorous prosecution of the case at bar, as well as satisfactory qualifications and past experience).
Addressing the defendants' contention that differences between the named plaintiff and potential class plaintiffs preclude a finding of 23(a)(4) adequacy, the Fifth Circuit has explained that "differences between the named plaintiffs and class members render the named plaintiffs inadequate representatives only if those differences create conflicts of interests between the named plaintiffs' interests and the class members' interests." The class representative's interest must be aligned with, and not antagonistic to, unnamed class members. A sufficient alignment of interest exists when "all class members are united in asserting a common right, such as achieving the maximum possible recovery for the class."
Mullen, 186 F.3d at 626.
Id.
In re Corrugated Container Antitrust Litigation, 643 F.2d 195, 208 (1981); see also Bertulli v. Independent Ass'n of Continental Pilots, 242 F.3d 290, 298 n. 33 (5th Cir. 2001).
The fact that plaintiff seeks statutory and punitive damages, as opposed to actual damages. does not in this Court's opinion create conflict, rendering White an inadequate representative of the class. Indeed, not unlike the majority of the cases, actual damages are difficult if not impossible to demonstrate. Assuming it is meritorious as this Court should, White's case is that of a sophisticated consumer, with what appears to be sizable statutory/punitive damage claims, inasmuch as her consumer report was accessed no less than six times by Imperial, and thus she is well-suited to act as named plaintiff. White has a significant stake in the outcome; she has, and can be expected to, vigorously and zealously pursue this alleged grievance as required by Rule 23(a)(4). Further, since this is a 23(b)(3) class, dissatisfied class members have a right to opt out of the class. The Court concludes that White's interest in proving her claims that the defendants engaged in an egregious course of wrongful conduct, blindly shirking the duties imposed on them by FCRA, stands as adequate motivation to prove these very same claims with respect to the remainder of the class. White has thus met her burden of demonstrating that she will fairly and adequately protect the interests of the proposed class in maximizing their collective monetary recovery. See Fed.R.Civ.P. 23(a)(4).
See Bertulli, 242 F.3d at 298 (citing Fed.R.Civ.P. 23(c)(2)).
B. Rule 23(b)(3): Predominance and Superiority
Rule 23(b)(3) provides that a class can be maintained if the Rule 23(a) factors are met and the court finds that the 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). Other factors to be considered in analyzing whether common questions of law or fact predominate include: (1) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (4) the difficulties likely to be encountered in the management of a class. Fed.R.Civ.P. 23(b)(3)(A)-(D).
In Amchem Products, Inc. v. Windsor, the Supreme Court instructed:
In adding "predominance" and "superiority" to the qualification-for-certification list, the Advisory Committee sought to cover cases "in which a class action would achieve economies of time, effort, and expense, and promote . . . uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." Sensitive to the competing tugs of individual autonomy for those who might prefer to go it alone or in a smaller unit. on the one hand, and systemic efficiency on the other, the Reporter for the 1966 amendments cautioned: "The new provision invites a close look at the case before it is accepted as a class action. . . ."
Amchem, 117 S.Ct. at 2246.
As to the first factor, individual control over the litigation, this matters mainly when absent class members have personal injury claims. See Georgine v. Amehem Prods., Inc., 83 F.3d 610 (3rd Cir. 1996), aff'd sub nom. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 2231, 138 L.Ed.2d 689 (1997). Whereas here, the focus of the proceeding will be the alleged course of conduct of the defendants in conscious disregard of the consumers' rights, the purpose of which is to determine whether statutory and punitive damages are due, the interest in personally controlling the litigation is small. All of the potential putative class claimants ( i.e., individual consumers) have been identified by Imperial.
The possibility that some class members may, in the end, fail to prevail individually does not prejudice the defendants where, as here, the putative class members are linked by a common complaint. See Mullen, 186 F.3d at 624, n. 1 (citing Forbush, supra). Plaintiff notes that in this case if defendants can show that a potential class member had signed a promissory note or was a judgment debtor of Imperial before his or her credit report was accessed or furnished, then such a claimant may ultimately be found not to be a part of the class. However, regarding the Imperial defendants' references to judgments and/or signed promises to pay, the plaintiff highlights the fact that Imperial has not yet produced any such judgments or signed promissory notes. In any event, Imperial has admitted that there was no signed promissory note or judgment in existence with respect to the named plaintiff White prior to Imperial being furnished her credit report on six occasions. Also as to the named plaintiff, it is not disputed that written consent was absent. Absent consent and with no underwriting purpose in mind, there was a violation FCRA ( i.e., times six). As to the potential class members, there is no dispute that Imperial was likewise admittedly furnished their full credit reports containing full account information. These reports were obtained to locate people in connection with investigating insurance claims and/or subrogation litigation. Imperial obtained all of the reports directly from Equifax's database.
Pendency of other litigation and the desirability of concentrating litigation in this forum also weigh in favor of certification. The Court is not aware of any other lawsuits, much less any other lawsuit that relies on FCRA as either the major or sole cause of action. The Court also notes that, despite the incentive of punitive damages and attorneys' fees available under FCRA, the cost of investigating and trying these cases individually likely exceeds the value of any statutory and/or punitive damage award that may be due to any particular putative class claimant. This case has been pending for a period of a few years, has already made one round trip from the district court to the Fifth Circuit and back, and the battle is still being fought over the issue of class certification. Recognizing that consumer claims are particularly appropriate for class resolution, the Supreme Court observed:
The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor.
Amchem, 117 S.Ct. at 2246 (citing Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997 )); see also Henderson v. Eaton, 2002 WL 10464 (E.D.La.)(Vance, J.) (concluding in a FDCPA case that in light of the predominance of common issues and that the claimants are unlikely to bring individual small claims, despite the availability of attorney's fees, that the class action was superior to other methods of adjudicating the claims).
The value of concentrating litigation in this forum is particularly great because the substantive issues have been the subject of much discovery, discussion and litigation in this case thus far. Moreover, the piecemeal approach is rife with shortcomings, not the least of which is the possibility of inconsistent adjudications with regard to an identical course of conduct. Accordingly, the second and third factors weigh in favor of finding predominance and superiority.
The fourth factor, manageability, addresses the difficulties likely to be encountered in the management of a class action. Defendants raise numerous arguments relating to the manageability inquiry, including that: (1) the determination of punitive damages requires individualized proof; and (2) individual determinations are required with respect to liability as to each claimant, since defenses as to the individual claims may defeat liability.
Here, a single federal statute is the source of the defendants' liability. More to the point, White's FCRA claim does not require the Court to apply conflicting state laws. The statutory language which prescribes the duties and responsibilities to the consumers owed by Equifax prescribes the duties owed by the Imperial defendants as well. The duties owed the consumer under ECRA are uniform in every respect. There are some consumers who may have signed a promissory note or have been judgment debtors prior to the disclosure of a credit report, however these particular consumers are excepted from the class at the outset. Unlike the situation in Castano, state law will play little, if any, part in the issues joined in this class action proceeding.
Contrary to defendants' assertion, there is no necessity of showing any injury through individualized proof or otherwise. The focal point of these proceedings will undoubtedly be the defendants' course of conduct working in tandem so as to deprive putative class members of their rights recognized by FCRA. The Court here notes that the Fifth Circuit has recognized that "another consideration in favor of finding predominance is that if the defendants prevail on the liability issues, damages will be moot." Bertulli, 242 F.3d at 298 n. 37 (citing Mullen, 186 F.3d at 626). Here, as suggested by counsel at the oral hearing, if the defendants prevail on liability, any damage calculation issue will be moot. This weighs in favor of finding the requisite class manageability. See id. at 298-99 (finding no abuse in the district court's determination that common issues predominate given their great significance, notwithstanding the fact that the determination of damages may require the district court to reconsider class treatment of damages).
This case is clearly distinguishable from the type of cases in which predominance has been found lacking. Castano involved mass tort personal injury claims regarding a novel "immature tort" governed by various state laws prescribing varying standards of liability. See Castano, 84 F.3d at 741-45. The Castano court was faced with complex choice of law problems, millions of potential plaintiffs, and a novel addiction-as-injury cause of action. See Mullen, 186 F.3d at 627-28 (noting the distinguishing characteristics of the proposed Castano class).
Similarly, in Amchem, in which predominance was also lacking, members of the proposed class were exposed to asbestos-containing products from different sources over different periods of time. Some of the plaintiffs were symptomatic while others were asymptomatic, and as in Castano, supra, class members were from many different states which involved the application of different legal standards to determine liability. See Amchem, 117 S.Ct. at 2250.
For its part, Bolin involved what the Fifth Circuit described as "holistic" certification of numerous claims for consequential losses, resulting form defendant's alleged illegal collection practices. Bolin v. Sears, Roebuck Co., 231 F.3d 970, 976 (5th Cir. 2000). Here, on the other hand, plaintiff asserts against the Equifax and Imperial defendants a single claim for violation of the same federal statute. The class challenges the defendants' conduct during the same time period. The manageability concerns discussed above are not present in the instant case. The potential class members number less than 200 in toto, and liability is predicated on a well-known statutory cause of action. The focus of either or both statutory and punitive damage determinations is the defendants' course of conduct, and the punitive damage amount is assessed by the court, if there is a finding of liability. Each violation of FCRA is a separate violation, and thus the injury to each class member is the same and/or determinable by a multiplier, in the case of multiple violations of the statutorily imposed responsibilities. Most of what is required to determine liability then, as well as most of what is required to determine the damage amounts, may be discerned from the defendants' records.
The identification of the affected consumers is a matter capable of ministerial determination from the defendants' files. The Court has already determined with respect to commonality under 23(a)(2) and typicality under 23(a)(3) that questions common to the Imperial class under consideration exist. The Court now further concludes that these questions predominate over individual concerns. The purpose of the predominance requirement is to ensure that a proposed class is "sufficiently cohesive to warrant adjudication by representation." This standard is met here, where there exists generalized evidence that proves or disproves an element of the class member's claim on a simultaneous, class-wide basis. Further, the Court finds the class action method is superior to other methods for resolving this controversy as to the Imperial class as defined by the undersigned. Because individually small claims are at stake vis a vis FCRA violations alleged, and individual putative class members may not be aware of the violation of their rights, it appears improbable that the putative class members would possess the initiative to litigate their claims individually.
See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231 (1997).
C. Counterclaim Issue
The Imperial defendants urge this Court to reconsider Judge Barbier's October 26, 2000 ruling striking their affirmative defense in the nature of set-off and Imperial's subrogation counterclaim against White, arguing that the ruling is clearly erroneous. The Imperial defendants "defense" to liability under ECRA is that White made an oral promise to pay Imperial, reneged on that promise, and then Imperial filed its lawsuit. For the very same reason that the Court will not revisit the issue of the expanded class, the Court will not now reconsider Judge Barbier's ruling striking the Imperial defendants' subrogation counterclaim.
It is noteworthy, however, that the Imperial defendants are presently prosecuting their subrogation claim against White in state court. More importantly, this Court agrees with Judge Barbier's assessment that the counterclaim is not compulsory. The Fifth Circuit's precedent in Plant v. Blazer Financial Services, Inc. of Georgia, 598 F.2d 1357 (5th Cir. 1979) does not compel a different conclusion.
Blazer Financial is a case under § 1640 of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. The Fifth Circuit in Blazer Financial resolved two issues in the context of TILA litigation, to wit:
15 U.S.C. § 1640(a) provides for civil liability for the failure of a creditor to disclose certain information to a consumer in connection with any consumer credit transaction. The act provides for damages and attorneys fees in the case of a successful action to enforce TILA liability. Id.
First, we decide that an action on the underlying debt in default is a compulsory counterclaim in that must be asserted in a suit by the debtor on a truth-in-lending cause of action. Second, we hold that a successful plaintiff in a truth-in-lending suit is entitled to have her attorneys paid from the award of attorney's fees and not have those fees setoff against a counterclaim judgment on a debt in favor of the defendant against the plaintiff creditor.
Blazer Financial, 598 F.2d at 1357.
In the case at bar, the Imperial defendants' counterclaim does not pertain to an action on an underlying debt in default. Rather, the Imperial defendants' claim which is the subject of the ongoing first-filed state court subrogation suit arises out of an automobile accident ( i.e., the alleged tort liability vis a vis White and the Walkers). Imperial Fire and Casualty Company, the Walkers' uninsured motorist ("UM") carrier, paid their damage claims for personal injuries and property damages allegedly sustained as result of a vehicular collision with White. Only after White was served with state process of imperial's subrogation lawsuit did she discover the subject violations of FCRA, which involved the defendants accessing and/or furnishing her consumer credit report with full accounting information on multiple occasions, without her written permission, and by all accounts for apparently impermissible purposes.
In a nutshell, the Blazer Financial case is easily distinguished, both sub judice and on its facts. The Court recognizes that the Fifth Circuit employs a liberal test for determining whether counterclaims are compulsory, and that such test is predicated on the premise that related disputes between parties should be settled in a single lawsuit. See e.g. Blazer Financial, 598 F.2d at 1361. However, even the most liberal construction of the provision at issue here cannot operate to make a counterclaim that arises out of an entirely different or independent transaction or occurrence compulsory under Fed.R.Civ.P. 13(a). See 6 Wright Miller, Federal Practice and Procedure § 1410, p. 51-52 (2nd ed. 1990). In the case at bar there is no interrelationship at all, much less an obvious one, regarding the plaintiffs FCRA claim and Imperial's tort subrogation claim; likewise, there is no common factual basis for those claims. Cf. Blazer Financial, 598 F.2d at 1364 (concluding that the obvious interrelationship of the claims and rights of the parties, coupled with the common factual basis of the claims, demonstrate a logical relationship between the TILA claim and the counterclaim regarding the underlying debt). Indeed, the only remotely tangential fact is the allegedly wrongful act of Imperial in accessing White's credit report to locate her. Otherwise, the automobile accident and the alleged FCRA violations are entirely unrelated.
V. Conclusion
Because the plaintiff has satisfied the necessary elements of Rule 23(a) and Rule 23(b)(3), the court GRANTS her motion for class certification regarding the Imperial class defined by the Court as follows:
All persons whose consumer reports (also called "credit reports") were provided during the time frame of December 20, 1997 to present by computer transmission from the database of Equifax Credit Information Services, Inc. ("Equifax") to Imperial Adjustment Corporation or Imperial Fire and Casualty Company for the purpose of locating each such person or in connection with the investigation of a subrogated claim, without having obtained the written permission of such consumer.
Specifically excluded from the class are the judges to whom this case is assigned and members of their immediate families. Also excluded are the officers, directors, employees, attorneys and shareholders of Equifax, Inc., Equifax Credit Information Services, Inc., Imperial Fire and Casualty Company, and Imperial Adjustment Corporation. Also excluded are persons whose consumer reports were furnished only after the insurance company or its representative, which received the credit report, had previously obtained a signed promissory note and/or a judgment against the consumer whose credit report was furnished.