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Eggen v. WESTconsin Credit Union

United States District Court, W.D. Wisconsin

February 26, 2016

BRIAN EGGEN and MARY EGGEN, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
WESTCONSIN CREDIT UNION, Defendant.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

Plaintiffs Brian Eggen and Mary Eggen are suing defendant WESTconsin Credit Union under the Driver’s Privacy Protection Act (18 U.S.C. §§ 2721-2725), and the common law of nuisance for disclosing plaintiffs’ unredacted driver’s license numbers and Social Security numbers in complaints filed in delinquency actions in small claims court. Plaintiffs have filed a motion in which they seek to represent the following class under Fed.R.Civ.P. 23(b)(3): “All individuals whose [driver’s license numbers] Defendant WESTconsin disclosed in a Wisconsin circuit court filing.” (Because plaintiffs’ proposed class definition omits any mention of Social Security numbers, I will assume that plaintiffs have abandoned that issue with respect to anyone other than the named plaintiffs.)

Plaintiffs filed their motion on November 6, 2015. Dkt. #41. Under the court’s briefing schedule, defendant’s response brief was due on November 30, 3015. When nearly two months passed without any response from defendant, I treated the motion as unopposed.

In an order dated December 30, 2015, dkt. #54, I granted plaintiffs’ motion after conducting my own analysis under Fed.R.Civ.P. 23. I concluded that the class is sufficiently numerous; the named plaintiffs’ claims and defenses are typical of the rest of the class; the named plaintiffs and their counsel can adequately represent the interests of the class; the class was defined clearly; common questions predominate over individual questions; and a class action is superior to other methods of adjudication in light of the small amount of damages involved in any one claim. I stated that, “[i]n the absence of any objection by defendant regarding potential individualized inquiries in determining liability, it is reasonable to conclude that common questions predominate over 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.” Dkt. #54 at 4.

I had two concerns about the scope of the class. 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 four-year 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 did 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 directed the parties to show cause why the court should not adopt the following class 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.” The following day it came to the court’s attention that the parties had agreed to an unusually lengthy briefing period, giving defendant until January 20, 2016, to file a response to plaintiffs’ motion. Dkt. #38. As a result, I vacated the December 30 order to allow the parties to complete briefing. Dkt. #55. (In the future, if counsel receive a briefing schedule that is at odds with a stipulation, they should notify the court of the discrepancy.)

Now that the court has received an opposition brief and a reply brief, plaintiffs’ motion for class certification is ready for review. I adhere to my original decision and am granting plaintiffs’ motion. Defendant raises several objections to plaintiffs’ motion, but most of those objections rely on basic misunderstandings of the case law applying Rule 23. Plaintiff’s counsel’s professional disciplinary history is a valid concern, but I am persuaded that sufficient time has passed without any new problems to allow Thomas Lyons, Jr. to serve as class counsel.

OPINION

In their reply brief, plaintiffs adopt the class definition proposed in the December 30 order: “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.” Because I already concluded that this proposed class satisfied Rule 23, I will limit my discussion to the objections raised in defendant’s opposition brief.

A. Differences in Alleged Injuries

Defendant makes several arguments related to alleged differences in plaintiffs’ and the other class members’ injuries. First, defendant cites Kohen v. Pacific Investment Management Co. LLC, 571 F.3d 672, 677 (7th Cir. 2009), for the proposition that “a class should not be certified if it is apparent that it contains a great many persons who have suffered no injury at the hands of the defendant.” Defendant says class certification should be denied in this case because plaintiffs “have presented no evidence of injury to anyone, including themselves.” Dft.’s Br., dkt. #61, at 5.

Defendant’s argument does not make any sense. The concern in Kohen was with a class definition that swept so broadly it would include individuals who were not affected by the defendant’s conduct. In this case, individuals are included in the class only if defendant published their driver’s license numbers, so all class members suffered the same injury. Defendant’s point seems to be that plaintiffs have not cited evidence of class members who suffered an injury beyond disclosure, such as identity theft. However, that type of injury is not required to confer standing for a violation of the Driver’s Privacy Protection Act. Graczyk v. West Publishing Co., 660 F.3d 275, 278 (7th Cir. 2011) (plaintiff has standing to sue under Act if she alleges that defendant obtained, used or disclosed personal information in violation of Act). In any event, an argument that none of the class members were injured would be an argument for dismissal of the case for lack of subject matter jurisdiction, not an argument that the plaintiff’s claims lack any common questions.

Second, defendant makes an alternative argument that “[e]ven if there were injuries suffered by members of the putative class, those injuries likely vary in severity, which would result in differing levels of damages.” Dft.’s Br., dkt. #61, at 5. Defendant cites Jamie S. v. Milwaukee Public Schools, 668 F.3d 481, 497 (7th Cir. 2012), for the proposition that plaintiffs cannot satisfy the commonality requirements of Rule 23 by alleging that “each class member suffered a violation of the same provision of law.” Rather, “[c]ommonality requires the plaintiffs to demonstrate that the class members have suffered the same injury.” Id.

Defendant has misread Jamie S. and the cases cited in that opinion. The requirement that class members must suffer the “same injury” does not mean that they must suffer the same damages. The next sentence in Jamie S. explains that the “same injury” means that “[t]he class claims must depend upon a common contention and that common contention, moreover, must be of such a nature that it is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. (internal quotations omitted). That test is satisfied in this case because all class members are contending that defendant published their driver’s license numbers without a legitimate reason, in violation of the Driver’s Privacy Protection Act and the common law of nuisance. Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014) (“Where the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members, there is a common question.”).

Defendant makes a related argument that plaintiffs do not allege that they suffered any injuries other than disclosure, so they cannot adequately represent class members who may have suffered additional injuries. Defendant attempts to compare plaintiffs’ situation to that of the plaintiffs in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 619 (1997), a case in which the Supreme Court denied class certification to individuals who claimed that the defendant had exposed them to asbestos. According to defendant, the Court denied certification because “[t]he proposed class in Amchem consisted of currently injured members as well as those who were exposed to future injury, ” Dft.’s Br., dkt. #61, at ...


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