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Rizzo v. Kohn Law Firm S.C.

United States District Court, W.D. Wisconsin

July 18, 2018

SASHA RIZZO, on behalf of herself and all others similarly situated, Plaintiff,
v.
KOHN LAW FIRM S.C., Defendant.

          OPINION & ORDER

          JAMES D. PETERSON, DISTRICT JUDGE.

         Plaintiff Sasha Rizzo is suing defendant Kohn Law Firm S.C. for violating her rights under the under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692d, 1692e(1), and 1692f, and the Fair Credit Reporting Act, 15 U.S.C. § 1681b. Specifically, Rizzo says that Kohn disclosed her credit score in public documents filed in a collections action in state court and that doing so was unlawful debt collection activity under the FDCPA and an impermissible use of a “consumer report” under the FCRA.

         Two motions are before the court: (1) Rizzo's motion for class certification under Rule 23 of the Federal Rules of Civil Procedure, Dkt. 42; and (2) a motion to intervene filed by Wisconsin Lawyers Mutual Insurance Company, Dkt. 48. For the reasons explained below, the court will grant both motions.

         After the parties finished briefing Rizzo's motion for class certification, Kohn filed a motion for summary judgment, four months before the deadline for doing so. Dkt. 57. In light of the court's decision to certify the class, Kohn's motion is premature. Because any dispositive ruling will bind all class members, the court cannot resolve Kohn's motion until the class members receive notice and have an opportunity to opt out. So the court will deny Kohn's motion without prejudice to Kohn's refiling it after the expiration of the opt out period.

         ANALYSIS

         A. Motion to intervene

         Wisconsin Lawyers Mutual Insurance Company (WLMIC) wishes to intervene so that it can obtain a declaration regarding whether a liability policy it issued to Kohn covers the claims in this case. None of the other parties oppose the motion.

         A party may intervene as of right under Rule 24 of the Federal Rules of Civil Procedure if the request is timely, the party claims an interest relating to the property or transaction that is the subject of the action, denying the request may “impair or impede” the party's ability to protect that interest, and the existing parties are not adequate representatives of that interest. Heartwood, Inc. v. U.S. Forest Serv., Inc., 316 F.3d 694, 700 (7th Cir. 2003). This court has concluded in numerous previous cases that an insurance company seeking a coverage determination satisfies that test. Neri v. Monroe, No. 11-cv-429 2011 WL 13131150, at *1 (W.D. Wis. Dec. 13, 2011) (citing cases).

         In this case, the only requirement in question is timeliness. WLMIC waited more than a year to seek intervention and it identifies no reason for the delay. Because the other parties do not allege that they will be prejudiced, the court will grant the motion to intervene, but with a caveat. Having waited so long to act, WLMIC should not expect to receive a stay or any alteration in the court's schedule to allow time to get up to speed. It will have to abide by the deadlines set forth in the preliminary pretrial conference order. Dkt. 39.

         B. Motion for class certification

         Rizzo seeks to certify two classes, one for violations of the FCRA and one for violations of the FDCPA. Both classes include current and former customers of Discover Bank in the state of Wisconsin who have had their FICO credit scores published by Kohn in Wisconsin circuit court collection actions. Both classes exclude counsel for both sides and court staff. The only difference between the two proposed classes is that the FCRA class extends to conduct that occurred up to two years before Rizzo filed this lawsuit and the FDCPA is limited to one year.[1]This is presumably because the statute of limitations for the FCRA is two years of the discovery of the violation, 15 U.S.C. § 1681p(1), and the statute of limitations for the FDCPA is one year from the date the violation occurred, 15 U.S.C. § 1692k(d).

         The requirements for class certification under Rule 23 are well established: (1) the scope of the class as to both its members and the asserted claims must be “defined clearly” using “objective criteria, ” Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015); (2) the class must be sufficiently numerous, include common questions of law or fact, and be adequately represented by plaintiffs (and counsel) who have claims typical of the class, Fed.R.Civ.P. 23(a); and (3) the class must meet the requirements of at least one of the types of class actions listed in Rule 23(b). In this case, Rizzo asks for certification under Rule 23(b)(3), which applies if “the questions of law or fact common to class members predominate over any questions affecting only individual members” and “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

         Kohn's three-page response brief does not address any of these requirements, which implies that Kohn believes that Rizzo has satisfied all of them. Regardless, the court concludes that she has.

         As to the definition of the class, its scope is clear and its members can be identified using objective criteria. As to numerosity, it is undisputed that Kohn disclosed the credit scores of more than 800 customers within the two years that preceded this lawsuit. As to the adequacy of class counsel, courts have appointed Thomas Lyons Sr. and Thomas Lyons Jr. in many other class actions, including Eggen v. WESTconsin, 14-cv-873-bbc, (W.D. Wis. Feb. 26, 2016), which ...


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