(Doc. 11, Resp. at ¶ 11; Doc. 13, Memo. Opp. at ¶ 3). Also in support of his argument, Plaintiff cites to a case out of the Middle District of Tennessee, Coleman v. GMAC, 220 F.R.D. 64 (M.D. Tenn. 2004). II. STANDARD OF REVIEW
Finally, our independent research demonstrates that our conclusion is consistent with the decisions of other jurisdictions in a variety of contexts that are "nearly universal in finding that auto dealers are not agents of auto financing companies . . . ." Coleman v. General Motors Acceptance Corp., 220 F.R.D. 64, 93 (M.D. Tenn. 2004) (certifying class in Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq., case alleging racial discrimination, but noting that plaintiffs' claims were stronger under that act's statutory definitions of "creditor" or "assignee" than via agency theory). For example, in Chrysler Credit Corp. v. Barnes, 126 Ga. App. 444, 452, 191 S.E.2d 121 (1972), a wrongful repossession case with other claims arising under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., the plaintiff claimed that a dealer's salesman had not given her full disclosure of the applicable finance charges and a duplicate of the financing agreement.
See Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 428 (6th Cir. 2012); Coleman v. Gen. Motors Acceptance Corp., 220 F.R.D. 64, 88-90 (M.D. Tenn. 2004) (collecting cases); see also Anderson v. Garner, 22 F.Supp.2d 1379, 1386 (N.D.Ga. 1997) (“‘All the class members need not be aggrieved by or desire to challenge the defendant's conduct in order for one or more of them to seek relief under Rule 23(b)(2).'” (quoting Johnson v. Am. Credit Co. of Ga., 581 F.2d 526, 532 (5th Cir. 1978))). Indeed, “certification of a Rule 23(b)(2) class is proper, despite the fact that not all class members may have suffered the injury posed by the class representatives, as long as the challenged policy or practice was generally applicable to the class as a whole.”
Courts have held that issues related to arbitration agreements do not have to be resolved at the class certification stage; but can be resolved through the creation of subclasses or the elimination of some members of the class at a later stage. Finnan v. L.F. Rothschild & Co., 726 F. Supp. 460, 465 (S.D.N.Y. 1989)("Defendant submits that within the potential class, some employees had signed liability releases, others had signed arbitration agreements...[These issues] may well call for the eventual creation of subclasses, or for dropping certain members from the class, but they do not defeat the merits of class certification at this juncture."); Coleman v. Gen. Motors Acceptance Corp., 220 F.R.D. 64, 91 (M.D. Tenn. 2004)("[T]he court reserves the right to create a subclass, modify the class definition, or otherwise specially treat the class members subject to arbitration at a later juncture."); Midland Funding, LLC v. Brent, No. 3:08 CV 1434, 2010 WL 4628593, at *4 (N.D. Ohio Nov. 4, 2010)("Any arbitration-related defenses...may be dealt with pursuant to Fed.R.Civ.P. 23 at a later stage in the litigation, through the creation of subclasses, or by eliminating some members of the class."). Therefore, at the current stage, the Court does not need to resolve whether Defendants have waived their rights to enforce a mandatory arbitration clause as Plaintiffs argue.
One court has held that "[t]he fact that some members of a putative class may have signed arbitration agreements or released claims against a defendant does not bar class certification," and that "class certification should not be denied merely because some class members may be subject to the defense that their claims are barred by valid documents releasing the defendant from liability." Herrera v. LCS Fin. Servs. Corp., 274 F.R.D. 666, 681 (N.D. Cal. 2011) (quoting Coleman v. GMAC, 220 F.R.D. 64, 91 (N.D. Tenn. 2004)). The court in Coleman decided to proceed "by ruling on the merits of the class certification and reserving the right to create subclasses or exclude members from the class at a later juncture."
Typicality cannot be established when a named plaintiff who proves his own claim would not necessarily have proved anyone else's claim. Coleman v. General Motors AcceptanceCorp., 220 F.R.D. 64. 79 (M.D. Tenn. 2004). If Plaintiff here proves his constitutional claim, he will prove the constitutional claims of the other class members, so long as the class is defined in the limited way described above.
SeeCooper, 467 U.S. at 874, 104 S.Ct. 2794; Woodson, 614 F.2d at 941-42. Thus, while Travelers is correct that the preclusive effect of the verdict is an appropriate consideration in the context of the Rule 23 adequacy requirement seeIn re Universal Serv. Fund. Tel. Billing Practices Litig., 219 F.R.D. 661, 669 (D.Kan.2004) (citing Coleman v. Gen. Motors Acceptance Corp., 220 F.R.D. 64, 80 (M.D.Tenn.2004))., that consideration is not dispositive here. There is some authority for the proposition that an absent class member may not subsequently assert the same claim under a different legal theory.
e waiver is key to certification). See, e.g. , Murray v. GMAC Mortg. Corp. , 434 F.3d 948, 953 (7th Cir. 2006) (Easterbrook, J.) (weighing the value of the purportedly waived claim against the value of proceeding as a class on the un-waived claims); Todd v. Tempur-Sealy Int'l, Inc. , No. 13-CV-04984-JST, 2016 WL 5746364, at *5 (N.D. Cal. Sept. 30, 2016) ("A strategic decision to pursue those claims a plaintiff believes to be most viable does not render her inadequate as a class representative."); O'Connor , 311 F.R.D. at 566 (finding no adequacy problems where the Plaintiffs provided evidence that the waived claims were low value and may have been difficult to prove on a class-wide basis); Bowe v. Pub. Storage , 318 F.R.D. 160, 175 (S.D. Fla. 2015) ("[C]ourts have found proposed representatives inadequate where they had strategically abandoned or did not have standing to bring substantial and meaningful claims that many absent class members could potentially bring and prevail upon."); Coleman v. Gen. Motors Acceptance Corp. , 220 F.R.D. 64, 84 (M.D. Tenn. 2004) (finding no adequacy problems where the risk of future preclusion was low). A class representative's decision to waive unnamed class members' claims will defeat adequacy where the lost value of the waived claims (percent risk of future preclusion multiplied by the value of the waived claim) is greater than the strategic value of the decision to waive.
Baghdasarian v. Amazon.com, Inc., No. 05-8060, 2009 WL 4823368, at *4 (C.D. Cal. Dec. 9, 2009) (allegations of standing found sufficient at the class certification stage do not definitively establish standing for purposes of summary judgment), aff'd, 458 Fed.Appx. 622 (9th Cir. 2011); Coleman v. Gen. Motors Acceptance Corp., 220 F.R.D. 64, 87 (M.D. Tenn. 2004) (certifying class with the caveat that “[s]hould discovery fail to substantiate the plaintiffs' allegations and the inferences the court now draws in their favor, GMAC may again challenge [the] plaintiffs' ability to establish standing on a motion for summary judgment”); Antenor v. D & S Farms, 39 F.Supp.2d 1372, 1376-77 (S.D. Fla. 1999) (“In deciding whether to certify the class, this Court was required to look only to the allegations of the Complaint” but “[o]nce a class is certified and
In both cases that plaintiffs cite in which a named plaintiff signed an arbitration agreement, the court dismissed that plaintiff before addressing class certification. See D'Antuono v. C & G of Groton, Inc., No. 3:11-CV-33 (MRK), 2011 WL 5878045, at *2 (D. Conn. Nov. 23, 2011) (noting prior case closure with respect to named plaintiffs that signed arbitration agreements); see also Coleman v. Gen. Motors Acceptance Corp., 220 F.R.D. 64, 68 (M.D. Tenn. 2004) ("The court has also granted [Defendant]'s Motion to Compel Arbitration and to dismiss with respect to named class plaintiff Carolyn Dixon, [and] terminated Carolyn Dixon as a party."). Because both/all plaintiffs prosecuting the litigation here have signed a contract with an arbitration agreement, CNA's Motion to Compel is not premature.