Opinion
No. CV 03 0478088
January 20, 2004
MEMORANDUM OF DECISION RE MOTION FOR CLASS CERTIFICATION
The plaintiffs have filed a motion for class certification dated July 27, 2003, pursuant to Practice Book §§ 9-7 and 9-8 on behalf of themselves and on behalf of the class of those persons who were taxpayers of the City of West Haven at any time from July 10, 2002 and the present.
Sec. 9-7. Class Actions; Prerequisites to Class Actions
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Sec. 9-8. — Class Actions Maintainable
An action may be maintained as a class action if the prerequisites of Section 9-7 are satisfied and the judicial authority 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.
On May 29, 2003, the plaintiffs Lawrence Mall of New Haven, Inc. ("Lawrence Mall") and Joseph Celentano ("Celentano") commenced a declaratory judgment action in state court against the defendants City of West Haven ("City") and JER Revenue Services, LLC ("JER"). The legal action alleges various causes of action against both defendants arising out of the defendants' practices and procedures for the collection of "back taxes." The suit seeks temporary and permanent injunctive relief prohibiting the defendants from charging a 15% collection fee when collecting said back taxes.
Essentially the plaintiffs claim that the defendants' imposition of the collection servicing fees violates the plaintiffs' constitutional rights; are usurious in nature; are not reasonably related to any services provided; and are duplicative in many instances, particularly when attorneys are handling some of the "foreclosure/delinquent tax accounts." The plaintiffs further claim that the City has set up a two-tiered system for the collection of back taxes, which creates a disparity in collection costs and/or attorneys fees depending on whether the taxpayer's file is routed to the defendant JER, or to an attorney, to commence a foreclosure action.
The plaintiffs' constitutional argument is grounded in procedural and substantive due process. The plaintiffs contend that a municipality such as West Haven is obligated to afford the plaintiff and other similarly situated taxpayers due process rights when adding any type of tax, fee or charge to a tax bill.
The plaintiffs' common-law argument rests on the notion that the City of West Haven has already been compensated for its collection costs through the imposition of the eighteen percent statutory interest authorized pursuant to General Statutes § 12-146. In the alternative, the plaintiffs contend that if a collection fee such as defendant JER's fifteen percent is permitted, said fee must be reasonably related to the actual labor and time expended by the collection agency and consistent with common-law precedent that has imposed a "reasonableness" standard to fees such as JER's, or those included in a foreclosure action.
Sec. 12-146 as amended by P.A. 03-6 June 30 Special Session reads in relevant part as follows:
Unless the context otherwise requires, wherever used in this section, "tax" includes each property tax and each installment and part thereof due to a municipality as it may have been increased by interest, fees and charges. If any tax due in a single installment or if any installment of any tax due in two or more installments is not paid in full (1) on or before the first day of the month next succeeding the month in which it became due and payable, or if not due and payable on the first day of the month, (2) on or before the same date of the next succeeding month corresponding to that of the month on which it became due and payable, the whole or such part of such installment as is unpaid shall thereupon be delinquent and shall be subject to interest from the due date of such delinquent installment. Except for unpaid real estate taxes the collection of which was, or is, deferred under the provisions of section 12-174, and any predecessor and successor thereto, which unpaid real estate taxes continue to be subject to the provisions of such deferred collection statutes, the delinquent portion of the principal of any tax shall be subject to interest at the rate of eighteen per cent per annum from the time when it became due and payable until the same is paid, subject to a minimum interest charge of two dollars which any municipality, by vote of its legislative body, may elect not to impose, and provided, in any computation of such interest, under any provision of this section, each fractional part of a month in which any portion of the principal of such tax remains unpaid shall be considered to be equivalent to a whole month. Each addition of interest shall become, and shall be collectible as, a part of such tax-Interest shall accrue at said rate until payment of such taxes due notwithstanding the entry of any judgment in favor of the municipality against the taxpayer or the property of the taxpayer. Except as hereinafter specified for taxes representing two or more items of property, the collector shall not receive any partial payment of a delinquent tax which is less than the total accrued interest on the principal of such tax up to the date of payment and shall apply each partial payment to the wiping out of such interest before making any application thereof to the reduction of such principal; provided, whenever the first partial payment is made after delinquency, interest from the due date of such delinquent tax to the date of such partial payment shall be figured on the whole or such part of the principal of such tax as is unpaid at the beginning of delinquency and provided, whenever a subsequent partial payment of such tax is made, interest shall be figured from the date of payment of the last-preceding, to the date of payment of such subsequent, partial payment on the whole or such balance of the principal of such tax as remains unpaid on the date of the last-preceding partial payment. If any tax, at the time of assessment or because of a subsequent division, represents two or more items of property, the collector may receive payment in full of such part of the principal and interest of such tax as represents one or more of such items, even though interest in full on the entire amount of the principal of such tax has not been received up to the date of such payment; in which event, interest on the remaining portion of the principal of any such tax shall be computed, as the case may be, from the due date of such tax if no other payment after delinquency has been made or from the last date of payment of interest in full on the whole amount or unpaid balance of the principal of such delinquent tax if previous payment of interest has been made . . .
In the present action the plaintiffs argue that the defendant JER claims it is owed approximately $33,497.85 in collection servicing fees based on sending two letters, one of which was on City of West Haven Department of Revenue stationary. Similarly, the plaintiffs claim that the defendants have added the 15% collection surcharge to all "back-tax" bills of taxpayers of the City of West Haven, from the inception of defendant JER's contract with the City.
The plaintiffs seek the following remedies:
1. Temporary and permanent injunctive relief to stop the defendants from collecting the collection fees;
2. A judicial declaration as to the propriety of the City's maintenance of a two-tiered system for the collection of back taxes;
3. A judicial determination that the defendants' reliance on General Statutes § 36a-805 violates the due process rights of the plaintiffs;
4. Preliminary and permanent injunctive relief to enjoin the defendants from enforcing General Statutes § 36a-805 in a manner inconsistent with the constitutional and common-law rights of the plaintiffs;
5. Preliminary and permanent injunctive relief to prevent the defendants from issuing deceptive and misleading collections letters and collection letters that includes the defendant JER's 15% servicing as "taxes";
6. A judicial declaration that it is improper for the City's employees in the Tax Collector's Office to receive and process JER's statutory collection fees; and
7. General, special, incidental and consequential damages, money damages, costs, disbursements and reasonable attorneys fees.
The plaintiffs argue that their action satisfies the requirements of Practice Book §§ 9-7 and 9-8, in that the necessary elements of numerosity, commonality, typicality and adequacy are sufficiently met, as are the requirements of predominance and superiority.
The defendants object to the class certification stating that there is no need to certify the class as the plaintiffs are seeking a declaratory judgment as to the constitutionality of certain statutes and the ability of the City to use a collection agency to collect taxes as permitted by such statutes. The defendants argue that the decision as to the constitutionality of the statutes will bind the City without the need for class certification. See Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973). See also, Gandolfi v. City of Yonkers, 101 App.Div.2d 188, 197, N.Y.S.2d 429. The defendants continue that "the common claims of law are limited to the declaratory judgments, but they would not be common issues of law for the ten causes of action" sounding in torts. Further, each proposed class member has different tax assessments and taxes owed, and that the plaintiffs are not representative of the class, in that plaintiff Mall has paid one set of taxes without paying collection fees. Lastly, the defendants maintain that class certification is inappropriate at this time as the pleadings remain open and are subject to motions to strike testing the legal sufficiency of the claims for relief. Cohn v. Massachusetts Mutual Life Ins. Co., 189 F.R.D. 209 (D.Conn. 1999).
A hearing on the plaintiffs' motion for class certification was held before this court on September 29, 2003, at which time the parties had already filed memorandums of law and supplemental memorandums of law in support of, and in objection to, the plaintiff's motion for class certification.
Before turning to the claims of the parties, the court must set forth the standards for considering the granting of class certification. The Supreme Court in its recent decision in Collins v. Anthem Health Plans, 266 Conn. 12, 24-25 (2003), stated, "`[I]n determining whether to certify the class, a [trial] court is bound to take the substantive allegations of the complaint as true.' (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. 743. `[T]he interpretation of pleadings is always a question of law for the court . . . Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988), and cases cited therein. Although essential allegations may not be supplied by conjecture or remote implication; Cahill v. Board of Education, supra, 236; the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. Price v. Bouteiller, 79 Conn. 255, 257, 64 A. 227 (1906).' (Internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467 (2002); see also Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000) ('pleadings must be construed broadly and realistically, rather than narrowly and technically' [internal quotation marks omitted]). `[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action . . . [S]ometimes, it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question . . . General Telephone Co. of the Southwest v. Falcon, [ 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)]. In determining the propriety of a class action, [however] the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of [the class action rules] are met . . . Eisen v. Carlisle Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) . . . [D]oubts regarding the propriety of class certification should be resolved in favor of certification.' (Citation omitted; emphasis in original; internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, supra, 743." Id. at 24-25.
"[C]lass actions serve a unique function in vindicating plaintiffs' rights. [C]lass action procedures . . . increase efficiencies in civil litigation by encouraging multiple plaintiffs to join in one lawsuit. Many jurisdictions have recognized that in certain situations, class action suits are superior to individual lawsuits . . . Connecticut's class action procedures . . . are designed to prevent the proliferation of lawsuits, and duplicative efforts and expenses . . . Accordingly, we have noted that class actions serve four essential and distinct functions, specifically, to: (1) promote judicial economy and efficiency; (2) protect defendants from inconsistent obligations; (3) protect the interests of absentee parties; and (4) provide access to judicial relief for small claimants." (Citations omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, supra, 262 Conn. 25-26, quoting Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. 735.
"Generally, the class action requirements are designed to balance the economic benefits of proceeding with a class action, . . . against any procedural unfairness, which might result from class certification. Amchen Products, Inc. v. Windsor, 521 U.S. 591, 615,117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)." Collins v. Anthem Health Plans, supra at 27.
Certification of a class action is governed by the requirements of Practice Book § 9-7, which provides, "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."
All these requirements must be met in order to certify a class. See Arduini v. Automobile Ins. Co. of Hartford, Connecticut, 23 Conn. App. 585, 533-39, 533 A.2d 152 (1990). If these requirements are met, then the court must consider Practice Book § 9-8, which provides, "[a]n action may be maintained as a class action if the prerequisites of Section § 9-7 are satisfied and the judicial authority 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 plaintiffs bear the burden of establishing that all requirements of these Practice Book Sections are met . . . Ward v. New Haven, Superior Court, judicial district of New Haven, Housing Session, Docket No. 083948 (December 4, 1990, Vertefeuille, J.) ( 3 Conn. L. Rptr. 71, 72); see Walsh v. National Safety Associates, Inc., 44 Conn. Sup. 569, 570-71, 695 A.2d 1095 (1996); see also, Humiston v. Town of Southbury, Superior Court, judicial district of Waterbury, No. CV96-0133244S (Sep. 28, 2000) (Holzberg, J.). The court "has broad discretion in determining whether a suit should proceed as a class action." Marr v. WMTX Technologies Inc., 244 Conn. 676, 630, 711 A.2d 700 (1998). "[T]he requirements of the rule are to be given a liberal construction." Campbell v. New Milford Board of Education, 36 Conn. Sup. 357, 360, 423 A.2d 900 (1980). "In making this determination, most courts have held that the probability of success on the merits is irrelevant and should not be considered." Id.
The leading treatise on class actions states, "(the rule], governing class actions, is a procedural rule, not a matter of substantive law. This obvious underlying principle is important because whether a class action is proper does not depend on the merits of the litigation. There will almost invariably be disputed questions of fact or law on the merits." 1 H. Newberg A. Conte, Class Actions, (2d Ed. 1985) § 7.27, p. 23. "Because these requirements are substantially similar to the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure,[2] we look to federal case law as an aid to our construction of these requirements." Arduini v. Automobile Ins. Co. of Hartford, Connecticut, supra, 23 Conn. App. 539. Humiston v. Town of Southbury, supra, Superior Court, judicial district of Waterbury, No. CV96-0133244S (Sep. 28, 2000) (Holzberg, J.).
A. NUMEROSITY
"There is no mechanical test for determining whether in a particular case the class is so numerous that joinder of all members is impracticable." Campbell v. New Milford Board of Education, supra, 36 Conn. Sup. 360. "The issue is one for the court to be resolved in light of the facts and circumstances of the case." Id., 361. No magic number exists to determine whether a particular class satisfies the requirement of numerosity and, therefore the court should consider the facts and circumstances of each specific case. Arduini v. Automobile Ins. Co. of Hartford, supra at 589. While certification may not be based on mere speculation, a party seeking certification need not show the exact size of the class . . . Campbell v. New Milford Board of Education, supra at 361; Kornick v. Talley, 86 F.R.D. 715 (N.D.Ga. 1980). Courts consider the number of parties involved, the expediency of joinder and the inconvenience of trying individual suits when making this determination. The test is whether the numbers make joinder impracticable. Campbell v. New Milford Board of Education, supra at 361; see also, Governor's Grove Condominium Assn., Inc. v. Hill Developments Corporation, 35 Conn. Sup. 199 (1979). The court will also consider judicial economy, the ability of class members to institute individual suits; see Ward v. New Haven, supra, Superior Court, judicial district of New Haven, Housing Session, Docket No. 083948 (December 4, 1990, Verteffeuille, J.) ( 3 Conn. L. Rptr. 72); and geographical dispersion of class members. See Wood-Smith v. Diserio, Martin, O'Connor Castiglioni, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 104493 (April 29, 1991, Ryan, J.) ( 3 Conn. L. Rptr. 505).
The plaintiffs argue that the proposed class consists of all those taxpayers of the City of West Haven, Connecticut, at any time from July 10, 2002, to the present, that owed delinquent taxes to West Haven. The class potentially consists of a minimum number of over 2500 taxpayers from July 10, 2002 to the present. A deposition of the Mayor of West Haven and the Tax Collector verified that the number of class members would exceed the approximate number of 2500 taxpayers. This number renders joinder impractical. See, Albert Brothers, Inc. v. Waterbury, 195 Conn. 43, 50, 435 A.2d 1289 (1985). The class would include many persons of different income levels, educational levels, ages and physical abilities making it unlikely that the proposed class members would seek and retain individual counsel to prosecute their individual claims. Additionally, it would be difficult for the court to manage in excess of 2500 individual claims, when judicial economy could be more readily attained by hearing the dispute in the form of the proposed class action.
The court finds that a proposed class of more than 2500 delinquent taxpayers satisfies the numerosity requirement.
B. COMMONALITY CT Page 1025
The analysis of commonality requires that the court ascertain whether there are "questions of law or fact common to the class." Arduini v. Automobile Ins. Co. of Hartford, supra, 23 Conn. App. 588-89. "The requirement of commonality does not require a complete identity of legal and factual issues among all class members . . . It only requires that some common questions exist, not that they predominate . . . Thus, the mere fact that there may be factual differences is not fatal to class certification . . . so that where the question of basic liability can be readily established by common issues the case is appropriate for a class action . . . The fact that there may have to be an individual examination on the issue of damages has never been held to bar certification of a class . . ." (Citations omitted; internal quotation marks omitted.) Campbell v. New Milford Board of Education, supra, 36 Conn. Sup. 362. "In short, commonality is satisfied where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated." (Internal quotation marks omitted.) Marr v. WMX Technologies, Inc., supra, 244 Conn. 682.
The central issue, argues the plaintiffs, is the defendants' allegedly illegal conduct in imposing the collection servicing fees on delinquent tax accounts. The questions to be resolved include: (a) whether the defendant's imposition of a 15% collection surcharge is legal; (b) whether the defendants violated the plaintiffs' due process rights in adding on the collection surcharge; (c) whether the defendants, their agents, servants, employees and attorneys, and those acting in concert with them, employed a tax collection scheme in a manner inconsistent with the common-law and constitutional rights of the plaintiffs and similarly situated West Haven taxpayers; (d) whether the City of West Haven has a two-tiered system for the collection of delinquent taxes; (e) whether the defendant JER has violated the Connecticut Unfair Trade Practices Act when seeking to collect the 15% collection surcharge; and (f) whether the defendant JER has violated General Statutes governing Consumer Collection Agencies such as: (1) issuing misleading and deceptive collection letters; (2) collection letters that include JER's fifteen percent servicing fee as "taxes" when General Statutes § 36a-805(13) provides that said fee is contingent on a determination of legal liability. See also, General Statutes § 36a-800.
Sec. 36a-805 as amended by P.A. 03-262 reads in relevant part as follows:
(a) No consumer collection agency shall: . . . (13) add any charge or fee to the amount of any claim which it receives for collection or knowingly accept for collection any claim to which any charge or fee has already been added to the amount of the claim unless the consumer debtor is legally liable therefor, in which case, the collection charge or fee may not be in excess of fifteen per cent of the amount actually collected on the debt; . . .
Section 36a-800 of the general statutes was repealed and Public Act No. 03-262 reading as follows was substituted in lieu thereof:
As used in sections 36a-800 to 36a-810, inclusive, unless the context otherwise requires:
(1) "Consumer collection agency" means any person engaged in the business of collecting or receiving for payment for others of any account, bill or other indebtedness from a consumer debtor or engaged in the business of collecting[, without receiving,] or receiving for payment property tax from a property tax debtor on behalf of a municipality, including any person who, by any device, subterfuge or pretense, makes a pretended purchase or takes a pretended assignment of accounts from any other person or municipality of such indebtedness for the purpose of evading the provisions of sections 36a-800 to 36a-810, inclusive. It includes persons who furnish collection systems carrying a name which simulates the name of a consumer collection agency and who supply forms or form letters to be used by the creditor, even though such forms direct the consumer debtor or property tax debtor to make payments directly to the creditor rather than to such fictitious agency. "Consumer collection agency" further includes any person who, in attempting to collect or in collecting such person's own accounts or claims from a consumer debtor, uses a fictitious name or any name other than such person's own name which would indicate to the consumer debtor that a third person is collecting or attempting to collect such account or claim. "Consumer collection agency" does not include (A) an individual employed on the staff of a licensed consumer collection agency, or by a creditor who is exempt from licensing, when attempting to collect on behalf of such consumer collection agency, (B) persons not primarily engaged in the collection of debts from consumer debtors who receive funds in escrow for subsequent distribution to others, including, but not limited to, real estate brokers and lenders holding funds of borrowers for payment of taxes or insurance, (C) any public officer or a person acting under the order of any court, (D) any member of the bar of this state, and (E) a person who services loans or accounts for the owners thereof when the arrangement includes, in addition to requesting payment from delinquent consumer debtors, the providing of other services such as receipt of payment, accounting, record-keeping, data processing services and remitting, for loans or accounts which are current as well as those which are delinquent. Any person not included in the definition contained in this subsection is, for purposes of sections 36a-645 to 36a-647, inclusive, a "creditor," as defined in subdivision (3) of section 36a-645;
(2) "Consumer debtor" means any natural person, not an organization, who has incurred indebtedness or owes a debt for personal, family or household purposes, including current or past due child support, or who has incurred indebtedness or owes a debt to a municipality due to a levy by such municipality of a personal property tax;
(3) "Creditor" means a person, including a municipality, who retains, hires or engages the services of a consumer collection agency;
(4) "Municipality" means any town, city or borough, consolidated town and city, consolidated town and borough, district as defined in section 7-324 or municipal special services district established under chapter 105a;
(5) "Organization" means a corporation, partnership, association, trust or any other legal entity or an individual operating under a trade name or a name having appended to it a commercial, occupational or professional designation;
(6) "Property tax" has the meaning given to the term in section 7-560;
(7) "Property tax debtor" means any natural person or organization who has incurred indebtedness or owes a debt to a municipality due to a levy by such municipality of a property tax.
The court agrees that this conduct presents issues common to all taxpayers. Every liability question in this case originates from common facts and they involve the same statutes. Each question needs to be answered only once to resolve the issue of liability as to each individual taxpayer. This proposed class challenges the defendants' taxing procedures and practices on their face and as they are applied. The same remedial theory is common to all taxpayers, in that the plaintiffs seek to establish that they do not have to pay the defendant JER's fees. The issue of disputed tax collection procedures is more compatible with a class action than an aggregate of individual disputes concerning the amounts of individual delinquent tax accounts.
The court finds that the question of whether the defendant employed a methodology that was illegal, excessive and unconstitutional is common to the entire proposed class regardless of the individual difference among varying tax delinquent accounts. The court finds that these factual differences are not fatal to class certification. See Campbell v. New Milford Board of Education, supra, 36 Conn. Sup. 362. Accordingly, the court finds that common questions of law and fact exist among all class members.
C. TYPICALITY
"The principles governing the determination as to whether the claims or defenses of the representative party are typical of the claims or defenses of the class are quite similar to those discussed in connection with the requirement of commonality . . . Thus, the requirement of typicality is satisfied when the claim of the representative party arises out of the same event or practice or course of conduct that gives rise to the claims of the class members and is based on the same legal or remedial theory." (Citation omitted; internal quotation marks omitted.) Campbell v. New Milford Board of Education, supra, 36 Conn. Sup. 365. "Any claims and defenses available to the representative parties will be available to other members of the class." Governors Grove Condominium Assn., Inc. v. Hill Development Corp., 35 Conn. Sup. 199, 202, 404 A.2d 131 (1979). The presence of minor factual variations is immaterial. Campbell v. New Milford Board of Education, supra, 36 Conn. Sup. 365; Ward v. New Haven, supra, Superior Court, judicial district of New Haven, Housing Session, Docket No. 083948 (December 4, 1990, Vertefeuille, J.) ( 3 Conn. L. Rptr. 72). "Differences in the amount of damages do not make a representative's claims atypical." Crowley v. Banking Center, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 237594 (March 6, 1992, Katz, J.) ( 6 Conn. L. Rptr. 134, 135). See also, Humiston v. Town of Southbury, supra, Superior Court, judicial district of Waterbury, No. CV96-0133244S (Sep. 28, 2000) (Holzberg, J.). The rule requires merely "a connection between the claims of the class representative and the common questions of fact or law that unite the class." Walsh v. National Safety Associates, Inc., supra 44 Conn. Sup. 585. The requirement of typicality is satisfied where the claims of the representative party arise "out of the same event or course of conduct that gives rise to the claims of the class members and are based on the same legal theory or remedial theory." Campbell v. New Milford Board of Education, supra, 36 Conn. Sup. at 365, quoting Newbury, Class Actions, § 1115c, p. 186. The presence of factual variations is generally immaterial unless those variations render the representative party's claims markedly different from those of the class. Id.; Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 489 (N.D.Cal. 1978).
The plaintiffs argue that the claims of the proposed class members arise out of the same instances of illegal conduct by defendants. Not only are the representatives' claims typical of the claims of the class members, they are identical except for a possible determination of damages. The plaintiffs are affiliated with businesses, corporations, limited liability companies and/or own homes that constitute taxable property in the City of West Haven. As taxpayers, they are harmed by any alleged illegal course of contact by the defendants. The present action seeks to enforce the common-law and constitutional rights of the proposed class of taxpayers and to compensate them for the wrongs allegedly inflicted upon them by the defendants' course of conduct in attempting to impose a 15% tax collection surcharge fee. By mailing form letters seeking the 15% fee to proposed members of the class and the present plaintiffs the defendants have allegedly engaged in a course of conduct that is common to all members of the proposed class. Accordingly, the plaintiffs argue that the claims of the proposed class arise out of the same practice by the defendants and that the typicality requirement is therefore satisfied.
The court finds that because the named plaintiffs are taxpayers of the City of West Haven and their claim arises out of the same event or practice or course of conduct that gives rise to the claims of the class members, their claims are typical of the proposed class and are based on the same legal or remedial theory. See Campbell v. New Milford Board of Education, supra, 36 Conn. Sup. 365. Accordingly, the court finds that the typicality requirement is satisfied.
D. ADEQUACY OF REPRESENTATION
"A litigant must be a member of the class which he or she seeks to represent at the time the class action is certified by the . . . court." Fetterman v. University of Connecticut, 41 Conn. Sup. 141, 143, 559 A.2d 246 (1988), quoting Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 421 L.Ed.2d 531 (1975). "A class action may not be maintained by a putative representative who is not a member of the class . . ." Id., quoting Hernandez v. Gray, 530 F.2d 858, 859 (10th Cir. 1976).
"In deciding whether representative plaintiffs will fairly and adequately protect the interests of the proposed class, the court should consider whether counsel is competent and diligent, whether the action is a collusive suit, and whether there are any antagonistic or conflicting claims between the representative plaintiffs and members of the proposed class." Governors Grove Condominium Assn., Inc. v. Hill Development Corp., supra, 35 Conn. Sup. 202. "In the end, the question whether named plaintiffs are adequate class representatives is one committed to the sound discretion of the . . . court." Malchman v. Davis, 761 F.2d 893, 899 (2d Cir. 1985); County of Suffolk v. Long Island Lighting Co., 710 F. Sup. 1407, 1413 (E.D.N.Y. 1989).
"[The] requirement [of adequacy of representation] is the most important because it involves due process considerations. Since the absent class members will be conclusively bound by the judgment, the court must ensure that their interests are adequately represented." Campbell v. Milford Board of Education, supra, 36 Conn. Sup. 366-67. "This requires the representative to have so substantial a stake in the outcome of the litigation that he assures the court that he will `put up a real fight.'" Id., 367, quoting Barrett v. Southern Connecticut Gas Co., 172 Conn. 362, 373, 374 A.2d 1051 (1977).
The plaintiff argues that each of the members of the class stand to lose property and/or money if the action is unsuccessful. The plaintiffs pay taxes to the City of West Haven. They argue that they have a substantial stake in the outcome of the litigation, which is to keep their property and/or money, and that is the same stake held by all proposed class members. As class representatives, the plaintiffs state that they will "put up a real fight" and will fairly and adequately represent the interests of the class. Neither plaintiff is aware of any conflict among the taxpayers or themselves, and they believe that their legal counsel will competently assist them in fairly and adequately representing the class. Plaintiffs have already been in contact with prospective members of the class and have submitted affidavits from prospective members of the class. It is important to note that the plaintiffs do have the financial resources available to fairly and adequately represent the class.
The court finds that the representative plaintiffs will fairly and adequately protect the interests of the proposed class, because counsel is competent and there are no antagonistic or conflicting claims between the representative plaintiffs and members of the proposed class. See Governors Grove Condominium Assn., Inc. v. Hill Development Corp., supra, 35 Conn. Sup. 202. As discussed above, the common question among the class is whether the tax collection practices and procedures of the defendants were illegal and unconstitutional. The court finds that the due process considerations are satisfied because the representative parties are taxpayers of the City of West Haven have a substantial stake in the outcome of the litigation. The court finds that taxpayers who do not wish to be bound by the judgment may opt out of the class when notice is given. See Caserta v. Parker, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 363275 (February 28, 2000) (Skolnick, J.). Accordingly, the court finds that the representative parties will adequately represent the interests of the class.
E. COMMON QUESTIONS PREDOMINATE
Practice Book § 9-8 requires that the common questions of law or fact predominate over individual issues. "Unlike the requirement of Practice Book, 1978, § 87(2) [now Practice Book (1988 Rev.) § 9-8], that common issues exist, this requirement involves the stricter standard that the common issues predominate over the individual issues. See Wilensky v. Olympic Airways, S.A., 73 F.R.D. 473, 477 (E.D.Pa. [1977]) . . . The key to the requirement, however, is that the common issues predominate, not that they be dispositive of the action; In re Sugar Industry Antitrust Litigation, 73 F.R.D. 322, 345 (E.D.Pa. [1976]); so that the fact that some individual issues may remain after the common issues are resolved is unimportant. Dolgow v. Anderson, CT Page 1030 43 F.R.D. 472, 490 (E.D.N.Y. [1968]), rev'd, 438 F.2d 825 (2d Cir. [1970])." (Citation omitted; emphasis in original.) Campbell v. New Milford Board of Education, supra, 36 Conn. Sup. 368. "When common questions represent a significant aspect of a case so that they can be resolved for all class members in a single suit, predominance exists." Walsh v. National Safety Associates, Inc., 44 Conn. Sup. 569, 588-89, 695 A.2d 1095 (1996). If the common issues predominate over the individual issues, "the superiority of [the] class action over individual lawsuits is obvious." Campbell v. New Milford Board of Education, supra at 370.
The plaintiffs argue that predominately common issues exist in this case, and that the action seeks to enforce each taxpayer's constitutional and common-law rights. The defendants have directed their course of conduct at each taxpayer and no taxpayer is seeking to enforce any right not common to other taxpayers. The "major thrust of this action" is whether the defendants' conduct violated the plaintiffs' and each individual taxpayer's constitutional and common-law rights and whether the defendants' conduct violated the state's banking laws governing consumer collection agencies. See Campbell v. New Milford Board of Education, supra at 369; Crowley v. The Banking Center, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 237599 (March 6, 1992, Katz, J.) ( 6 Conn. L. Rptr. 134). The issues of individual damages and losses are secondary issues and will be addressed only if the defendants' tax collection practices and procedures are found to be illegal. Accordingly, the court finds that the predominance element is satisfied.
F. SUPERIORITY
The court must determine whether a class action is superior to other available methods of adjudication. See Practice Book § 9-8. "In determining whether a class action is superior to other available methods for the fair and efficient adjudication of the controversy, the court must initially consider what other procedures, if any, exist for disposing of the dispute." Campbell v. New Milford Board of Education, supra 36 Conn. Sup. 369. "Where . . . common issues predominate and parties are numerous, the superiority of a class action over individual suits is obvious and has been recognized by the courts." Id., 370.
"Some of the reasons for such superiority include the following: (1) the economic injuries to some of the proposed class members may be too minuscule to justify the commencement of independent actions by those members; (2) the proliferation of lawsuits that might otherwise result will be minimized by class action; (3) duplicative efforts by the judiciary and the litigants can be eliminated by use of a class action; (4) a class action will obviate the need for duplicative litigation expenses and attorneys fees; (5) if a class is certified, the defendant will be relieved from the burden of defending numerous lawsuits in diverse geographical locations; and (6) resolution of the disputes in a single action will avoid inconsistent judicial decisions." Crowley v. Banking Center, supra, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 237594 (March 6, 1992, Katz, J.) ( 6 Conn. L. Rptr. 134, 137). The court finds that the certification of the approximately 2500 taxpayers and/or property owners would prevent the proliferation of individual lawsuits. Moreover, the court finds that the certification of the proposed class will avoid inconsistent judicial decisions. Accordingly, the court finds that a class action is the superior method to adjudicate plaintiffs' claims.
G. CONCLUSION
The plaintiffs have satisfied their burden of establishing that this case meets all the requirements governing class certification. The proposed class is certified as: All persons, corporation, businesses and/or limited liability companies who owned property and were taxpayers of the City of West Haven at any time from July 10, 2002 and the present, as set forth on the appropriate grand lists for the subject time periods. Accordingly, the plaintiffs' motion for class certification is granted.
Further questions relating to notice and the details of notice to the proposed members of the class are referred to the Complex Litigation Docket, Superior Court, judicial district at Waterbury, as the action has been approved for transfer to said docket.
BY THE COURT
ARNOLD, JUDGE.