Opinion
No. 00 C 5580
September 4, 2001
MEMORANDUM OPINION AND ORDER
David and Kathy Van Slee bought a van from Don McCue Chevrolet Geo. Instead of paying cash, the Van Slees agreed to pay the cost of the van, less the value of the van that they Waded in, over time. For the privilege of delayed payment, the Van Slees agreed to pay a finance charge. At some point, the Van Slees apparently became dissatisfied with the deal that they got from Don McCue and sued it for violating, among other things, the federal Truth In Lending Act. They sue on their own behalf and on behalf of a purported class of similarly situated individuals on all claims initially, but at this stage of litigation only with respect to the TILA claim. The Van Slee's moved to certify a class of plaintiffs for their TWA claim. For the reasons stated below, the Court DENIES WITHOUT PREJUDICE the Van Slees' motion for class certification.
Don McCue also moved to dismiss the TILA claim, but the Court addresses that motion in a separate opinion.
Background
On June 2, 2000, David and Kathy Van Slee bought a Chevrolet Van from Don McCue. In negotiating the payment details, Don McCue offered the Van Slees $1,000 off of the regular price if they would pay cash. Alternatively, if the buyers decided to make payments over time, Don McCue offered to arrange financing with a promotional annual percentage rate of interest. The Van Slees picked option number two, the financing plan. The Van Slees traded in their 1994 van and agreed to pay the balance over time. To memorialize their agreement, the Van Slees and Don McCue entered a retail installment contract.
After finalizing the paperwork with Don McCue, the Van Slees set off on a vacation using the van as their transportation. They returned to find out that the financing arrangement that they agreed to had "not gone through." Don McCue told the Van Slees that they needed to pay an additional $1,000 to complete the sale. The Van Slees balked at this suggestion and asked for the trade-in back. Ultimately, the parties agreed that the Van Slees would forego about $1,000 in optional equipment that had yet to be installed on their new van. The parties executed another retail installment contract on June 28, 2000. The Van Slees say that Don McCue should have disclosed the rebate that they didn't get as part of the finance charge and that their failure to do so violated TILA. They seek to represent a class of people who: (a) entered into a credit transaction with Don McCue to purchase a vehicle in which Don McCue provided TWA disclosures; (b) received a promotional annual percentage rate; (c) forewent a rebate to receive the promotional APR; (d) since September 11, 1999.
Analysis
Subsection A of Rule 23 of the Federal Rules of Civil Procedure provides four standards that must be met before a court will certify a class. See Fed.R.Civ.P. 23(a). These are referred to in shorthand as: (1) numerosity; (2) commonality;(3) typicality; (4) adequacy. See In re Bank One Shareholders Class Actions, 96 F. Supp.2d 780, 782 (N.D. Ill. 2000). If the plaintiffs fail to satisfy even one of the requirements of Rule 23, a class will not be certified. See Retired Chicago Police Assoc. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993) (citing Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993)); see also Marcial v. Coronet Ins. Co., 122 F.R.D. 529, 531 (N.D. Ill. 1988), aff'd 880 F.2d 954 (7th Cir. 1989) ("Failure to satisfy the numerosity requirement is, alone, a sufficient ground for denying class certification.") In addition, the proposed class must satisfy one of the elements outlined in Rule 23(b). See Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977). In this case, the Van Slees seek to represent a class characterized by the requirements of Rule 23 (b)(3) (a "B-3 Class"). Here, the Court finds that the numerosity issue is dispositive and consequently only addresses that element.
To sue as a representative of a class, Rule 23 specifically requires that its members are "so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a). This is often referred to as "numerosity." See. e.g., Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998). The touchstone of the "numerosity" requirement, despite its shorthand name, is impracticality of joinder, not the size of the class. Several factors, including class size, underlie the impracticality inquiry. Generally, factors to be considered include geographic diversity of the proposed class members, Gaspar v. Linvatec, 167 F.R.D. 51, 57 (N.D. Ill. 1996), "the ease with which class members may be identified, the nature of the action, and the size of each plaintiff's claim." Fry v. UAL Corp., 136 F.R.D. 626, 630 (N.D. Ill. 1991). Nevertheless, size is important. See. e.g., Walco Investments. v. Thenen, 168 F.R.D. 315, 324 (S.D. Fla. 1996). Courts generally don't rely on factors other than size when the proposed class is small. See Ladegaard v. Hard Rock Concrete Cutters, Inc., No. 00 C 5755, 2000 WL 1774091, at *3 (N.D. Ill. Dec. 1, 2000) (citations omitted).
Impracticability, though, does not mean impossibility. See Herbert B. Newberg, Alba Conte, 1 Newberg on Class Actions § 3.03, p. 3-11 (citing cases) (3d ed. 1992).
The plaintiff bears the burden of showing class size and impracticability of joinder. While estimates of class size do not need to be exact see Vergara v. Hampton, 581 1281, 1284 (7th Cir. 1978) (citations omitted), they also may not be purely speculative. See Kohn v. Mucia, 776 F. Supp. 348, 352 (N.D. Ill. 1991) (citing Marcial, 880 F.2d at 954). To aid in determining class size, courts often rely on "common sense" in the absence of concrete proof of numerosity. See. e.g., National Organization for Women, Inc. v. Scheidler, 172 F.R.D. 351, 359 (N.D. Ill. 1987).
The Van Slees have not identified with much precision how many people make up the class that they seek to represent. To determine class size, they examined forty files that Don McCue produced during discovery. Those forty were but a fraction of the total files that Don McCue had for the class period. of those forty files, seven indicated that GMAC was the entity providing financing for the cars. According to the Van Slees, these files can be cross referenced with other documents that GMAC or Don McCue possesses to determine whether a particular customer was offered a cash rebate. The Van Slees extrapolate from this sample and conclude that there are roughly 300 members of their class. It is not at all clear, however, that their extrapolation is based on sound assumptions.
For unexplained reasons, the sample set included files covering a four-year period whereas the class only covers a one-year period.
The Van Slees' estimate of the class size assumes that the people whose files reflect a GMAC financing arrangement, also received a rebate offer similar to theirs. There are at least two problems with this assumption. First, the cross-referencing document shows that GMAC did not offer a cash rebate for one third or more of the vehicles listed. Thus the number that the Van Slees use could be reduced by at least a third assuming that each vehicle sold in identical proportions and even more if the most popular selling vehicles did not have rebates. Second, according to Don McCue, the offers shown in the cross-referencing document only applied for a limited period of time. The Van Slees have not disputed this. If these offers only encompassed a fraction of the class period, their estimate could be greatly exaggerated. This could be a significant reduction to the Van Slees' estimate because the sample draws files from a four-year period while their class period only extends one year.
The opposite could also be true. Namely, the least-popular vehicles could be the ones for which GMAC offers no rebate. On this record, though, it is impossible to tell.
Again, this is not necessarily true. The promotional rebates and financing arrangements could have spanned the entire class period. These documents simply do not indicate one way or another.
In sum, while there is some evidence that the class might be substantially large, the proof relies heavily on assumptions that may or may not be true. And, these transactions do not easily lend themselves to confirmation based on conventional wisdom or "common sense." The Court is reluctant, at this point, to certify a class when the number of potential class members remains fairly speculative. This is especially so when the potential class members are likely all from a discrete geographical area, making joinder off all interested parties less onerous. If the class members are as easily identified as the Van Slees suggest, further discovery ought to support or undermine their numerosity argument more precisely.
Conclusion
For the reasons stated in this memorandum opinion and order, the Court DENIES WITHOUT PREJUDICE the plaintiffs' motion for class certification.