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Gant vs. O’Conner Chevrolet, Inc – Other Consumer Issues

Gant vs. O’Connor Chevrolet, Inc

98 C 6515

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

ILLINOIS

1999 U.S. Dist. LEXIS 17357

September 3, 1999, Decided

September 9, 1999, Date Docketed

DISPOSITION: [*1] Plaintiff’s motion for class certification granted.

COUNSEL: For Defendant: Bryan W. Luce, Dale L. Schlafer, Peter R. Mennella, KIESLER & BERMAN, James J. Roche, Janet L. Adams, W. Matthew Bryant, Steven L. Satter, JAMES J. ROCHE & ASSOCIATES, Chicago, IL.

For Plaintiff: Daniel A. Edelman, Cathleen M. Combs, James O. Latturner, Jeffrey S. Sell, EDLEMAN, COMBS & LATTURNER, Chicago, Illinois.

JUDGES: Matthew F. Kennelly.

OPINIONBY: Matthew F. Kennelly

OPINION: ORDER

Plaintiff Kawana Gant alleges that in October 1997, she purchased a car from defendant O’Connor Chevrolet pursuant to a retail installment contract which was then assigned to defendant Evergreen Finance Company. She purchased an extended warranty for which she was charged $ 680 which was included in the amount financed. This amount was identified as having been “paid to others.” Plaintiff alleges that this is untrue and that in fact O’Connor kept a portion of the $ 680 for itself. Plaintiff claims that the disclosure was misleading and violated the Truth in Lending Act (TILA) and in the Illinois Consumer Fraud Act (ICFA). She says that if she had known that the actual warranty premium was lower, she could have negotiated a lower [*2] price. Plaintiff also makes other claims that are not implicated in the present motion.

Plaintiff has moved to certify a class as to Counts 1 and 2 consisting of persons who: purchased vehicles from O’Connor Chevrolet; in connection therewith purchased a service contract or extended warranty; financed the transaction by a retail installment contract; had their transaction documented as a consumer transaction; had contracts which stated that an amount was paid to a third party on account of the service contract or extended warranty that differed from the amount that the third party collected; and whose contract was assigned to Evergreen. For purposes of Count 1, the TILA claim, the class includes those whose contract is dated on or after October 16, 1998. For purposes of Count 2, the ICFA claim, the class includes those whose contract is dated on or after October 16, 1995.

Several other judges in this district, including the judge to whom this case was originally assigned, have certified classes in one form or another in similar cases. See, e.g., Slawson v. Currie Motors Lincoln Mercury, Inc., No. 94 C 2177, 1995 U.S. Dist. LEXIS 451 (N.D. Ill. Jan. 13, 1995) (Holderman, [*3] J.); McPhan v. Gibson Chevrolet, Inc., No. 95 C 6077, 1996 U.S. Dist. LEXIS 17678 (N.D. Ill. Nov. 21, 1996) (Nordberg, J.); Alexander v. Continental Motor Werks, Inc., No. 95 C 5828, 1996 U.S. Dist. LEXIS 1849 (N.D. Ill. Feb. 16, 1996) (Kocoras, J.); Cox v. Joe Rizza Ford, Inc., 1996 U.S. Dist. LEXIS 1581 (N.D. Ill. Feb. 8, 1996) (Manning, J.). The Court agrees with the reasoning in those cases and finds that the proposed classes meet the four requirements of Fed. R. Civ. P. 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. The Court further finds pursuant to Fed. R. Civ. P. 23(b)(3) that questions of law or fact common to the members of the classes 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 because, among other reasons, individual actions would be cost prohibitive. The Court acknowledges defendant’s argument that to the extent individualized damages are sought (as opposed to, for example, statutory damages under TILA), individual issues might exist, [*4] but we do not believe at the present time that such issues predominate over questions common to all class members. This analysis conceivably may change depending upon the damage theory pursued by the plaintiffs, and if so the Court will entertain a request to decertify the class as to damage issues.

For the foregoing reasons, plaintiff’s motion for class certification is granted. This cause is set for status on September 28, 1999 at 9:30 a.m. By September 26, 1999, the parties are to submit to the Court an agreed proposed form of class notice to the Court. If the parties cannot agree on a form of notice, they should submit alternative proposals by that same date.