ORDER GRANTING AMENDED MOTION FOR CLASS CERTIFICATION
Thе matter before me is plaintiffs Amended Motion for Class Certification [# 47]
I. JURISDICTION
I have jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction), and 15 U.S.C. § 1640(e) (Truth in Lending Act).
II. STANDARD OF REVIEW
Pursuant to Fed.R.Civ.P. 23(a), a class may be certified if the following requirements are met: (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 those of the class, and; (4) the representative parties will adequately protect the interests of the class. See Fed.R.CivP. 23(a).
If the requirements of Rule 23(a) are satisfied, then one of the alternative requirements outlined in Rule 23(b) also must be met. Plaintiff seeks class certification primarily under Rule 23(b)(3), which provides that the action may be maintainеd as a class action if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). Matters pertinent to the court’s inquiry under Rule 23(b)(3) include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.
Id.
Class certification is a matter committed to the discretion of the trial court. Anderson v. City of Albuquerque,
III. ANALYSIS
On February 24, 2009, plaintiff purchased a used car from defendant, which she financed through a Retail Installment Sales Contract (“RISC”). Although plaintiff was charged $189.20 for a government certificate . of title fees, the actual cost to file such documents was $17.20. Plaintiff contends that these overcharges (1) violate the Truth
Plaintiff seeks certification of a plaintiff class. I denied without prejudice plaintiffs previous motion for class certification on the ground that the then-proposed class definition was inappropriately vague and imprecise. (See Order Denying Without Prejudice Motion for Class Certification [# 45] entered May 19, 2010.) See also Anderson v. Merit Energy Co.,
A. CLASS DEFINITION
Although not mentioned specifically in Rule 23 itself, a prerequisite to class certification is an appropriate class definition. Stolz v. United Brotherhood of Carpenters & Joiners of America, Local Union No. 971,
All consumers who, in the State of Colorado, entered into Sale Contracts with the Defendant wherein the consumer was overcharged for statutory filing fees in excess of those permitted by the State of Colorado Department of Revenue.3
Defendant maintains that the proposed definition is inappropriate because plaintiff has failed to define a class with claims similar to hers, noting that 125 of the 516 individuals plaintiff has identified as having been overcharged for title filing fees did not enter into financing agreements with defendant at all, but rather paid cash. This assertion is true and apparently uncontested, but as the proposed class definition specifically contemplates that the class will consist of those who “entered into Sale Contracts,” individuals who did not finance are excluded from the proposed class in any event. Moreover, defendant does not explain how the potential claims of the remaining 391 putative plaintiffs who did finance their purchases are so substantially dissimilar from plaintiffs claim аs to undermine the proposed class definition.
With respect to plaintiffs state law claim for civil theft, defendant maintains that plaintiff “has neglected to address how the[ ] required elements of detrimental reliance and specific intent could be established on a class-wide basis[.]” Clearly, however, the misrepresentation sought to be relied on in this case was that contained in the RISC to the effect that the filing fees were greater than the actual cost to defendant. Nothing in the cases cited by defendant suggest that any more direct or personal statement is required to satisfy this element of a civil theft claim under Colorado law, as defendant’s argument implies. Defendant’s remaining arguments go to the merits of the civil theft claim, which are not appropriate for resolution on a motiоn for class certification, see Vallario v. Vandehey,
Although not noted in defendant’s response to the motion, plaintiffs proposed definition does not include a temporal limitation. See Vickers v. General Motors Corp.,
TILA provides that claims thereunder must be brought “within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). Claims for civil theft under Colorado law must be brought within two years. Michaelson v. Michaelson,
Thus, I conclude that the class should be defined as follows:
All consumers who, in the State of Colorado, entered into Sale Contracts with Spring Automotive Group LLC, on or after May 21, 2008, wherein the consumer was charged statutory filing fees in excess of those permitted by the State of Colorado Department of Revenue.
Having thus determined the appropriate class, I turn to the question whether this matter is, in fact, appropriate for treatment as a class.
B. RULE 23(a)
1. Numerosity.
Rule 23(a)(1) requires that a proposed class be so numerous that joinder of all members of the class is impracticable. There is no minimum numerical threshold that must be exceeded to satisfy this requirement. Rather, the nature of the particular ease and the nature of the proposed class are key considerations in determining whether joinder of all parties is impractical. See, e.g., Horn v. Associated Wholesale Grocers, Inc.,
Although dеfendant points out that 125 of the 516 individuals identified by plaintiff as having been overcharged for statutory filing fees did not enter into financing agreements and, therefore, have no TILA claims, it does not suggest why the remaining 391 individuals who are legitimately within the class definition are insufficiently numerous to justify class treatment. Joinder of that many people in an action such as this one, where the individual claims are relatively small in relation to the cost of litigation, clearly is not practical. Thus, I find that the numerosity requirement is satisfied with respect to the proposed class as I have redefined it.
2. Commonality and Typicality
Rule 23(a)(2) requires that the claims of members of a proposed class present “common questions of law or fact.” Complete identity of legal claims among class members is not required. Rather, this provision requires that there be two or more issues whose resolution will affect all or a significant number of the members of the proposed class. See Stewart v. Winter,
It is not difficult to find common factual and legal questions within a class of plaintiffs who all signed form contracts containing identical provisions. “Claims arising out of standard documents present a classic case for treatment as a class action.” Arenson v. Whitehall Convalescent and Nursing Home, Inc.,
A plaintiffs claim is typical of class claims if it challenges the same conduct that would be challenged by the class. See, e.g., Johnston v. HBO Film Management, Inc.,
Defеndant maintains also that plaintiffs claims are not typical because she failed to return the car within seven days, as required by an addendum to the RISC, to allow defendant to install a tracking device. Defendant argues that installation of the device was a condition precedent to the extension of credit, and, thus, plaintiffs financing contract was never consummated. I have already found this argumеnt insufficient to merit summary judgment in defendant’s favor on plaintiffs TILA claim, and, without passing on the merits specifically, it does not strike me as particularly compelling. Nevertheless, and although unique defenses may defeat a motion for class treatment if they are such that “the representative might devote time and effort to the defense at the expense of issues that are common and controlling fоr the class,” Beck v. Maximus, Inc.,
3. Adequacy of Representation
Rule 23(a)(4) requires that a proposed class representative adequately protect the interests of the class as a whole. This requirement is intended to ensure that the class representative has sufficient interests in common with the class that the representative will adequately assert and protect the interests of the class. The adequate representation requirement of Rule 23(a)(4) concerns both the competence of the class representative’s counsel and the representative’s willingness and ability to control the litiga
Defendant’s arguments against adequacy mimic those it advances in derogation of typicality, and fare no bettеr. Its arguments are insufficient to overcome the presumption in favor of a finding of adequacy. See Schwartz v. Celestial Seasonings, Inc.,
C. RULE 23(b)
As noted above, in addition to satisfying the requirements of Rule 23(a), a putative class action must meet also the requirements of at least one subsection of Rule 23(b). I conclude that Rule 23(b)(3) comprises the most appropriate classification for this case, and, therefore, do not consider plaintiffs alternative arguments under Rule 23(b)(1). Certifiсation of a class under Rule 23(b)(3) is appropriate if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).
Predominance focuses on the question of liability. Queen Uno Ltd. Partnership v. Coeur D’Alene Mines,
I find further that the class action form is superior in this instance for adjudicating these claims. There is no conflict of law issue to be resolved, as all the contracts at issue were consummated in Colorado. Cf. Matter of Rhone-Poulenc Rorer, Inc.,
As none of the remaining considerations specified in Rule 23(b)(3) are relevant, see Fed.R.Civ.P. 23(b)(3)(A)-(D), I find and conclude that the certification of a class in this case pursuant to Rule 23(b)(3) is appropriate and warranted.
D. RULE 23(g)
Under Rule 23(g), the court must appoint class counsel when a class is certified. Factors relevant to the appointment of class counsel are the work cоunsel has done in identifying or investigating potential claims in the action; counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; counsel’s knowledge of the applicable
The expertise and qualifications of proposed clаss counsel are set forth in the affidavits of Michael J. Kleinman and Richard Wynkoop (see Motion for Class Certification, App. Exh. 2[# 25], filed November 23, 2009), which I incorporate by reference. Based on counsel’s experience in the relevant areas of law, and the conduct of plaintiffs counsel to date in this case, I conclude that plaintiffs counsel satisfies the requirements outlined in Fed.R.Civ.P. 23(g). Plaintiffs сounsel is amply qualified to act as counsel for the class.
E. NOTICE
Under Rule 23(c)(2)(B), “the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort” when a class is certified under Rule 23(b)(3). I will direct plaintiff to file with the court a proposed form of notice to members of the class and to propose a method for directing the notice to the members of the class. After defendant has had an opportunity to respond to plaintiffs proposals, I will direct a form of notice and a method of notifying the members of the class.
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That plaintiffs Amended Motion for Class Certification [# 47], filed May 26, 2010, is GRANTED consistent with the foregoing findings and conclusion and the following orders;
2. That a plaintiff class is CERTIFIED and DEFINED as
All consumers who, in the State of Cоlorado, entered into Sale Contracts with Spring Automotive Group LLC, on or after May 21, 2008, wherein the consumer was charged statutory filing fees in excess of those permitted by the State of Colorado Department of Revenue;
3. That Michael Kleinman, Attorney at Law, and Richard Wynkoop, of Wynkoop & Thomas PC, are APPOINTED as counsel for the plaintiff class;
4. That on or before July 9, 2010, plaintiff SHALL FILE with the court a proposed form of notice to members of the class and a proposal for directing the notice to the members of the class, in compliance with Fed. R.Civ.P. 23(c)(2)(B);
5. That the deadlines for defendant to file a response to plaintiffs proposed notice and for the plaintiff to file a reply SHALL BE GOVERNED by D.C.COLO.LCivR 7.1 C.;
6. That the trial to the court, currently scheduled to commence on Monday, June 28, 2010, is VACATED and CONTINUED, pending furthеr order of the court; and
7. That a telephonic setting hearing conference, to reset the trial preparation conference and the trial to court, is SCHEDULED for June 30, 2010 at 10:00 a.m. (MDT); provided, furthermore, that counsel for plaintiff shall be responsible for coordinating the arrangements necessary to facilitate this conference call and initiating contact with the court’s Judicial Assistant, Ms. Susаn Schmitz, (303) 335-2350, on the appointed date and time.
Notes
. "[# 47]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s electronic case filing and management system (CM/ECF). I use this convention throughout this order.
. Although defendant attempts to reframe my reference to other "perceived infirmities” as going to matters beyond class definition, it is clear frоm my order that I referred only to the plaintiff's proposed definition of the class.
. Plaintiff does not appear to intend to include in her class definition any claims relating to the assessment of a "Group Buyer’s Fee,” which does not appear to be a statutory filing fee of any description and with respect to which the requirement of numerosity does not appear to be satisfied in any evеnt. I, therefore, do not intend to include such claims within the class.
. It appears that Colorado courts recognize a cause of action for civil theft for the alleged theft of money, see, e.g., Itin v. Ungar,