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Ung v. Universal Acceptance Corporation

United States District Court, D. Minnesota

January 24, 2017

Spencer Ung, Plaintiff,
Universal Acceptance Corporation, Defendant.

          Michael S. Hilicki, Keith J. Keogh, Keogh Law, Ltd., Chicago, Illinois, Peter F. Barry, Patrick J. Helwig, Barry & Helwig, LLC, Minneapolis, Minnesota, for Plaintiff.

          David L. Hartsell, Sarah A. Zielinski, McGuireWoods LLP, Chicago, Illinois, Burt M. Rublin, Philip N. Yannella, Daniel JT McKenna, Ballard Spahr LLP, Philadelphia, Pennsylvania, Patrick C. Summers, DeWitt, Mackall, Crounse & Moore, S.C., Minneapolis, Minnesota, for Defendant.


          RICHARD H. KYLE United States District Judge

         In this action, Plaintiff Spencer Ung alleges that Defendant Universal Acceptance Corporation (“Universal”) made unauthorized calls to his cell phone, in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. Presently before the Court is Ung's Motion for Class Certification. For the reasons that follow, the Court will deny the Motion.


         Universal is the financing arm of Interstate Auto Group, Inc., d/b/a CarHop (“CarHop”), an Edina, Minnesota company that sells used cars nationwide to people with poor or no credit. A person interested in purchasing a CarHop vehicle must submit a financing application listing credit references and the name of his or her landlord. This provides Universal with contact information for persons who could pass messages to the buyer if he or she fell behind on the vehicle's payments.

         The named plaintiff here, Spencer Ung, was one such individual whose contact information was provided by a car buyer. In 2013, Joseph Holley purchased a Kia Sorrento from a CarHop location in Crystal, Minnesota; he provided Ung's name and cell-phone number, listing Ung as his landlord. Holley eventually fell behind on his payments and Universal began placing calls to Ung. In total, it called him twelve times between June and October 2014. Ung eventually threatened Universal with suit if it did not stop calling.

         Ung carried through on his threat on February 9, 2015, commencing this putative class action alleging that all of the calls he received from Universal were made with an autodialer and without his consent, thereby transgressing the TCPA.[1] His Complaint seeks statutory damages for negligent (Count I) and willful (Count II) violations of the statute, as well as an injunction preventing Universal from making calls “in violation of the TCPA.” He has now moved for an order certifying the following class:

All persons in the United States to whose cellular telephone number [Universal] placed a non-emergency telephone call using the same software and/or equipment it used to call Plaintiff between July 1, 2012, and February 9, 2015, where the person was identified as a landlord or other reference in UAC's system.

         Universal opposes Ung's Motion, arguing class certification is inappropriate because, among other things, individualized issues predominate over questions common to the class.[2] The Motion has been thoroughly briefed and is ripe for disposition.


         Under the Federal Rules of Civil Procedure, “one or more members of a class may sue . . . as representative parties on behalf of all members.” Fed.R.Civ.P. 23(a). To do so, four requirements set forth in Rule 23(a), and at least one of three categories in Rule 23(b), must be satisfied. E.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) (“In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3).”). Rule 23(a) requires that (i) the class is so numerous that joinder of all members is impracticable, (ii) questions of law or fact are common to the class, (iii) the claims of the representative party are typical of the claims or defenses of the class, and (iv) the representative will fairly and adequately protect the class's interests. See Amchem, 521 U.S. at 613 (describing these as numerosity, commonality, typicality, and adequacy). Rule 23(b) requires inter alia that (i) the defendant have acted in a way applying generally to the class, such that “final injunctive relief . . . is appropriate respecting the class as a whole, ” or (ii) common questions of law or fact predominate over individual questions, making a class action superior “for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(2), (3); Amchem, 521 U.S. at 614-15.

         “In order to obtain class certification, [the named] plaintiff has the burden of showing that . . . the requirements of Rule 23 are met.” Coleman v. Watt, 40 F.3d 255, 258-59 (8th Cir. 1994). Because class actions are “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only, ” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011), the Court must undertake a “[r]igorous analysis” to determine whether Rule 23 has been satisfied, Powers v. Credit Mgmt. Servs., 776 F.3d 567, 570 (8th Cir. 2015), sometimes overlapping with an analysis of the merits of the plaintiff's claim, Dukes, 564 U.S. at 351.


         By Ung's reckoning, the instant Motion is easily resolved. He contends class certification “is normal in litigation under § 227 [of the TCPA]” (Reply at 1 (citing Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 998 (8th Cir. 2016)), and this is a “textbook case” for certification because the claims of “hundreds of thousands of class members” present common issues, since they “arise under the same law and stem from the same facts - namely, [Universal's] standard debt collection practice of using its computerized calling system to call non-debtor third parties on their cell phones” (Pl. Mem. at 1 (emphasis deleted)). He cites a bevy of TCPA cases certified as class actions and argues this case is ...

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