Class Certification Denied in Challenge to Credit Reporting to Tribal Payday Lenders (among others)

Here are the materials in Aleksic v. Clarity Services (N.D. Ill.):

An excerpt:

Moreover, even if the definition were narrowed, the class would still not be eligible for certification. To be certified, a class must satisfy all of the criteria of Federal Rule of Civil Procedure (“Rule”) 23(a), i.e., numerosity, commonality, typicality, and adequacy, and one of the criteria of Rule 23(b), here, “that the questions of law or fact common to class members predominate over any [individual] questions . . . , and . . . a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” See Fed. R. Civ. P. 23(a)(1)-(4), (b)(3). Assuming, arguendo, that the Rule 23(a) factors are met, plaintiff cannot satisfy Rule 23(b)(3) because individual issues predominate, including whether: (1) Clarity gave out any class member’s report “[i]n accordance with [his/her] written instructions,” as the FCRA permits, see 15 U.S.C. § 1681b(a)(2); (2) any or all of the lenders is a tribal entity, and thus, immune from state regulation, see Puyallup Tribe, Inc. v. Dep’t of Game of State of Wash. 433 U.S. 165, 172 (1977) (“Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe.”); see also Kiowa Tribe of Okla. Mfg. Tech., Inc., 523 U.S. 751, 756 (1998) (stating that “tribal immunity is a matter of federal law and is not subject to diminution by the States”); Cook v. AVI Casino Enters., Inc. 548 F.3d 718, 725 (9th Cir. 2008) (“[T]ribal corporations acting as an arm of the tribe enjoy the same sovereign immunity granted to a tribe itself.”); (3) Clarity was aware of any lender’s status as a tribal entity; and (4) the amount of damages, if any, suffered by each class member. Because these individual issues would dwarf any issues common to even the hypothetically-narrowed class, this is not an appropriate case for class certification.

And:

Contrary to plaintiff’s assertion, these principles survived Michigan v. Bay Mills Indian Cmty.,134 S. Ct. 2024 (2014) and Jackson v. Payday Financial, LLC, 764 F.3d 765 (7th Cir. 2014). Bay Mills held that individual Indian tribe members, but not “the Tribe itself,” can be sued for violations of state law committed “beyond reservation boundaries.” 134 S. Ct. at 2034-35. Jackson held that a tribal court did not have subject matter jurisdiction over state law claims asserted against a tribe member arising from conduct committed off reservation land. 764 F.3d at 772-82.

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