MEMORANDUM-DECISION and ORDER
Presently before the Court is a Motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure, filed by Plaintiff Heidi Seekamp ("Plaintiff") on February 3, 2011. Dkt. No. 61 ("Motion"). On March 1, 2011, Defendants filed an Opposition to the Motion, and the Fuccillo Defendants also filed a Cross-Motion for summary judgment in their favor. Dkt. No. 63 ("Opposition" and "Cross-Motion"). For the reasons that follow, the Court grants Plaintiff's Motion and denies Defendants' Cross-Motion without prejudice to re-file following notice to the class members.
The Court presumes familiarity with the factual allegations that form the basis for this action, as set forth in the Court's Memorandum-Decision and Order denying Defendants' Motion to dismiss Plaintiff's Complaint and ordering Plaintiff to submit a motion for class certification on March 15, 2010. Seekamp v. Fuccillo Automotive Grp., Inc., No. 1:09-CV-00018, 2010 WL 980581 (N.D.N.Y. Mar. 15, 2010) (Kahn, J.). Plaintiff's claims stem from the Fuccillo Defendants' sale to consumers, until some time in 2007, of an "Anti-Theft Security Discount" ("ATSD") for $295.00. The ATSD policies were issued by Defendant Universal.
On December 22, 2010, United States Magistrate Judge David R. Homer issued a Memorandum-Decision and Order granting Plaintiff leave to file an amended complaint to add additional parties. Dkt. No. 53. Plaintiff then filed the present Amended Complaint on January 7, 2011, adding numerous Fuccillo Defendants. Dkt. No. 56 ("Amended Complaint"). Plaintiff's Amended Complaint raises allegations of deceptive business practice in violation of New York General Business Law § 349, unlawful sale of illegal insurance contracts under New York Insurance Law § 1102, consumer fraud in violation of New York common law, breach of contract, and unjust enrichment. Id. ¶¶ 40-70, 77-88. The Amended Complaint also includes a claim for breach of fiduciary duty as to the Fuccillo Defendants. Id. ¶¶ 71-76.
Plaintiff asks the Court to certify as a class, pursuant to Rule 23 of the Federal Rules of Civil Procedure, "[a]ll Consumers who purchased the ATSD from any of the Fuccillo dealerships from January 7, 2003 to the present," excluding "any defendants, their respective parents, employees, subsidiaries and affiliates, their alleged co-conspirators and all government entities."*fn2 Plaintiff's Memorandum of law in support of motion for class certification (Dkt. No. 61-1) ("Pl.'s Mem.") at 5. Rule 23 class actions are designed to promote efficiency and economy of litigation, and to preserve small claims through aggregation without sacrificing procedural fairness or unfairness. Amchem Prods. v. Windsor, 521 U.S. 591, 614 (1997); Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553 (1974); Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 560 (2d Cir. 1968) ("[C]lass suit both eliminates the possibility of repetitious litigation and provides small claimants with a method of obtaining redress for claims which would otherwise be too small to warrant individual litigation.").
Rule 23(a) lists four prerequisites for class certification: "(1) numerosity (a 'class [so large] that joinder of all members is impracticable'); (2) commonality ('questions of law or fact common to the class'); (3) typicality (named parties' claims or defenses 'are typical . . . of the class'); and (4) adequacy of representation (representatives 'will fairly and adequately protect the interests of the class')." Amchem, 521 U.S. at 613 (quoting FED. R. CIV. P. 23(a)). And, assuming the prerequisites for class certification are met, a class action may be maintained only if at least one subsection of Rule 23(b) is satisfied. See FED. R. CIV. P. 23(b); Amchem, 521 U.S. at 614; In re Simon II Litig., 407 F.3d 125, 132 (2d Cir. 2005).
Throughout this analysis, a court's determination as to whether the requirements for class certification are met involves mixed questions of fact and law and may require the court to resolve factual disputes that implicate merits issues. In re Initial Public Offerings Securities Litig., 471 F.3d 24, 40-41 (2d Cir. 2006) ("In re IPO"). To the extent that such overlap occurs, a district court must reach those issues before certifying a class pursuant to Rule 23. Id. While the Court will undertake a rigorous analysis to determine if the prerequisites have been satisfied, a motion for class certification does not require the Court to consider the merits of the case. Id. Further, "courts are implored to construe liberally the Rule 23 requirements." LaFlamme v. Carpenters Local No. 370 Pension Plan, 212 F.R.D. 448, 452 (N.D.N.Y. 2003) (citing Eisen, 391 F.2d at 563).
Finally, a plaintiff seeking certification bears the burden of demonstrating, by a preponderance of the evidence, that the Rule 23 prerequisites are met. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982) (class action "may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied"); In re IPO, 471 F.3d at 40-41; Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008) ("preponderance of the evidence standard applies to evidence proffered to establish Rule 23's requirements"). "Though the plaintiff, as the party seeking class certification, bears the burden of proof in demonstrating that the requirements have been met, he is not required to make an extensive evidentiary showing" in order for the court to certify a class. LaFlamme, 212 F.R.D. at 452 (citing Caridad, 191 F.3d at 291; Follette v. Vitanza, 658 F. Supp. 492, 505 (N.D.N.Y. 1987), vacated on other grounds, Follette v. Cooper, 671 F. Supp. 1362 (N.D.N.Y. 1987)).
A. Rule 23(a) Prerequisites
Rule 23(a)(1) requires that the prospective class be so large that joinder of all members is "impracticable," though not necessarily impossible. FED. R. CIV. P. 23(a)(1); Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). In the Second Circuit, "numerosity is presumed at a level of 40 members." Consol. Rail Corp. v. Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). A plaintiff need not determine the precise number or identity of potential class members to meet the numerosity requirement, but must offer some evidence supporting a reasonable estimate of the number of potential class members. Robidoux, 987 F.2d at 935.
Defendants do not dispute that the prerequisite of numerosity is satisfied in this case. The record indicates that the Fuccillo Defendants sold thousands of ATSDs to customers between 2006 and 2007 alone. See Bruce Lewis Aff. Ex. D. (Dkt. No. 63-17) at ¶¶ 2-3. Therefore, the Court finds that Plaintiff has satisfied the numerosity prerequisite in this case.
2. Commonality and Typicality
The commonality and typicality requirements tend to merge into one another, as both seek to ensure that the named plaintiffs' claims are closely interrelated to those of the class. Marisol A. by Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997). Commonality exists if a plaintiff's claim shares a common question of fact or law with those of the class. Id. The typicality requirement, on the other hand, is satisfied when each class member's claim arises from the same course of events, and each class member will make similar arguments to prove a defendant's liability. Id. The claims of the named plaintiffs need not be identical with those of each class member. Marriott v. County of Montgomery, 227 F.R.D. 159, 172 (N.D.N.Y. 2005). "In short, the test for typicality is not demanding." Pyke v. Cuomo, 209 F.R.D. 33, 42 (N.D.N.Y. 2002) (quotations and citations omitted).
Defendants argue that Plaintiff fails to satisfy the commonality and typicality requirements because "there are myriad possible reasons for a plaintiff to purchase an anti-theft deterrent for [his or her] new automobile." Defendants' Memorandum of law in opposition to Plaintiff's motion for class certification (Dkt. No. 63) ("Defs.' Mem.") at 10. In further support of this contention, Defendants point to Plaintiff's testimony that: (1) the employees with whom she spoke prior to purchasing the ATSD told her that it was insurance; and (2) Plaintiff's decision to purchase the ATSD was based not on the employees' representations to her, but on the advice of her son. Id. at 13-14. Defendants therefore claim that commonality and typicality are not present because, "as is the case with [P]laintiff here, a purchaser could be completely indifferent to the alleged misrepresentation, and could choose to purchase the ATSD for no other reason than a companion recommended she do so." Id.
To the contrary, the Court finds that Plaintiff has met her burden to satisfy these prerequisites here. Plaintiff is not required to demonstrate that the putative class members had identical motivations to purchase an ATSD from Defendants. Indeed, Plaintiff acknowledges that "[i]t is unlikely that the typical ATSD purchasing consumer" specifically relied upon Fuccillo Defendants' statements as to whether the ATSD was insurance or a warranty. Plaintiff's Memorandum of law in further support of class certification and in opposition to cross-motion for summary judgment (Dkt. No. 69) ("Pl.'s Reply Mem.") at 5. Plaintiff and the proposed class members undoubtedly had different conversations with the Fuccillo Defendants' employees, or even with third parties, about the prudence of purchasing an ATSD prior to paying $295.00 for it. But such a fact is insufficient to preclude certification in this case; to hold otherwise "would turn the commonality requirement on its head by making it impossible to certify a class if any individualized issue existed." Jermyn v. Best Buy Stores, L.P., 256 F.R.D. 418, 429-30 (S.D.N.Y. 2009) ("Jermyn I") (emphasis in original); see also Jermyn v. Best Buy Stores, L.P., 276 F.R.D. 167, 172 (S.D.N.Y. 2011) ("Jermyn II") ("In the deceptive business practice context [in Rule 23 cases] . . . plaintiffs' [New York General Business Law] claims do not necessarily depend on any specific motivation."); Prostic v. Xerox Corp., Civ. No. B-90-113, 1991 WL 206770, at *3 (D. Conn. July 19, 1991) (plaintiff's "derivative reliance" on his investment manager in deciding to purchase stock did not render his claim atypical for purposes of certifying class in securities fraud action).
As to the commonality requirement, Plaintiff alleges that "each and every purchaser of an ATSD from Fuccillo Defendants believed that the product was both legal and beneficial." Pl.'s Reply Mem. at 5. Plaintiff further claims that she and the other putative class members purchased the same ATSDs from Defendants on the basis of this belief, and that Defendants' alleged representations of the ATSDs' legality and beneficialness give rise to the subject matter of this litigation. As a result, Plaintiff's claims and those of the proposed class members share several common questions of law and fact to satisfy the commonality requirement, including:
(1) Whether the ATSDs constitute "insurance" under New York insurance law;
(2) Whether Defendants' sale of the ATSDs to consumers constituted deceptive business practice in violation of New York General Business Law § 349;
(3) whether the sale of ASTDs gave rise to a fiduciary relationship between Defendants and the proposed class members;
(4) whether Defendants were unjustly enriched by the sales of the ATSDs; and
(5) whether the ATSDs are void ab initio as illegal contracts under New York contract law. Determination of these claims' "truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, __; 131 S. Ct. 2541, 2551 (2011); see also Wu v. Pearson Educ., Inc., Nos. 09 Civ. 6557, 10 Civ. 6537, 2011WL 4526078, at *6 (S.D.N.Y. Sept. 30, 2011) ("[C]laims arising from interpretations of a form contract appear to present the classic case for treatment as a class action, and breach of contract cases are routinely certified as such.") (quoting Steinberg v. Nationwide Mut. Ins. Co., 224 F.R.D. 67, 74 (E.D.N.Y. 2004) (finding commonality where all putative class members had entered into "substantively identical or similar form agreements" with defendant)). The Court therefore concludes that Plaintiff has satisfied the commonality requirement in this case.
For similar reasons, Plaintiff's claims also meet the typicality prerequisite of Rule 23(a). Plaintiff's claims arise from the same conduct that gives rise to the proposed class claims: namely, the sale of an allegedly illegal insurance product from which the consumer received no benefit. Defendants also will presumably assert identical defenses to those claims: that the ATSDs were warranties and not insurance, that the sale of them was not deceptive, and that the class members were not harmed as a result of Defendants' conduct. Plaintiff thus has satisfied both the commonality and typicality requirements set forth in Rule 23(a). See Robidoux, 987 F.2d at 936-37 ("When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying the ...