rejected in Gilmore II, 2001 WL 1539157 at *4. However, on the
present motion, this issue must be considered in light of the
additional evidence that has been disclosed in discovery since
the time of the Gilmore If ruling. As was held in Gilmore II,
2001 WL 1539157 at *2, "the court has an independent duty to
scrutinize the appropriateness of class certification; the court
is not limited to arguments made by a party opposing
certification." If there is pertinent evidence that defendant
failed to or could not present previously, this court will not
ignore it. Similarly, possible issues regarding communications
with some customers, see id. at *5, may have to be reconsidered
in light of additional evidence (provided by named plaintiff
that a large number of customers did contact defendant to
question the Fee.

As to numerosity, named plaintiff provides information
about defendant's customer base that indicates the putative class
probably numbers in the thousands. With his "rejoinder" brief,
named plaintiff also provides an affidavit of defendant's former
director of corporate sales who estimates that, at the time the
Fee was being imposed, there were 120,000 to 180,000 corporate
account holders. He also estimates that approximately 25% of
them complained about the Fee and that the Fee was not charged to
approximately 75% of those who complained. If the Fee was not

imposed on a particular customer, he or she would not be an


395 (N.D. Ill. 1999); Honorable v. The Basy Life Real Estate

System, Inc., 182 F.R.D. 553, 560 (N.D. Ill. 1998). The fear is
that the named plaintiff may become distracted by the aspect of
his or her claim that is unique to the named plaintiff. Cohn,

628 F.2d at 1199; Koos, 496 F.2d at 1165; Danis, 189 F.R.D.

at 395. The merits of the issue unique to the named plaintiff
generally are not to be resolved in ruling on class
certification. It is sufficient that it is arguable that the
named plaintiff's individual claim would be defeated. Koos, 496

F.2d at 1164; Cohn, 628 F.2d at 998-99; Miller, 202 F.R.D. at

249. Still, class certification will only be defeated if the
unique and arguably dispositive issue is likely to distract the
named plaintiff because it is predictable that the issue will
usurp a significant portion of the named plaintiff's time and
energy. Koos, 496 F.2d at 1164-65; Cohn, 628 F.2d at 999; Danis,
189 F.R.D. at 395; Miller, 202 F.R.D. at 250; Honorable, 182
F.R.D. at 560.

Whether Gilmore was in a contractual relationship with
defendant, or possibly has a claim as a third-party beneficiary,
is an issue that may go to his standing to sue defendant. A
named plaintiff who lacks standing to sue is not an appropriate

class representative. See Walters v. Edgar, 163 F.3d 430, 432

(7th Cir. 1998); Ball v. Nationscredit Financial Services Corp.,

207 B.R. 869, 870 n.1 (N.D. T1ll. 1997); Katz v. Comdisco, Inc.,



the company. The initial contract lists Weigand "attn: name or
c/o" Meridian Leasing (Weigand's employer), but with the billing
address being Gilmore's residence. The provision just above the
signature line grants permission to check Weigand's and the
company's credit and states: "I am making this application IN MY
INDIVIDUAL CAPACITY AND ON BEHALF OF THE ENTITY I REPRESENT, IF
ANY, . . . ." Most of the terms of the contract are on the
reverse side. All that has been found is a copy of the front
side of the contract Weigand signed. However, defendant provides
a blank copy of the contract form it used in 1993, which includes
a provision that the contract could not be assigned to another
customer without the express, prior written consent of defendant.
No document confirming an assignment has been provided.

Although the contract was in Weigand's name, from the
beginning the bills were addressed to "Linda Weigand/Meridian
Leasing, attn Bruce Gillmore [sic]," at Gilmore's home address.
The bills were paid by Gilmore. That continued to be the
situation as of April 1995 when the Fee was first imposed. In
1996, when Gilmore moved to a new residence, the bills continued
to be addressed to Weigand/Meridian Leasing, attn: Gillmore at
Gilmore's new home address. Beginning in September 1998, the
bills were addressed to:

Linda Weigan/Meridian Leasing

Bank 1 Investment Management G
atn:Charles W. Tramel,IL1-4240


appropriate member of the class. Therefore the class is
estimated to include approximately 97,500 to 146,250 customers.‘
Clearly the class is large enough to satisfy the numerosity
requirement.

Defendant raises the question of when Gilmore was
actually a customer and if he is the appropriate party in
interest regarding the account underlying his individual claim.
The parties have provided Gilmore's deposition testimony, billing
records for the pertinent cellular service account he used, and
certain contracts for the cellular service. The account at issue
was opened in October 1993. The contract was signed by Linda
Weigand, who is Gilmore's sister-in-law. From the beginning,
however, the cellular telephone was used by Gilmore. Gilmore
testified that Weigand obtained the telephone for him or his wife
and told them that it was obtained through a plan that allowed
telephones to be obtained for employees of Weigand's company and
their relatives. No documents are provided to verify the terms
of the promotion, including whether it was limited to telephones
for employees or whether it permitted telephones to be provided
to relatives. It appears that the telephones could be issued

directly to individuals, not just to the individual on behalf of

*The affidavit refers to "corporate account holders." It
is unclear whether a single corporate account could include
multiple customers. Nor is it clear whether a significant number
of customers had more than one account.


The evidence indicates that Gilmore (or his immediate
family) were always the ones using the pertinent cellular
service, not Weigand. The bills were apparently paid out of
Gilmore's funds. A question exists, however, as to whether
Gilmore is the appropriate party in interest for any breach of
contract or fraud claim related to the account. Arguably, as the
one who signed the contract, Weigand was the real party in
interest until Gilmore signed a contract in 2001, or at least
until December 1999 when the name on the account was changed to
Gilmore. Gilmore contends he was the de facto account holder
from the beginning and therefore the proper party in interest
from the beginning. To the extent the contract prohibited an
assignment without defendant's express, written approval, Gilmore
contends defendant has waived any such contention by acquiescing
in the assignment, but this position is far from clear.

Where the named plaintiff's claim may fail on grounds
unique to the named plaintiff or a small subset of the plaintiff
class, the typicality requirement for class certification may not
be satisfied. Koos v. First National Bank of Peoria, 496 F.2d

1162, 1164-65 (7th Cir. 1974); Hardy v. City Optical Inc.,

39 F.3d 765, 770 (7th Cir. 1994); JH. Cohn & Co. v. American

Appraisal Associates, Inc., 628 F.2d 994, 998-99 (7th Cir. 1980);

Miller v. Spring Valley Properties, 202 F.R.D. 244, 249-50 (C.D.

Ill. 2001); Danis v. USN Communications, Inc., 189 F.R.D. 391,



ww 2
Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge SITTING JUDGE IF
. or Magistrate Judge WILLIAM T. HART OTHER THAN
ASSIGNED JUDGE
CASE NUMBER 01 C 2900 DATE APRIL 5, 2002
CASE BRUCE GILMORE, etc. vy. SOUTHWESTERN BELL MOBILE SYSTEMS, L.L.C.
TITLE

IIn the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented. }

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]}

(2) o Brief in support of motion due

(3) Qa Answer brief to motion due, . Reply to answer brief due.

(4) o Ruling/Hearingon__setfor___ at :

()) a Status hearing set for May 1, 2002 at 11:00 a.m.

(6) Oo Pretrial conferencefheld/continued to] [set for/re-set for}on___——s set for at
(7) Q Triai[set for/re-set for] on at

(8) Oo (Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) O General Rule 21 O FRCP41(a)(1) © FRCP41(a)(2).

(10) @ = [Other docket entry]
Plaintiffs renewed motion for class certification [26-1] is denied.

(11) [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document

‘ Number.

No notices required. number of notices,

V | Notices mailed by judge’s staff. APR 08 200?

Notified counsel by telephone. dage docketed

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge

courtroom
ow deputy’s f
initials

Date/time received in mn
central Clerk’s Office salting initia,

V



May 1, 2002 at 11:00 a.m. At that time, plaintiff's previously
filed motion to compel discovery will be considered.

IT IS THEREFORE ORDERED that named plaintiff's renewed
motion for class certification [26-1] is denied. Status hearing

set for May 1, 2002 at 11:00 a.m.
ENTER:

WLoimn T Let

UNITED STATES DISTRICT JUDGE

DATED: APRIL 5 , 2002

-1l1-


117 F.R.D. 403, 407 (N.D. Ill. 1987). Where a named plaintiff
loses standing after the case is filed, he or she may be replaced
by a member of the putative class, either before or after the

case is certified as a class action. County of Riverside v.

McLaughlin, 500 U.S. 44, 51-52 (1991); Walters, 163 F.2d at 432.
However, even though the named plaintiff may be replaced after
the suit is filed, there is no case to begin with if the named
plaintiff lacked standing at the time the case was initially
filed. Walters, 163 F.3d at 432-33. Therefore, whether named
plaintiff had standing at the commencement of this suit is a
crucial issue. In the present case, a substantial issue exists
as to whether Gilmore had standing to bring his individual
claims. Named plaintiff does not cite any case law clearly
establishing that the facts before the court support that he has
standing. It is probable that the issue of standing will be a
substantial issue that will take up significant time. Therefore,
it is inappropriate to certify a class with Gilmore as the class
representative. Cf. Katz, 117 F.R.D. at 407.

It is found that Gilmore is not a typical and
adequate class representative.® The renewed motion for class

certification will be denied. A status hearing will be held on

*No opinion is expressed as to whether class counsel is
adequate or whether the predominance requirement of Rule 23(b) (3)
would be satisfied.

- 10-


at Bank 1 Investment Management's address. Tramel was Gilmore's
accountant. During this time period, the bills were being
processed by Tramel's office, but paid out of funds belonging to
Gilmore that Tramel managed.® As of December 1999, the bills
were being sent in Gilmore's name only (correctly spelled) at his
home address.

In January 1998, Weigand signed an addendum to the
contract for the pertinent cellular service account. A new
telephone was issued and Weigand agreed to a 36-month extension
of the term of the contract. The customer name on the addendum
was "Linda Weigan [sic]." In March 2001, Gilmore himself signed
an addendum to the contract, extending the contract for 24
additional months, obtaining a new telephone, and selecting a new
rate plan.

From 1993 through at least 2001, the same telephone
number was assigned to the pertinent cellular service account.
From April 1995 through February 26, 2001, the pertinent account
was charged the Fee. When Gilmore signed a new contract in March
2001, he switched to a “home” rate plan effective at the
beginning of the then-current billing period, February 27, 2001.

The disputed Fee was not charged under that plan.

5Gilmore testified that he is uncertain as to the precise
nature of the funds. It may have been paid out of a trust for
which Gilmore is the beneficiary, but he did not know the
particular arrangement.


23(a) (2) and the typicality requirement of Rule 23(a)(3) were
Satisfied. Gilmore II, 2001 WL 1539157 at *4-5. No opinion was
expressed as to whether the predominance requirement of Rule
23(b) (3) was satisfied. Since it was possible that numerosity
and adequacy of representation could be shown, named plaintiff
was provided with a further opportunity to show that the case is
appropriate for class certification. See id. at *6. In
Gilmore II, it was also held that any possible class had to be
limited to those customers of defendant who had a corporate
account before the Fee was imposed in April 1995 and continued
to have the account after the Fee was imposed.* See id. at *4.
Named plaintiff has renewed his motion for class certification.
In response to the renewed motion for class certifica-
tion, defendant again contends that Gilmore is an atypical and
inadequate representative because of questions regarding Gilmore
acquiring the account. Previously, defendant contended the
account had been opened by someone else, but did not dispute that
the account had been assigned to Gilmore prior to April 1995.
Now, defendant contends Gilmore did not have cellular service in
his name prior to April 1995. Gilmore contends this issue cannot

be raised at this time because it was already considered and

3In light of current evidence that defendant did not
charge the Fee to many customers who complained about it, the
definition would have to be further clarified to include only
those continuing customers who actually paid the Fee.


("Gilmore II"). Defendant first imposed the Fee in April 1995
bills. It is claimed that defendant breached the parties'
contract by unilaterally raising the rate for cellular telephone
use by charging the Fee without providing any additional
services. It is also claimed defendant used fraud and deception
in adding the Fee to its charges for cellular telephone service.
Gilmore II, 2001 WL 1539157 at *9, left open the question of
whether these two claims should be considered § 201(b) claims
based on unjust or unreasonable practices or charges or are
instead contract and fraud claims under federal common law. It
is also claimed that the Fee constitutes rate discrimination in
violation of § 202(a) in that noncorporate customers were not
charged the Fee.?

In Gilmore II, class certification was denied in that
named plaintiff did not show numerosity, see id. at *3, or that
he was an adequate class representative, particularly in that he
failed to show the qualifications of his counsel, see id. at *5.
It was not found that these two requirements could not be
satisfied, only that named plaintiff had failed to meet his
burden of providing support showing they were satisfied. It was

found that the commonality requirement of Fed. R. Civ. P.

2In his class certification briefs, named plaintiff also
indicates that he contends there was unlawful rate discrimination
in that many customers who sufficiently objected were not charged
the Fee.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BRUCE GILMORE, individually and
on behalf of all other people
similarly situated,

Db:

APR g 2002

Plaintiff,

v. No. 01 C 2900

SOUTHWESTERN BELL MOBILE
SYSTEMS, L.L.C., a Delaware
limited liability company,

Defendant.

MEMORANDUM OPINION AND ORDER

In this case, named plaintiff Bruce Gilmore alleges, on
behalf of himself and a putative class, that defendant
Southwestern Bell Mobile Systems, L.L.C.? has violated the
Federal Communications Act ("FCA"), specifically 47 U.S.C. §§ 201
and 202, by charging an allegedly improper "Corporate Account
Administration Fee" (the "Fee") for cellular telephone services
that it provides. It has previously been held that named
plaintiff sufficiently alleges a grounds for relief on his FCA

claims. See Gilmore v. Southwestern Bell Mobile Bell Systems,

L.L.c., 2001 WL 1539157 *6-10 (N.D. Ill. Nov. 30, 2001

‘Defendant presently does business as Cingular Wireless.
It formerly did business as Cellular One of Illinois.