under Rule 23(b)(3) because court would first have to determine whether each member exhausted
administrative remedies and then analyze whether the defendants properly denied each member’s
claim). Neither of these cases stand for the proposition that individual issues regarding damages
preclude certification under Rule 23(b)(3). Indeed, Hylaszek states that “[c]ommon questions of law
or fact will predominate when there is a common course of conduct that leads to injury of all the
class members.” Hylaszek, 1998 WL 381064, at *3. There is considerable support for the plaintiffs’
position that the possibility of individual damages inquiries is generally not enough to defeat class
certification. Williams v. Rizza Chevrolet-Geo, Inc., No. 99 C 2294, 2000 WL 263731, at *3 (N.D.
Ill. Mar. 6, 2000); Abt v. Mazda Am. Credit, No. 98 C 2931, 1999 WL 350738, at *2 (N.D. Ill. May
19, 1999); Wilson v. Tinicum Township, No. Civ. A. 92-6617, 1993 WL 280205, at *8 (E.D. Pa. July
20, 1993) (holding that “‘individual proof of damages does not preclude certification of a class under
Rule 23(b)(3) where common issues of liability predominate”) (quoting Kromnick v. State Farm
Ins. Co., 112 F.R.D. 124, 127 (E.D. Pa. 1986)). The City engaged in a common course of conduct
when it enforced the panhandling ordinance—the constitutionality of which is the most significant
aspect of this case. The difficulties in the management of this class action are likely to arise (if at
all) only with respect to damages. Any such difficulties can be dealt with by using subclasses or
bifurcation. See Rahim, 2001 WL 1263493, at *16. Accordingly, the Court concludes that issues
common to the members of the class predominate over any questions affecting only individual
members, See 7A Charles Alan Wright, et al., Federal Practice and Procedure § 1778, at 528 (2d
ed. 1986) (stating that “[w]hen common questions represent a significant aspect of the case and they
can be resolved for all members of the class in a single adjudication, there is a clear justification for

having the dispute on a representative rather than on an individual basis”).

-13-


Accordingly, the Court recommended that the District Court deny the City’s motion to dismiss as
moot the plaintiffs’ motion for injunctive relief. Jd., at *8. Less than a week later, the City repealed
the panhandling ordinance and then filed a second motion to dismiss as moot the plaintiffs’ motion
for a preliminary injunction. Based on the repeal of the ordinance and because the record contained
no evidence that the City intended to reenact that ordinance, the Court recommended that the District
Court dismiss as moot the plaintiffs’ claim for injunctive relief. Thompson v. City of Chicago, No.
01 C 6916, 2002 U.S. Dist. LEXIS 8069, at *12 (N.D. Ill. May 3, 2002). Ifthe District Court adopts
that recommendation, the Court recommends that the District Court dismiss as moot the portion of
the plaintiffs’ current motion that seeks to certify a class for injunctive relief.
Il. Proposed Class for Monetary Relief

The plaintiffs move the Court to certify the following class under Federal Rule of Civil
Procedure 23(b)(3):

All persons who, during the Class Period, have been ticketed, arrested and/or jailed

pursuant to Section 8-4-010(f) of the Chicago Municipal Code for panhandling on

the public fora in Chicago and those persons who may in the future be ticketed,

arrested or jailed pursuant to Section 8-4-010(f) of the Chicago Municipal Code for

panhandling on the public fora in Chicago.
The putative class representatives (hereinafter referred to as “the plaintiffs”) bear the burden of
establishing that all of the requirements for class certification are satisfied. Retired Chicago Police
Ass'n y. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). The plaintiffs must establish that (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 the

claims or defenses of the class, and (4) the representative parties will fairly and adequately protect

the interests of the class. Fed. R. Civ. P. 23(a). In order to certify a class under Federal Rule of Civil

4.


1. Adequacy of Counsel

The Court concludes that the plaintiffs’ attorneys can fairly and adequately protect the
interests of the class. The City argues that the plaintiffs have not established that their attorneys are
capable of conducting this class action. The City is correct that the plaintiff's initial motion does not
contain any evidence of the lawyers’ experience and qualifications. Attached to the plaintiffs’ reply
brief, however, are affidavits from the plaintiffs’ attorneys that summarize their qualifications and
relevant experience. These affidavits establish the following: (1) Attorney Thomas G. Morrissey is
an experienced civil-rights attorney who has tried over nineteen jury cases in federal court and has
acted as lead counsel in several civil rights class-action lawsuits; (2) Attorney Gary S. Caplan, a
partner at the Chicago law firm Sachnoff & Weaver, has substantial class-action experience (over
twenty class-action cases in the last thirteen years), as well as access to the resources of a large law
firm; and (3) Attorney Mark G. Weinberg, a lawyer at Freed & Weiss—a law firm that specializes
in consumer-fraud class-action litigation—also has class-action experience. (Pls.’ Reply in Support
of Mot. for Class Certification, Ex. 1.) Also, the Court has been able to observe the plaintiffs’
lawyers during numerous court appearances, including a two-day evidentiary hearing. Based on
these observations, the attorneys’ affidavits, and also based upon the high quality of the briefs
submitted by the plaintiffs’ lawyers, the Court concludes that the plaintiffs’ attorneys have sufficient
qualifications and class-action experience to conduct this litigation.

The City also contends that the plaintiffs’ lawyers are inadequate because they are more
concerned with collecting attorneys’ fees than with representing their clients. In support the City
relies on an article from the Chicago Reader about the panhandling ordinance and Mr. Weinberg.

The article states that “[Mr. Weinberg] says . . . without a victory or settlement agreement, he won’t

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against hundreds of persons during the relevant time period. The Court notes that during the five
months that the City had an official policy of not enforcing the panhandling ordinance, police
officers enforced that ordinance over one-hundred times. Thompson, 2002 WL 449057, at *3.
Accordingly, the Court concludes that the plaintiffs have met Rule 23’s numerosity requirement.
B. Commonality

The plaintiffs must establish that there are questions of law or fact common to the class. Fed.
R. Civ. P. 23(a)(2). “A common nucleus of operative fact is usually enough to satisfy the
commonality requirement.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). A common
nucleus of operative fact is typically found where the “defendants have engaged in standardized
conduct towards members of the proposed class.” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir.
1998). For example, a suit challenging the constitutionality of a police department’s standard policy
satisfies the prerequisite of commonality, even if there exist individual issues regarding the
application of that policy. Rahim v. Sheahan, No. 99 C 0395, 2001 WL 1263493, at *14 (N.D. Ill.
Oct. 19, 2001); see also Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (stating that
“commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects
all of the putative class members”). In this case, the plaintiffs argue that the following legal and
factual issues are common to each class member:

a. Whether the Defendant previously maintained and continues to maintain a policy

and practice to ticket, arrest and/or jail panhandlers pursuant to Section 8-4-010(f)

of the Chicago Municipal Code;

b. Whether Section 8-4-010(f) of the Chicago Municipal Code, on its face, violates
the First Amendment of the United States Constitution;

c. Whether Section 8-4-010(f) of the Chicago Municipal Code violates the First
Amendment of the United States Constitution because it is a content-based

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Procedure 23(b)(3), the court must also find that the questions of law or fact common to the
members of the class predominate over any questions affecting only individual members, and that
a class action is superior to other available methods for the fair and efficient adjudication of the
controversy. Fed. R. Civ. P. 23(b)(3).

The City raises three main arguments in opposition to class certification: (1) the named class
representatives are not adequate representatives of the class; (2) the plaintiffs’ attorneys have not
established that they are capable of adequately representing the class; and (3) the plaintiffs cannot
satisfy Rule 23(b)(3)’s requirement that common issues predominate over individual issues. Even
though the City does not dispute the other prerequisites to class certification, the Court must analyze
each requirement enumerated in Rule 23. See General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)
(stating that a court may certify a class action only if it concludes that each requirement of Rule 23
has been satisfied); Jsaacs v. Sprint Corp., 261 F.3d 679, 682 (7th Cir. 2001) (same).

A. Numerosity

The plaintiffs must establish that “the class is so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). To establish numerosity, plaintiffs are not required to
provide an exact number of class members. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir.
1989). Generally, a plaintiff can satisfy the numerosity requirement by demonstrating that there are
at least forty potential plaintiffs. Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001) (citing
5 James Wm. Moore et al., Moore's Federal Practice § 23.22[3][a] (3d ed. 1999)); In re Bank One
Sec. Litig./First Chicago Shareholder Claims, No. 00 CV 0767, 2002 WL 989454, at *3 (N.D. Ill.
May 14, 2002) (noting that courts in the Northern District of Illinois have certified classes of less

than thirty potential plaintiffs). It is undisputed that the City enforced the panhandling ordinance

-5-


class in such a way that the representative, in pursuing his own claims, will also advance the interest
of the class.” Rahim, 2001 WL 1263493, at *14.

In this case, the claims of the class representatives and the claims of the proposed class
members are based on the same alleged course of conduct by the defendant—the City’s allegedly
unconstitutional policy of enforcing the panhandling ordinance. The City suggests that Mr.
Thompson’s claims are not typical of the claims of other class members who were ticketed for
panhandling because the complaint does not affirmatively state that Mr. Thompson received a ticket
for panhandling. As the plaintiffs correctly point out, however, Mr. Thompson testified both at his
deposition and the evidentiary hearing that he has received panhandling tickets. (Thompson Dep.
at 138-193; Hr’g Tr., Mar. 7, 2002, at 137.) Furthermore, even if Mr. Thompson had never received
such a ticket, Ms. Buchanan’s affidavit states that she has received tickets for panhandling. (Pls.’
Mot. for Class Certification, Ex. C, | 5.) Accordingly, the Court concludes that the class
representatives’ claims are typical of the claims of the proposed class members.

D. Adequacy of Representation

The plaintiffs must establish that “the representative parties will fairly and adequately protect
the interests of the class.” Fed. R. Civ. P. 23(a)(4). This prerequisite consists of the following
factors: (1) whether the plaintiffs’ attorney is qualified, experienced, and generally able to conduct
the proposed litigation; (2) whether the class representatives have interests that are antagonistic to
the class; and (3) whether the class representatives have a sufficient interest in the case to assure
vigorous advocacy. Retired Chicago Police Ass'n, 7 F.3d at 598; In re Bank One Sec. Litig., 2002
WL 989454, at *5; Hobson v. Lincoln Ins. Agency, Inc., No. 99 C 5619, 2001 WL 648958, at *2

(ND. Ill. June 7, 2001).


+ Minuté Drder Form (06/97)

United States District Court, Northern District of Dlinois

Name of Assigned Judge i Sitting Judge if Oth 2
a Magiserate Judge Blanche Manning then Assigned Sudge Nan R. Nolan
CASE NUMBER 01 C 6916 DATE 6/11/2002
CASE Jessie E. Thompson, et al. vs. City of Chicago
TITLE

{In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented. ]

MOTION:

DOCKET ENTRY:

q) Qo Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

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

(4) im Ruling/Hearing on setfor_——_at

(5) QO Status hearing[held/continued to] [set for/re-set for]on__—sset for att

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on___setfor__——at__
(7) Oo Trial[set for/re-set for]on__—_—at

(8) oO [Bench/Jury trial] [Hearing] held/continued to___at

(9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) (CGeneralRule 21 CFRCP41(a)(1) OFRCP41(a)(2).

ao) of {Other docket entry] Report and Recommendation recommending that the District Court grant in
part and dismiss as moot in part the plaintiffs’ motion for class certification [34-1] is hereby entered of

record.
al) (For further detail see order attached to the original minute order.] ,
No notices required, advised in open court. f. Document
5 A YW & Number
No notices required.
mber of notices: a

Y | Notices mailed by judge's staff.

i—

Notified counset by telephone. date 4

Docketing to mail notices.

Mail AO 450 form, keting initials

UV | Copy to judgeMmagisizasjudge

{|

date mailed notice

courtroom pyet “Og
" 7s va Gd

deputy’s Gate

initials

Date/time received in
‘central Clerk’s Office mailing deputy inials



(b) Whether the Class Representatives Have a Sufficient Interest in the Case to Assure
Vigorous Advocacy

A class must have a “conscientious representative plaintiff.” Rand v. Monsanto Co., 926
F.2d 596, 599 (7th Cir. 1991). The burden of establishing this standard is not heavy; a class
representative need only possess general knowledge of the case and participate in discovery. Sebo
v. Rubenstein, 188 F.R.D. 310, 316 (N_D. II. 1999); Sledge v. Sands, 182 F.R.D. 255, 259 (N.D. Ill.
1998).

Relying on Culver v. City of Milwaukee, 277 F.3d 908, 912 (7th Cir. 2002), the City argues
that the class representatives are inadequate because two of the class representatives failed to appear
for their depositions, none of the class representatives initially signed their answers to the City’s
interrogatories, and only one of the three representatives attended the evidentiary hearing regarding
the plaintiffs’ motion for a preliminary injunction. The Court disagrees with the City’s assessment
of the class representatives. In Culver, the Seventh Circuit reasoned that the class representative was
not an adequate representative because his claim was moot and because he displayed a “lack of
energy” in discharging his duties as class representative. Id. Specifically, the Culver court noted that
in the eight years the case had been pending, the class representative had not identified any other
class members, nor had he done anything else to move the case forward. Jd. In contrast, the class
representatives in this case have assisted counsel in drafting the complaint and have engaged in
discovery. All three of the class representatives provided (1) factual information necessary for the
filing of the complaint, (2) sworn affidavits relating to the City’s policy of enforcing the panhandling
ordinance (one representative provided multiple affidavits); and (3) verified answers to

interrogatories. The fact that the class representatives did not initially sign verifications for their

-ll-


get paid for his work on the panhandling case.” (Def.’s Resp. to Pls.’ Mot. for Class Certification,
Ex. H.) The Court rejects the City’s argument on several grounds. First, the statement is probably
true. See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep’t of Health and Human
Resources, 532 U.S. 598 (2001). Second, the City has provided no evidence that the statement in
the article is an accurate representation of Mr. Weinberg’s comments. Finally, even assuming that
the statement is an accurate representation of Mr. Weinberg’s comments, the statement does not
establish that Mr. Weinberg is more concerned with collecting attorney fees than with representing
his clients. There are very few lawyers who have the luxury of working for free. The mere fact that
the lawyer representing the class expects to be paid if his clients are ultimately victorious does not
establish a conflict between the lawyer and the class.
2. Adequacy of Class Representatives
(a) Whether the Class Representatives Have Interests that are Antagonistic to the Class

The Supreme Court has held that “a class representative must be part of the class and possess
the same interest and suffer the same injury as the class members.” Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 625-26 (1997) (internal quotation and citation omitted). “[O]nly a conflict that goes
to the very subject matter of the litigation will defeat a party’s claim for representative status.” 7A
Charles Alan Wright, et al., Federal Practice and Procedure § 1768, at 327 (2d ed. 1986). The
Court concludes that the representatives of the proposed class do not have interests that are
antagonistic to the class. All class members have a common interest in establishing that the
panhandling ordinance is unconstitutional. To the extent that members may have to prove individual

damages, these individual interests would not be antagonistic to the interests of other class members.

-10-


prohibition of panhandling, a well-established form of constitutionally protected free

speech, that is not necessary to serve a compelling state interest and is not narrowly

tailored to achieve that end; and

d. Alternatively, whether Section 8-4-010(f) of the Chicago Municipal Code violates

the First Amendment of the United States Constitution because it is not narrowly

tailored to serve significant government interests and does not leave open ample

alternative channels of communication.
Because the constitutionality of the panhandling ordinance is a legal issue that is common to each
member of the proposed class, the Court concludes that the plaintiffs satisfy Rule 23s commonality
requirement.
C. Typicality

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical
of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A court’s analysis of whether a
representative party’s claims are typical of the class members’ claims is closely related to the court’s
commonality inquiry. Keele, 149 F.3d at 595. The Seventh Circuit has reasoned that ““[a] plaintiff's
claim is typical if it arises from the same event or practice or course of conduct that gives rise to the
claims of other members and his or her claims are based on the same legal theory’ .. . even if there
are factual distinctions between the claims of the named plaintiffs and those of other class members.”
De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (quoting H. Newberg,
Class Actions § 1115(b), at 185 (1977)); see also Stewart, 275 F.3d at 227-28; Adams v. R.R.
Donnelley & Sons, Nos. 98 C 4025, 96 C 7717, 2001 WL 336830, at *5 (N.D. Ill. Apr. 6, 2001)
(reasoning that “{sJimilarity of legal theory is more important than factual similarity”). The

typicality inquiry focuses on the relationship between the class representative and the class members:

the court must determine whether “the named plaintiff’s interests align[] with those of the proposed

-7-


Plaintiff Nadine Buchanan is a resident of Chicago who is homeless. (Pls.’ Mot. for Class
Certification, Ex. C, | 2.) On an average day, Ms. Buchanan panhandles for two hours and earns
$5.00. Ud, 4.) During the class period, Ms. Buchanan has been arrested and jailed pursuant to the
panhandling ordinance. (Id., 4/5.) The most recent dates of her panhandling arrests are: August 5,
2001, March 14, 2001, and February 16, 2001. (/d.) Ms. Davis has also received panhandling
tickets during the class period. (/d.)

Defendant City is a municipal corporation created under the laws of the state of Illinois.

Discussion

The plaintiffs seek to certify a class for injunctive relief and a class for monetary relief. The
Court will address each separately.

I. Proposed Class for Injunctive Relief

The plaintiffs filed this suit on September 6, 2001, seeking declaratory, injunctive and
monetary relief. On October 30, 2001, the Chicago Police Department sent a facsimile message to
the twenty-five police districts and the department’s specialized units instructing department
members to cease enforcing the panhandling ordinance. Thompson, 2002 WL 449057, at *3. The
City subsequently moved the Court to dismiss as moot the plaintiffs’ claim for injunctive relief. The
plaintiffs responded that their claim was not moot because the panhandling ordinance was still being
enforced. After holding a two-day evidentiary hearing on the issue of mootness, the Court
determined that the City failed to establish that the panhandling ordinance was moot. Specifically,
the Court found that between October 31, 2001 (the day after the City announced its policy of not
enforcing the panhandling ordinance) and February 2002, the police department issued ninety-four

panhandling tickets and cited the panhandling ordinance on at least fifteen arrest reports. Jd., at *4.

3-


F. Superiority

A court certifying a class under Rule 23(b)(3) also must find that “a class action is superior
to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ.
P. 23(b)(3). In Peoples v. Sebring Capital Corp., No. 01 C 5676, 2002 WL 406979, at *9 (N.D. Ill.
Mar. 15, 2002), the court noted that a class action was superior to other available methods based in
part on the court’s determination that it was “quite likely that the vast majority of class members
[are] unaware of the alleged . . . violation{, and e]ven if they were so informed, they would probably
lack sufficient incentive to bring individual actions.” The same is true of the class members in this
case. Moreover, given the size of the potential class, a class action is a more efficient method for
resolving the claims of the individual class members. Finally, given that the claims of each
individual class member are small relative to the expense of conducting a lawsuit against the City,
it is likely that it would be uneconomical for members to pursue individual claims. See Id.
(collecting cases); 7A Charles Alan Wright, et al., Federal Practice and Procedure § 1779, at 556
(2d ed. 1986) (stating that “individual actions . . . may be an inferior alternative to the class action
when the economics of the situation make it impossible for the aggrieved members to vindicate their
rights by separate actions”). Accordingly, the Court concludes that a class action is superior to other

methods for the fair and efficient adjudication of the controversy.

14.


Background

It is undisputed that the Chicago Police Department has enforced the panhandling ordinance
on numerous occasions between September 6, 1999 and March 2002.? Thompson v. City of Chicago,
No. 01 C 6916, 2002 WL 449057, at *1 (N.D. Ill. Mar. 22, 2002). When enforcing the panhandling
ordinance, officers either arrested or threatened to arrest individuals for panhandling or issued a
ticket. Jd.

Plaintiff Jesse Thompson is a resident of Chicago who is homeless. (Pls.’ Mot. for Class
Certification, Ex. A, § 2.) Mr. Thompson panhandles in order to earn money for food. (Id., 4.)
Onan average day, Mr. Thompson panhandles for six hours and earns $20.00. (/d.) During the class
period, Mr. Thompson has been arrested and jailed pursuant to the panhandling ordinance. (id.,
5.) Usually Mr. Thompson is kept in jail between eight and twenty-four hours. (U/d.) The most
recent dates of his panhandling arrests are: August 6, 2001, June 25, 2001, and June 5, 2001. (/d.)
Mr. Thompson has also received panhandling tickets during the class period. (Thompson Dep. at
138-193; Hr’g Tr., Mar. 7, 2002, at 137.)

Plaintiff Ronald Davis is a resident of Chicago who is homeless. (Pls.’ Mot. for Class
Certification, Ex. B, 2.) Mr. Davis panhandles in order to earn money for food. (Id., 4.) Onan
average day, Mr. Davis panhandles for six to eight hours and earns $15.00. (/d.) During the class
period, Mr. Davis has been arrested and jailed pursuant to the panhandling ordinance. (ld., 45.)
Usually Mr. Davis is kept in jail between eight and twenty-four hours. (/d.) The most recent dates

of his panhandling arrests are: August 28, 2001, July 12, 2001, and June 6, 2001. (/d.)

> In their complaint, the plaintiffs state that the relevant class period is September 6, 1999
to the present. (Pls.’ Second Am. Compl., { 26.)

2.


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

EASTERN DIVISION
JESSIE E. THOMPSON, et al., ) DOCKETFA
Plaintiffs, } YUN 1 2 2002
v. } No. 01 C 6916
CITY OF CHICAGO, } Judge Blanche M. Manning
Defendant. ) Magistrate Judge Nan R. Nolan

REPORT AND RECOMMENDATION

Before it was repealed on March 27, 2002, section 8-4-010(f) of the Chicago Municipal Code
stated that “[a] person commits disorderly conduct when he knowingly: (f) Goes about begging or
soliciting funds on the public ways, except as provided in Chapter 10-8, Sections 10-8-110 through
10-8-170,” (hereinafter “the panhandling ordinance”).' Plaintiffs Jesse E. Thompson, Ronald Davis,
and Nadine Buchanan bring this putative class action against the City of Chicago (“City”), alleging
that the City’s enforcement of the panhandling ordinance violated their rights under the First, Fourth,
and Fourteenth Amendments to the United States Constitution. The Plaintiffs seek: (1) declaratory
relief stating that (i) the City’s enforcement of the panhandling ordinance violated the First
Amendment, and (ii) the panhandling ordinance is unconstitutional; (2) an injunction prohibiting the
City from enforcing the panhandling ordinance; and (3) monetary relief. (/d.) The case has been
referred to the Court for decision on the plaintiffs’ motion for class certification (Docket Entry #24).
For the reasons discussed below, the Court recommends that the District Court GRANT IN PART

and DISMISS AS MOOT IN PART the plaintiffs’ motion for class certification.

"Chapter 10-8 allows individuals to solicit charitable donations provided they have a permit.

Vb


interrogatories is irrelevant—the answers have been verified and the City does not assert that it was
prejudiced by any delay. Additionally, plaintiff Jesse Thompson testified both at his deposition and
the evidentiary hearing. The plaintiffs concede that two of the plaintiffs were unavailable to be
deposed on certain dates (the plaintiffs state that one of the plaintiffs had pneumonia and could not
attend his deposition). However, the plaintiffs state that these two individuals are available for
depositions at any time and that the City has not asked to reschedule those depositions. The record
indicates that the class representatives have participated in discovery and, based on the information
they provided during discovery, that they have general knowledge of this case. Therefore, the Court
concludes that the class representatives will fairly and adequately protect the interests of the class.
E. Predominance

To certify a class under Rule 23(b)(3), the Court must find that “the questions of law or fact
common to the members of the class predominate over any questions affecting only individual
members.” Fed. R. Civ. P. 23(b). In this case, the legal issue common to all class members is
whether the panhandling ordinance is constitutional. The City seeks to defeat predominance by
pointing out that damages would vary according to how the ordinance was enforced against each
class member. However, the two cases the City relies upon—Williams v. Ford Motor Co., 192
F.R.D, 580 (N.D. IL. 2000), and Hylaszek v. Aetna Life Ins. Co., 1998 WL 381064 (N.D. II.
1998)—do not support the City’s argument. The Hylaszek and Williams courts denied motions for
class certification based in part on their findings that individual issues regarding liability
predominated over common issues. Williams, 192 F.R.D. at 584-85 (reasoning that certification
under Rule 23(b)(3) is improper where liability determinations are both individual and fact-intensive)

(internal quotation and citation omitted); Hylaszek, 1998 WL 381064, at *3-4 (denying certification

-12-


Conclusion

For the foregoing reasons, this Court recommends that the District Court GRANT the
plaintiffs’ motion for class certification to the extent it seeks to certify the following class for
monetary relief under Rule 23(b)(3):

All persons who, during the Class Period, have been ticketed, arrested and/or jailed

pursuant to Section 8-4-010(f) of the Chicago Municipal Code for panhandling on

the public fora in Chicago and those persons who may in the future be ticketed,

arrested or jailed pursuant to Section 8-4-010(f) of the Chicago Municipal Code for

panhandling on the public fora in Chicago.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court within
ten (10) days of receipt of this notice. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). Failure to

object within the specified time period constitutes waiver of the right to appeal. Lorentzen v.

Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995).

ENTER:

Nor heer

t
Nan R. Nolan

United States Magistrate Judge

Dated: Gesnne tL. 800 2

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