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UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Camden Vicinage

CITY SELECT AUTO SALES, INC., a New

Jersey corporation, individually and as the

representative of a class of similarly

situated persons,

Plaintiff,

v.

DAVID RANDALL ASSOCIATES, INC. and

RAYMOND MILEY III,

Defendants.

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Electronically Filed

Civil Action No.

11-cv-02658-JBS-KMW

PLAINTIFF’S MOTION FOR LEAVE TO CITE THE SEPTEMBER 10, 2012

OPINION, ON REMAND, AND THE DENIAL OF DEFENDANT’S PETITION FOR

LEAE TO APPEAL IN CREATIVE MONTESSORI V. ASHFORD GEAR

IN SUPPORT OF ITS MOTION FOR CLASS CERTIFICATION

NOW COMES the Plaintiff, City Select Auto Sales, Inc., (“Plaintiff”), by and

through its attorneys, and moves for leave to cite Creative Montessori Learning

Centers v. Ashford Gear, Inc., No. 09 C 3963, 2012 WL 3961307. *1-2 (September 10,

2012) (“Ashford 3”), petition for leave to appeal denied, No.:12-8036 (7th Cir. October

11, 2012), in support of its pending Motion for Class Certification (Doc. 30). In

support of its Motion, Plaintiff alleges and states as follows:

1. Plaintiff’s motion for class certification, supporting brief and reply brief are

filed. (Docs. 30, 30-1, 36). Defendant filed its response on March 22, 2012 (Doc. 31).

2. In Defendant’s response brief arguing against the adequacy of counsel, it

relied heavily on both the Creative Montessori Learning Centers v. Ashford Gear,

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Inc., 662 F.3d 913 (7th Cir. 2011) (“Ashford 2”) opinion1 (Doc. 31, pp. 4-6, 8, 12-14)

and some of the subsequent briefing by Defendant made in that case after remand.

(Doc. 31-4). Defendant vigorously and repeatedly has accused counsel of

“misconduct” using the Ashford 2 case citation as its springboard or proof. Doc. 31,

pp. 4-6, 8, 12-14; Doc. 31-4. Because the Seventh Circuit opinion in Ashford 2 is so

heavily relied upon by Defendant, Plaintiff respectfully seeks leave to file the new

District Court opinion and concomitant order denying leave to appeal thereby

resolving the adequacy challenge.

3. The Ashford Gear District Court has now rendered its opinion on remand.

Creative Montessori Learning Centers v. Ashford Gear, Inc., No. 09 C 3963, 2012

WL 3961307. *1-2 (September 10, 2012), attached as Exhibit A. The Court stated

that it “reviewed the hundreds of pages of supplemental submissions, including

expert declarations and opinions, for the reasons discussed below, the court

concludes that there is no evidence to suggest that counsel will not loyally represent

the class, and no evidence to suggest in any way that counsel will put their own

interests ahead of those of the class.” The Court found that counsel was adequate to

represent the class. The Court found that there was no basis to doubt counsel’s

loyalty to class members. The Court found that the defendant’s arguments were

“pure sophistry.” The Court granted the motion for class certification.

4. Next, the Defendant again requested that the Seventh Circuit grant a

1 In that appellate opinion, the Court held that the District Court had applied the

wrong legal standard in finding counsel adequate in a separate T.C.P.A. case, and

remanded for further consideration.

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petition for leave to appeal. Defendant’s request was denied. See Exhibit B.

5. Judge Gettleman in Ashford 3 is not alone in his views of class counsel.

After the Court’s ruling in Ashford 2, trial court-after-trial court has reviewed the

evidence and concluded that the attorneys are adequate to represent classes in their

cases. The Siding and Insulation Co. v. Beachwood Hair Clinic, Inc., 279 F.R.D. 442

(N.D. Ohio 2012) (Gwin, J.); Reliable Money Order, Inc. v. McKnight Sales Co., Inc.,

281 F.R.D. 327 (E.D. Wis. 2012) (Callahan, M.J.), app. pending, No. 12-2599 (7th

Cir.);2 American Copper & Brass, Inc. v. Lake City Industrial Products, Inc., No. 09-

1162, 2012 WL 3027953 (W.D. Mich. July 24, 2012) (Quist, J.) (Doc. 46-2); Jackson’s

Five Star Catering, Inc. v. Beason, No. 10-10010, 2012 WL 3205526 (E.D. Mich. July

26, 2012) (Cook, J.) (Doc. 46-1); Van Sweden Jewelers, Inc. v. 101 VT, Inc., No. 10-

253, 2012 WL 4127824 (W.D. Mich. Sept. 19, 2012) (Neff, J.); Imhoff Investment

LLC v Sammichaels, Inc., No. 10-10996, Doc. 67 (E.D. Mich. October 1, 2012). In

Jackson’s Five Star, the district court strongly rejected the Abraham allegations of

misconduct based on findings very similar to those made by the district court in this

case. Id. at *3 (“Since Caroline Abraham did not produce the information, the

Plaintiff’s attorneys could not have breached any assurance of confidentiality

allegedly made to her.”) These judges have measured class counsel’s integrity in the

daily grind of litigation—battling discovery disputes, motions, hearings, and in some

cases taking TCPA cases to judgment, to trial, or to settlement. “A court’s experience

2 In Reliable Money Order, the 7th Circuit has granted a petition for permission to appeal

class certification (including the issue of class counsel’s adequacy), and briefing is under

way.

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with a particular counsel—even if that experience is not reflected in designated

evidence—may be relevant to its determination of the counsel’s adequacy to

represent a proposed class.” Gomez v. St. Vincent Health, Inc. 649 F.3d 583 (7th Cir.

2011). When every judge who has reviewed the allegations made by Abraham and

defense counsel has concluded that these attorneys can be trusted to protect the

interests of the class loyally, those conclusions should not be lightly dismissed.

WHEREFORE, Plaintiff City Select Auto Sales, Inc., respectfully requests

that the Court grant it leave to cite Creative Montessori Learning Centers v.

Ashford Gear, Inc., No. 09 C 3963, 2012 WL 3961307. *1-2 (September 10, 2012)

attached as Exhibit A (“Ashford 3”), petition for leave to appeal denied, No.:12-8036

(7th Cir. October 11, 2012), attached as Exhibit B..

October 17, 2012

Respectfully submitted,

CITY SELECT AUTO SALES, INC.,

individually and as the representative of a class of

similarly-situated persons.

By: s/Alan C. Milstein

Alan C. Milstein,

One of Plaintiff’s Attorneys

Sherman, Silverstein, Kohl, Rose, and Podolsky

308 Harper Drive, Suite 200

Moorestown, NJ 08057

Telephone: 856/662-0700

Facsimile: 856/488-4744

Attorneys for Plaintiff City Select Auto Sales, Inc.

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CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that, on October 17, 2012, he

caused a copy of the foregoing motion to be served upon all counsel of record using

the ECF system.

s/Alan C. Milstein

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