Opinion
Case No. 99-C-50
December 11, 2000
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
This action comes before the court on plaintiffs' motion for class certification on count I (common law unconscionability) and count II (statutory attorney fees). For the following reasons the motion for class certification will be granted, in part.
The remaining count, Count VI (unconscionability under Wis. Stat. § 425.107(1) is asserted only on behalf of the individually named plaintiffs. The Wisconsin Consumer Act provides that a § 425.107 unconscionability claim cannot be brought as a class action unless the challenged conduct has previously been found to constitute a violation of the Act either by a Wisconsin appellate court of by a properly promulgated administrative rule. Wis. Stat. § 426.110(3).
The pleadings and documents filed by the parties establish the facts set forth below.
Defendant McKenzie Check Advance of Wisconsin, LLC, is a Tennessee limited liability corporation authorized to do business in Wisconsin. (First Amended Complaint, ¶ 5) Since July 18, 1996, McKenzie Check Advance of Wisconsin, LLC, has operated under the trade name "National Cash Advance" (NCA) licensed by the State of Wisconsin as a small lender pursuant to Wis. Stat. § 138.09. NCA provides short-term, single-payment cash loans to consumers at sixteen Wisconsin locations. (Plaintiffs' Reply Brief, Ex. M, p. 13) These loans are referred to as payday loans or check advance because they are extended until a consumer's next payday.
A consumer may borrow up to $300, and NCA charges a flat rate of 22% of the amount borrowed regardless of the time that the loan is outstanding. The annual percentage rates for the loans at issue range from 500% to more than 1,000%. In exchange for signing a loan agreement and tendering a personal check for the full amount of the loan plus the finance charge, a consumer receives cash amount of the loan and NCA promises that it will not negotiate the check until the date indicated in the payment schedule. (First Amended Complaint ¶ 31) Consumers may extend the loan for up to sixteen additional days by writing another check and paying additional finance charges.
Plaintiff, Damien N. Dienese, initiated this case by filing his complaint in Milwaukee County Circuit Court on December 21, 1998, seeking a permanent injunction against business operations violating the Wisconsin Consumer Act and law protecting consumer interests pursuant to Wis. Stat. §§ 426.109(1) and 426.110(4)(e), actual damages, consequential damages, statutory damages, statutory penalties, other unspecified remedies and attorney fees. Additionally, the complaint sought a declaration that the Consumer Loan Agreements used by defendant National Cash Advance are unconscionable and may be rescinded by Dienese, following a trial by jury.
The defendant removed the action to this court on January 20, 1999. Havana Cook and Lonnie Cummins joined as plaintiffs, in the amended complaint filed February 19, 1999.
In the amended complaint, the plaintiffs newly asserted that the "defendants violated the prohibition against any term of with respect to a consumer credit transaction for the payment by the consumer of attorney fees stated in Wis. State. § 422.411. According to the plaintiffs, the defendants do not regularly employ attorneys in collection actions. Yet they issue signed written receipts requiring the plaintiffs and "class members" to agree to pay all of defendants' attorney fees and court costs related to collection of their consumer loans in violation of Wis. Stat. § 427.104(L).
Section 422.411 of the Wisconsin Statutes provides "[W]ith respect to a consumer credit transaction no term of a writing may provide for the payment by the customer of attorney fees."
Based on a joint stipulation filed February 1, 2000, (Doc. #44) the parties agreed to dismissal of all co-defendants, leaving McKenzie Check Advance of Wisconsin, LLC, as the sole defendant.
Soon after filing the amended complaint, NCA concluded that its computer-generated receipts for consumers stated that if a consumer's check was returned for non-sufficient funds, the consumer would be required to pay a return check charge along with attorney fees and court costs related to the collection. According to NCA, these receipts are no longer used. A manager of NCA recalls that the change was effective by mid-March of 1999, and that despite this erroneous language, NCA never employed attorneys, or collected attorney fees from clients for actions filed on defaulted loans in small claims court and United States Bankruptcy Court. (Decl. J. Edward Scoggins, ¶¶ 6, 7) Nevertheless, the plaintiffs maintain that they are entitled to recovery of statutory penalties on behalf of themselves and "class members."
At approximately the same time NCA corrected the receipt, it began using a Waiver of Jury Trial and Arbitration Agreement in all of its stores. The Arbitration Agreement provides that a consumer must assert his or her claims against NCA and its affiliated entities to one of three national, or a qualifying local, arbitration group, or a small claims tribunal. The Arbitration Agreement adds that the parties are responsible for paying the arbitrator, but NCA will advance the filing or hearing fees upon written request. (Defendant's Brief in Opposition, Ex. J)
The Arbitration Agreement also states that the consumer may not participate in any class action, or any jury trial, against NCA or its affiliated entities. In bold type, the Arbitration Agreement reads:
You acknowledge and agree that by entering into this Agreement:
(a) YOU ARE WAIVING YOUR RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES;
(b) YOU ARE WAIVING YOUR RIGHT TO HAVE A COURT, OTHER THAN A SMALL CLAIMS TRIBUNAL, RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES; and
(c) YOU ARE WAIVING YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS PARENS PATRIAF, AS A PRIVATE ATTORNEY GENERAL OR IN ANY OTHER REPRESENTATIVE CAPACITY AGAINST US AND/OR RELATED THIRD PARTIES. (There is presently pending a purported class action against us in the United States District Court, Eastern District of Wisconsin, Milwaukee Division, 517 E. Wisconsin Ave., Rm. 362, Milwaukee, WI 53202, Case No. 99-C-50).
The Agreement indicated that it applies retroactively by defining a dispute to include "all federal or state law claims, disputes or controversies, arising from . . . any prior agreement or agreements between you and us . . . ." Consumers are required to read, understand and agree to the terms and initial the space prior to entering into a loan with NCA. (Defendant's Brief in Opposition, Ex. J)
Each of the named plaintiffs, Dienese, Cook, and Cummins, is a Wisconsin resident who obtained loans from NCA under NCA's standard-form Consumer Loan Agreement. Dienese, a/k/a Bud F. Neff, began doing business with NCA's 27th street store in Milwaukee, Wisconsin, in November 1997. (Defendant's Brief in Opposition, Ex. C) He was only permitted to borrow $100.00, and to obtain one loan each month because his sole source of income was state and federal disability income. Dienese timely paid three loans, but defaulted on a fourth.
Dienese has been arrested at least three times for desertion, abandoned auto, and disorderly conduct. (Defendant's Brief in Opposition, Ex. D) He has not responded to any discovery, did not appear for his deposition, and has failed to communicate with his attorneys. (Defendant's Brief in Opposition, Ex. E)
Cook began doing business with NCA in July 1998, after her niece told her that she could go to NCA and get money until her payday. (Defendant's Brief in Opposition, Ex. F) Cook engaged in seven loan transactions with NCA over the course of six months, but never extended the term of the loan. She testified in her deposition on March 7, 2000, that she understood the terms of the loan and that those terms were explained to her by an NCA employee. (Defendant's Brief in Opposition, Ex. G., pp. 32, 70) Cook further testified that she used NCA to keep from falling further behind on bills, to purchase food, to pay for brakes and gasoline, to avoid paying her electricity and gas bills late, and to get money for her boyfriend. Soon after Cook joined this lawsuit, she filed a Chapter 13 bankruptcy petition. She continues to do business with other payday lenders.
At her deposition, Cook testified that she has a "little" understanding of the class action but is not sure that she would be willing to be responsible for the costs. (Defendant's Brief in Opposition, Ex. G, pp. 44-48) She believes her responsibility as a class representative is to "tell the truth" about her experience with NCA. (Defendant's Brief in Opposition, Ex. G., pp. 50-51) However, she has not completely read the first amended complaint, filed a year prior to her deposition. (Defendant's Brief in Opposition, Ex. G, pp. 50-51)
Cummins' first NCA loan was in September of 1998. After providing proof of his $45,000 annual income as production manager for Motorola (Defendant's Brief in Opposition, Ex. H), Cummins engaged in three transactions with NCA to purchase new tires and pay a phone bill. (Defendant's Brief in Opposition, Exs. H, I) Cummins is a plaintiff in three other lawsuits unrelated to the instant action. (Defendant's Brief in Opposition, Ex. I)
Analysis
Plaintiffs seeking class certification bear the burden of proving their law suit satisfies the requirements for a class action. First, the suit must satisfy all four elements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Second, the proposed class must satisfy at least one of the three provisions under Rule 23(b). Here, plaintiffs claim that Rule 23(b)(2) and (b)(3) are satisfied. They read as follows:
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the question 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.
In addressing the requirements of Rule 23(a), the court first considers whether the class is so numerous that joinder of all members is impracticable. Fed.R.Civ.P. 23(a)(1). Here, the plaintiffs seek certification of a class of all consumers who have entered consumer loan agreements with NCA in the State of Wisconsin at any time since April 17, 1996. The data available up to November 15, 1999, indicates that NCA transacted 237,687 loans with 20,845 consumers in Wisconsin, and that 9,535 of these consumers signed Arbitration Agreements. (Plaintiff's Reply Brief, Ex. O) Thus, the proposed class consists of 11,310 consumers, at a minimum. Consequently, NCA does not dispute that plaintiffs satisfy the numerosity requirement.
Next the court considers whether there are common questions of law or fact. Generally, a "common nucleus of operative fact" is sufficient to satisfy this second requirement. Rosarlo v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992); cert. denied, 506 U.S. 1051, 113 S.Ct. 972, 122 L.Ed.2d 127 (1993). The existence of some factual variation between the class members' claims does not preclude certification. Id., at 1017.
Plaintiffs argue that there are common questions of law and fact. For example, NCA uses a Policy and Procedures Manual to assure that its stores operate in a uniform fashion. (Plaintiffs' Reply Brief, Ex. N, p. 54) The Manual sets forth a precise summary of NCA's loan rates and terms, and requires that all finance charges be calculated uniformly. (Plaintiffs' Reply Brief, Ex. N, pp. 64, 86-87) All NCA loans are single-installment short-term debts extending no more than sixteen days. (Plaintiffs' Reply Brief, Ex. N, p. 101) NCA's Standardized Loan Agreements require the consumer to provide a postdated check as security for each loan. (Plaintiffs' Reply Brief, Ex. N, p. 120) And, all NCA stores have used the Waiver and Arbitration Agreement since February or mid-April 1999. There is a uniform requirement that the Waiver be signed as a condition of obtaining a loan. (Plaintiffs' Reply Brief, Ex. M, p. 51)
Plaintiffs further allege that the following questions of law are common to the proposed class: (1) whether the attorney fee provision of the NCA's standard-form written receipts violate Wis. Stat. § 422.411(1); (2) whether the attorney fee provision of NCA's standard-form written receipts violate Wis. Stat. § 427.104(L); (3) whether NCA's Consumer Loan Agreement is unconscionable under Wisconsin common law; (4) whether evidence of procedural unconscionability is provided by NCA's practice of making uniform misrepresentations as part of its standard operating procedure in dealing with customers; (4) and whether NCA's requirement, imposed after the institution of this action, that all customers sign its Waiver of Jury Trial and Arbitration Agreement evidences substantive or procedural unconscionability.
NCA concedes that count II of the plaintiffs' first amended complaint alleging violations of Wis. Stats. §§ 442.411 and 427.105(L) is common to all borrowers who signed a Customer Receipt prior to March 25, 1999, if they have not signed an Arbitration Agreement. (Defendant's Brief in Opposition, p. 17) However, the proposed class, includes persons who did not receive a Customer Receipt with the attorney fee provision, and persons who signed the Arbitration Agreement.
NCA denies that substantive and procedural unconscionability are proper issues for class certification under Wisconsin law. Citing Discount Fabric House, Inc. v. Wisconsin Tel. Co., 117 Wis.2d 587, 602, 345 N.W.2d 417, 424-425 (1984), NCA points to the individual fact-based inquiries required of such claims:
Under the `procedural' rubric come those factors bearing upon . . . `the real and voluntary meetings of the minds' of the contracting parties: age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations in the printed terms were possible whether there were alternative sources of supply for the goods in question.' The `substantive' headings embraces the contractual terms themselves, and requires a determination whether they are commercially reasonable.
NCA speculates that this is the reason that Wisconsin bars the class treatment of unconscionability claims asserted under the Wisconsin Consumer Act.
A recent line of district court decisions from the Northern District of Illinois approves of class certification of common-law unconscionability claims. See Pinkett v. Moolah Loan Comp., 1999 WL 1080596 (N.D.Ill. Nov. 2, 1999); Davis v. Cash For Payday, Inc., 193 F.R.D. 518, 522 (N.D.Ill. April 26, 2000); Van Jackson v. Check `N Go of Illinois, Inc., 193 F.R.D. 544 (N.D.Ill. June 13, 2000); Donnelly v. Illinois Cash Advance, Inc., 2000 WL 1161076 (N.D.Ill. August 16, 2000). Judge Hibbler, addressing the commonality and typicality issues in Pinkett, wrote:
In this case, the plaintiff, and other putative class members, took out payday loans at astoundingly high interest rates from the defendants. The defendants have not argued, nor in this court's opinion, can they argue, that the plaintiff and the other potential members were sophisticated consumers. Without a doubt, there is a gross disparity in the bargaining positions of the parties. Likewise, the commercial experience of the plaintiff dictates that he was not faced with a meaningful choice when faced with the unreasonable and unfavorable terms of the promissory note. It is the very nature of "payday loans" that members of the population with no other means of securing credit seek out these loans with exorbitant, extreme, and untenable interest rates in excess of 300%. It is because the plaintiff and the other putative class members were "forced to swallow unpalatable terms," Id., that the inference of unconscionability may be made.Id., 1999 WL 1080596 at *5.
Admittedly, the district courts in the Northern District of Illinois have certified the class actions against payday loan companies after rejecting defendants' assertion that substantive unconscionability does not exist under Illinois law. Illinois permits a plaintiff to demonstrate either substantive or procedural unconscionability. Reed v. Chartwell Financial Services Ltd., 1999 WL 181986 (N.D.Ill. 1999), citing, Frank's Maintenance Eng., Inc. v. C.A. Roberts Co., 408 N.E.2d 403, 409-10 (Ill.Ct.App. 1980). Wisconsin requires a finding of both procedural and substantive unconscionability. Leasefirst v. Hartford Rexall Drugs, Inc., 168 Wis.2d 83, 89, 483 N.W.2d 585, 587 (Ct.App. 1992), rev, denied, 490 N.W.2d 24 (1992); Kohler v. Wixen, 204 Wis.2d 327, 555 N.W.2d 640 (Ct.App. 1996). Nevertheless, Judge Bucklo in Van Jackson considered whether plaintiffs could proceed as a class on a procedural unconscionability claim:
But even supposing that the plaintiffs must rely on procedural unconscionability, the defendants do not adequately explain why there are such great variations in the bargaining positions and the commercial experience of the parties, Reuben H. Donnelley Corp., 169 Ill. Dec. 521, 592 N.E.2d at 12, as to preclude a class action. See Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998), ("[F]actual variations among class members' grievances do not defeat a class action.").193 F.R.D. at 547.
Notwithstanding the procedural element of the unconscionability claim, the court finds that common questions of law and fact predominate. NCA uses standard form contracts; the terms of the contracts are not negotiable. See, e.g., Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). The same interest rate applies regardless of the term or loan amount, and the term of the loan does not exceed sixteen days. NCA operates in a uniform fashion with respect to all consumers — it holds the superior bargaining position. On page 27 of NCA's brief in opposition, NCA argues that the typical NCA customer who spends beyond his means. The NCA Policy and Procedural Manual reminds employees that if the consumers "weren't in a bind, they would not be here." (Plaintiffs' Reply Brief, Ex. N D0076)
NCA correctly points out that the question of law identified by plaintiffs regarding the Arbitration Agreement is not properly before the court. The Agreement was introduced after the First Amended Complaint was filed, and none of the named plaintiffs signed the Agreement. Purported representatives must have standing to each claim he or she asserts. See, e.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 737, 760, 104 S.Ct. at 1925, n. 20. At the same time, the Arbitration Agreement becomes an issue with respect to the proper size and definition of the class. This will be discussed below.
The issue of commonality is closely related to typicality. Rosarlo, 963 F.2d at 1018. The typicality requirement primarily directs the district court to focus on whether the named representatives' claims have the same essential characteristics as the claims of the class at large. De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). "The typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiffs and those of other class members." De La Fuente, 713 F.2d at 232. However, the named representatives' claims must "have the same essential characteristics as the claims of the class at large." Id.
Plaintiffs argue and the court agrees that the financial condition of the customers weigh in favor of finding typicality. NCA's Policy and Procedures Manual expressly states that its customers come to NCA for help because they are "in a bind." (Plaintiffs' Reply Brief, Ex. N, p. 66) Cook and Cummins both turned to NCA because they "had no other choice" and because they were "getting turned down for [my] credit." (Defendant's Brief in Opposition, Ex. G, p. 77; Ex. I, p. 68) Although NCA claims that its typical customer is middle-class, it admits that its typical customer has spent beyond his or her means. That in combination with the uniform length of the loans, the uniform finance charges, and the uniform issuance of attorney fee/liability receipts is sufficient for typicality. (Plaintiffs' Reply Brief, Ex. M, p. 101; Defendant's Brief in Opposition, Ex. G, p. 102 and Ex. I, p. 65)
Next, NCA argues that neither Dienese nor Cook will fairly or adequately protect the interests of the class. Dienese failed to answer discovery requests or appear for a deposition, and plaintiffs have withdrawn their request to certify him as a class representative. (Defendant's Brief in Opposition, p. 2 fn. 2) Cook admits that she has not read the entire First Amended Complaint filed last year, and is not sure that she is willing to pay the required costs. Yet, she was able to explain that she brought the suit because of the "outrageous prices [NCA's stores] were charging for loans," and understands that she has a duty to "be honest and to tell [her experience] at National Cash Advance." (Defendant's Brief in Opposition, Ex. G, pp. 50, 74) Cummins testified that he is representing "all clients that have made an agreement with National Cash Advance," and that he is "looking out for their best interests. . . ." (Defendant's Brief in Opposition, Ex. I, p. 62) He is pursuing the class action because he "always had it in the back of [his] head that it was an outrageous fee." (Defendant's Brief in Opposition, Ex. I, p. 59)
Cook and Cummins appear to have sufficient knowledge to be adequate class representatives, and there is no evidence that either Cook or Cummins lack a direct and substantial interest in the issues. United States v. City of Milwaukee, 144 F.3d 524, 528 (7th Cir. 1998). Demanding a higher degree of sophistication is inconsistent with the class allegation that NCA is targeting consumers who are not sophisticated in the matters at issue. Also, the class is adequately represented by Attorneys Patrick O. Patterson and James A. Walrath, who have devoted many years to public interest law and have pursued a number of class actions in this district and other states.
Persuaded that plaintiffs have satisfied the requirements of Rule 23(a), the court turns to the requirements of Rule 23(b). Although, plaintiffs argue that certification is appropriate under (b)(2) and (b)(3), recent Seventh Circuit authority suggests that the better course is to treat a (b)(2) class as if it were a (b)(3) class giving notice and the opportunity to opt out. Jefferson v. Ingersoll International Inc., 195 F.3d 894 (7th Cir. 1999); Lemon v. International Union of Operating Engineers, Local No. 139, 216 F.3d 577 (7th Cir. 2000). In Jefferson, the Seventh Circuit Court of Appeals held that if Rule 23(b)(2) may be used in cases where the plaintiff class demands compensatory or punitive damages it is only when monetary relief is incidental to the equitable remedy. Id., 195 F.3d at 898. Incidental is defined as "damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief." Lemon, 216 F.3d at 581, citing, Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998). Thus, incidental damages do not depend "in any significant way on the intangible, subjective differences of each class member's circumstances." Id.
Plaintiffs' prayer for relief seeks injunctive relief with respect to the violation of the Wisconsin Consumer Act and the attorneys' fee provision of § 422.411. But, the Wisconsin Consumer Act claim is an individual claim, and NCA has ceased the conduct at issue regarding issuance of receipts with the attorney fee language. See Fed.R.Civ.P. 23 Advisory Committee's Supplementary Note Subdivision (b)(2) (Rule 23(b)(2) is intended to reach situations where a party has taken action or refused to take action with respect to a class). On the other hand, plaintiffs' unconscionability claims seek actual damages, consequential damages, statutory damages, penalties and other remedies. Consequently, it does not appear that the requested damages are incidental to the equitable relief. Thus, the most appropriate alternative for handling this action is certifying the class under Rule 23(b)(3).
For the same reasons that the court finds that commonality and typicality are present, the court is satisfied that common issues of law and fact predominate over individual issues. And the class action is the superior method for adjudicating this matter. There are relatively small amounts of money involved and the financial situation of the plaintiffs may inhibit individualized litigation. See, e.g., Williams v. Chartwell Financial Services, Ltd., 204 F.3d 748 (7th Cir. 2000) (reversed and remanded on denial of class certification in action against small consumer lending agency), citing, Crawford v. Equifax Payment Serv., Inc., 201 F.3d 877 (7th Cir. 2000); Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997); Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1164-65 (7th Cir. 1974). The number of possible litigants is not unmanageable, it is unlikely that the class consumers would be aware of their rights, and efficiency favors one litigation rather than forcing each person to pursue individual claims.
As a final matter, the court turns to the Waiver and Arbitration Agreement to determine the size of the Rule 23(b)(3) class. Plaintiffs argue that NCA has used the agreement as an opt-out divide to limit membership in the class, and that the agreement is invalid as confusing, coercive and misleading. Review of the agreement contradicts that assertion. Consumers are instructed to read the Arbitration Agreement and understand the terms before placing their initials on the bottom of the document. The waiver is in bold-faced type and identifies the litigation pending in this district. The waiver does not apply to claims, but rather the consumers' choice of forum. As such, consumers are not signing away a substantive right and nothing prevents contracting parties from including a provision in their agreements that refers statutory claims to arbitration. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); see also Thompson v. Illinois Title Loans, Inc., 2000 WL 45493 (N.D.Ill. 2000) (holding that plaintiffs agreeing to arbitrate did not sign away their ability to pursue substantive rights under TILA, but only their ability to use the procedural device of the class action in a judicial forum).
It is axiomatic that strong federal policy favors enforcing private Arbitration Agreements. See Agco v. Anglin, 216 F.3d 589 (7th Cir. 2000), citing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In the absence of any showing that the Arbitration Agreement is unenforceable or that plaintiffs' claims are not amenable to arbitration, this court will not permit those who have signed the Agreement to participate in the class.
Now, therefore,
IT IS ORDERED that plaintiffs' motion for class certification is granted pursuant to Rule 23(c)(1), subject to alteration or amendment before a decision on the merits. Such class shall consist of:
All Wisconsin consumers who have entered into loan agreements with NCA in the State of Wisconsin at any time since April 17, 1996, except for those who have signed a Waiver and Arbitration Agreement.
IT IS FURTHER ORDERED that on or before December 22, 2000, the parties shall submit to the court a proposed form of notice in compliance with Rule 23(c)(2).