dissenting.
I believe that the trial court did not abuse its discretion in finding that, for purposes of OCGA § 9-11-23 (a), Peacock and the class of Swainsboro Rite Aid customers shared common questions of law and *579fact and that Peacock was a sufficiently typical representative of the class. Accordingly, I disagree with the majority that the trial court erred in so finding.
Peacock’s breach of duty, breach of fiduciary duty, breach of contract, and unjust enrichment claims are based on Rite Aid’s alleged duty to protect the confidentiality of the class members’ pharmacy records. He claims that Rite Aid breached that duty by selling those records to Walgreens without Peacock’s and the class members’ written consent. “What matters to class certification ... is not the raising of common ‘questions’ — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”1
The class members, whose prescriptions were sold in a single transaction, were similarly situated both factually and legally insofar as, for example, the application of the statutes and regulations governing the confidentiality and the transfer of pharmacy records to that discreet sale.2 Whether Rite Aid did or did not violate statutory and common law in selling the records can provide common answers needed to resolve the litigation.3 The majority, however, concludes that because (i) Peacock could not show that he suffered any actual financial or physical injury and (ii) there were individualized wrongs and defenses, the evidence did not present sufficiently common questions of fact and law as to whether Rite Aid committed any legally cognizable wrong when it sold the pharmacy records to Walgreens. The majority also concludes that the trial court erred in finding that Peacock was a sufficiently typical representative of the class.
“One or more members of a class may sue or be sued as representative parties on behalf of all only if... (2) There are questions of law or fact common to the class.”4 As recognized by the majority, *580Peacock must show that the class members suffered the same injury.5 But even assuming that Peacock was unable to point to any actual financial or physical injury arising from the sale of his pharmaceutical information,6 “[t]he law infers some damage from the tortious invasion of rights and allows nominal damages when there is no evidence of a particular loss to vindicate the rights of the plaintiff.”7 Further, the Plaintiffs allege the unlawful disclosure of confidential pharmaceutical records for money.“[ B] reach of fiduciary duty negates the unfaithful agent’s right to any compensation____”8 Thus, Peacock showed a single transaction that, if unlawful, would result in an injury common to all class members.
Nor do individualized wrongs or defenses necessarily preclude certification of the class. “[A]s long as the common questions predominate, a class may be certified even if some individual questions of law or fact exist.”9 As the trial court found, Rite Aid did not obtain written authorization from Peacock or other customers agreeing to the sale of the pharmacy records to Walgreens. It is Peacock’s contention that the statutes, regulations, and documents upon which Rite Aid’s alleged duties rest prohibit the release of confidential pharmaceutical information without prior written consent.10 Thus, unlike Carnett’s, Inc. v. Hammond,11 or Perez v. Atlanta Check *581Cashers,12 Rite Aid’s liability, should the transfer of the records without written consent be found unlawful, does not require an individualized inquiry into the class members’ relationship to Rite Aid or suggest that there is a need to investigate whether each class member did or did not appropriately consent to the transfer of the pharmacy records.
The majority also concludes that the claims and defenses of Peacock are not typical of the claims and defenses of the class. “The typicality requirement under OCGA § 9-11-23 (a) is satisfied upon a showing that the defendant committed the same unlawful acts in the same method against an entire class.”13 Peacock has alleged that Rite Aid wronged the members of the class in the same way by unlawfully selling their pharmacy records in a single transaction, and so Peacock is a typical member of the class in that respect.14 As the majority points out, Peacock also continued to use Walgreens to fulfill his prescription needs following the sale while simultaneously insisting that Rite Aid’s sale of his prescriptions to Walgreens was wrongful. If Peacock’s conduct raises the possibility that he ratified or waived his objections to the sale at issue, it is not clear that his conduct was atypical of the class. Furthermore,
although a defense may arise and may affect different class members differently, this occurrence does not compel a finding that individual issues predominate over common ones. So long as a sufficient constellation of common issues binds class members together, variations in the sources and application of a defense will not automatically foreclose class certification.15
Thus, while Peacock has shown that he is typical of the class members insofar as his claims, Rite Aid does not point to evidence that “any potential defenses would yield a different result for any class member other than [Peacock].”16 Should Rite Aid later show that Peacock is not typical of the class because of Rite Aid’s waiver and ratification defense, or that individualized questions may predominate in light of *582Rite Aid’s affirmative defenses,17 the trial court is free to revisit the issue. “It bears emphasis that certification orders are ‘inherently tentative,’ and the trial court retains jurisdiction to modify or even vacate them as may be warranted by subsequent events in the litigation.”18 But the record does not establish an abuse of discretion by the trial court in finding that Peacock was a typical member of the class.
Decided March 22, 2012 Reconsideration denied April 12, 2012 Alston & Bird, Andrew J. Tuck, James C. Grant, Drew, Eckl & Farnham, Stevan A. Miller, for appellant. Hamilton & Maddox, Lance J. Hamilton, Bell & Brigham, John C. Bell, Leroy W. Brigham, for appellees.For these reasons, I respectfully dissent.
I am authorized to state that Presiding Judge Barnes and Judge McFadden join in this dissent.
Wal-Mart Stores v. Dukes,_U. S._,_(II) (A) (131 SC 2541, 180 LE2d 374) (2011) (citation and punctuation omitted).
See OCGA § 26-4-80 (d); Ga. Comp. R. & Regs. r. 480-16-,07 (d) (4). Of course, “[a]ny assertion that the named plaintiff cannot prevail on [his] claims does not comprise an appropriate basis for denying class certification.” Village Auto Ins. Co. v. Rush, 286 Ga. App. 688, 692 (2) (649 SE2d 862) (2007) (citation and punctuation omitted).
Peacock takes the position that its unjust enrichment claim does not necessarily turn on a violation of a legal or contractual duty in selling the records, but whether it would be inequitable for Rite Aid to profit from the sale. But Rite Aid’s conduct can provide common answers to this question as well. See, e.g., Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 721 (698 SE2d 19) (2010) (class action plaintiff contended insurer unjustly enriched itself when it made no effort to determine when unearned premiums were owed and to repay the same); Fortis Ins. Co. v. Kahn, 299 Ga. App. 319, 320 (683 SE2d 4) (2009) (affirming class certification for claims including unjust enrichment).
OCGA §9-11-23 (a).
Dukes, supra,_U. S. at_.
The conclusion that Peacock could show no injury at all from the sale of confidential medical records, no matter how slight, is also inconsistent with the importance of the duties Rite Aid is alleged to have breached. See, e.g., Sletto v. Hosp. Auth. &c., 239 Ga. App. 203, 205(1) (521 SE2d 199) (1999) (noting that “[tjhis case is not simply an action concerning the emotional consequences on a plaintiff arising out of a defendant’s alleged commission of a negligent tort [but] involves the unauthorized release of psychiatric records,” and “to refuse summarily to hold [defendants] accountable for their actions might encourage even more carelessness in the future”).
Land v. Boone, 265 Ga. App. 551, 554 (594 SE2d 741) (2004) (citations omitted). In addition, we recognized in Land that “to sue a tortfeasor to bring the defendants to public approbation and penitence by an adverse verdict for nominal damages has long been part of our common law.” Id. at 553. See also OCGA § 13-6-6 (“In every case of breach of contract the injured party has a right to damages, but if there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action.”); King v. Brock, 282 Ga. 56, 57 (646 SE2d 206) (2007) (“Nominal damages come into play when an injured party establishes a breach of contract, but is unable to prove actual damages.”); Pavesich v. New England Life Ins. Co., 122 Ga. 190, 202 (50 SE 68) (1905) (special damages are not required to recover for breach of privacy).
Vinson v. E.W. Buschman Co., 172 Ga. App. 306, 309-310 (1) (323 SE2d 204) (1984).
Rush, supra at 691 (1).
For example, Peacock points to Rite Aid’s “Notice of Privacy Practices,” which provide that “we will obtain your written Authorization before using or disclosing protected health information” other than for certain listed and authorized purposes.
279 Ga. 125 (610 SE2d 529) (2005).
302 Ga. App. 864 (692 SE2d 670) (2010).
Liberty Lending Svcs. v. Canada, 293 Ga. App. 731, 738 (1) (b) (668 SE2d 3) (2008) (citation and punctuation omitted).
Davis v. Northside Realty Associates, 95 FRD 39, 43 (N.D. Ga. 1982) (“[s]ince all plaintiffs must establish the same basic elements to prevail and since there are no differences as to the type of relief sought or the theories of liabilities upon which plaintiffs are proceeding, the typicality requirement is met”).
Fortis Ins. Co., supra at 324 (2) (c).
Id. (emphasis in original).
See generally Waste Mgmt. Holdings v. Mowbray, 208 F3d 288, 296 (III) (A), n. 4 (1st Cir. 2000) (“when the defendant’s affirmative defenses . . . may depend on facts peculiar to each plaintiff’s case, class certification is erroneous”) (citation and punctuation omitted).
J.M.I.C. Life Ins. Co. v. Toole, 280 Ga. App. 372, 378 (2) (c) (634 SE2d 123) (2006) (citation omitted).