Lewis v. ARS National Services, Inc. et al
OPINION AND ORDER granting 40 Motion to Certify Class, as further set out. Signed by Honorable Judge Myron H. Thompson on 9/6/11. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
WANDA GRIFFIN LEWIS, on
behalf of herself and all )
others similarly situated, )
ARS NATIONAL SERVICES,
INC., d/b/a Associated
Recovery Systems, and
LVNV FUNDING, LLC.,
CIVIL ACTION NO.
OPINION AND ORDER
In this lawsuit, plaintiff Griffin Lewis claims that
Recovery Systems) and LVNV Funding, LLC, have routinely
sent collection letters containing a privacy notice that
defendants’ debt-collection practices violate the FDCPA,
and costs and attorneys’ fees.
This case is now before the court on Lewis’s motion
following class certified:
“(i) all persons with addresses in
Alabama (ii)to whom Defendants sent, or
caused to be sent, a letter in the form
of Exhibit A (attached to the Complaint)
containing a section entitled “PRIVACY
NOTICE” (iii) in an attempt to collect
an alleged [debt] originally owed to JC
Penney (iv) which, as shown by the
nature of the alleged debt, Defendant’s
records, or the records of the original
creditors, was primarily for personal,
family, or household purposes (v) which
were not returned undeliverable by the
U.S. Post Office (vi) during the period
one year prior to the date of filing
this action, i.e. - November 12, 2008
through November 12, 2009.”
Mot. Class Cert. at 1 (Doc. No. 40).
For the reasons
that follow, Lewis’s motion for class certification will
STANDARD FOR CLASS CERTIFICATION
“Rule 23 [of the Federal Rules of Civil Procedure]
establishes the legal roadmap courts must follow when
determining whether class certification is appropriate.”
Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181,
1187 (11th Cir. 2003).
The party seeking to maintain the
class action bears the burden of demonstrating that all
the requirements of Rule 23 have been met.
“For a district court to certify a class action, the
named plaintiffs must have standing, and the putative
class must meet each of the requirements specified in
Federal Rule of Civil Procedure 23(a), as well as at
least one of the requirements set forth in Rule 23(b).”
Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir.
2004); see also Valley Drug, 350 F.3d at 1188.
23(a) has four prerequisites the proposed class must
meet: numerosity, commonality, typicality, and adequacy
of representation.1 Amchem Products, Inc. v. Windsor, 521
Rule 23(a), in full, is as follows:
“One or more members of a class may sue
or be sued as representative parties on
behalf of all members only if: (1) the
class is so numerous that joinder of all
members is impracticable, (2) there are
U.S. 591, 613 (1997); see also Washington v. Brown &
Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir.
Furthermore, the court must determine whether the
class action may be maintained as one of the types of
classes under Rule 23(b).2
The named plaintiff bears the
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).
The three types of class actions maintainable
under Rule 23(b) are as follows:
“(1) the prosecution of separate actions
by or against individual members of the
class would create a risk of (A)
inconsistent or varying adjudications
with respect to individual members of
incompatible standards of conduct for
the party opposing the class, or (B)
adjudications with respect to individual
members of the class which would as a
practical matter be dispositive of the
interests of the other members not
burden of meeting all of the requirements of sections (a)
and (b) of Rule 23, Babineau v. Federal Exp. Corp., 576
substantially impair or impede their
ability to protect their interests; or
“(2) the party opposing the class has
acted or refused to act on grounds
generally applicable to the class,
declaratory relief with respect to the
class as a whole; or
“(3) the court finds 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
controversy. The matters pertinent to
the findings include: (A) the interest
of members of the class in individually
controlling the prosecution or defense
of separate actions; (B) the extent and
nature of any litigation concerning the
controversy already commenced by or
against members of the class; (C) the
concentrating the litigation of the
claims in the particular forum; (D) the
difficulties likely to be encountered in
the management of a class action.”
Fed. R. Civ. P. 23(b).
F.3d 1183, 1189-90 (11th Cir. 2009), and a failure to do
so precludes class certification.
Valley Drug, 350 F.3d
at 1188 (citing Amchem, 521 U.S. at 615-18).
A court considers the question of class certification
separately from the merits of the action.
See Vega v.
T-Mobile USA, Inc., 564 F.3d 1256, 1266 (11th Cir. 2009).
In deciding whether to certify a class, the district
court has broad discretion.
Brown & Williamson Tobacco
Corp., 959 F.2d at 1569.
Though the district court
should not determine the merits of the case at the classcertification stage, it should consider them “to the
degree necessary to determine whether the requirements of
Rule 23 will be satisfied.”
Vega, 564 F.3d at 1266
(quoting Valley Drug Co., 350 F.3d at 1188); see also
(“sometimes it may be necessary for the court to probe
behind the pleadings”).
Lewis, a resident of Troy, Alabama, acquired a debt
from the company J.C. Penny Consumer in the amount of
LVNV Funding, a South Carolina company and one
of a conglomerate of enterprises known as the “Sherman
Companies,” engages in the business of debt collection
and acquired Lewis’s debt after it was in default.
assigned the debt to Associated Recovery Systems for
Following this assignation, Lewis received
a letter from Associated Recovery Systems dated November
14, 2008, informing her that LVNV Funding had purchased
her debt from J.C. Penny and explaining the ensuing
The letter also contained a “privacy
notice,” which is the subject of this suit.
As stated, Lewis, as the named plaintiff, bears the
burden of establishing all four prerequisites of Rule
23(a), as well as at least one of the requirements of
F.3d at 1188.
Klay, 382 F.3d at 1250; Valley Drug, 350
The court will address these requirements
Rule 23(a) Prerequisites
For class certification to be appropriate, Rule 23(a)
requires that “the class [be] so numerous that joinder of
all members is impracticable.”
Fed. R. Civ. P. 23(a)(1).
including, for example, the size of the class, ease of
identifying its numbers and determining their addresses,
facility of making service on them if joined and their
Kilgo v. Bowman Transp., Inc.,
789 F.2d 859, 878 (11th Cir. 1986).
There is no bright-
line rule as to when a class is sufficiently numerous to
Cox v. American Cast Iron Pipe
Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (noting that
“while there is no fixed numerosity rule, ‘generally less
than twenty-one is inadequate, more than forty adequate,
23.05 at n.7 (1978)).
Here, Lewis alleges that Associated Recovery Systems
Mot. Class Cert. ¶ 4 (Doc. No. 40).
from defense counsel supports that allegation.
factual evidence to show that joinder of all of the
potential plaintiffs would be presumptively impractical,
based purely on the size of the class alleged.
564 F.3d at 1267 (noting that “a plaintiff ... bears the
burden of making some showing, affording the district
court the means to make a supported factual finding, that
Thus, the court finds that the alleged
class satisfies the numerosity requirement.
Under Rule 23, there must be “questions of law or
fact common to the class” for certification.
requirement, “a class action must involve issues that are
susceptible to class-wide proof.”
244 F.3d 807, 811 (11th Cir. 2001).
Murray v. Auslander,
Here, Lewis alleges
that Associated Recovery Systems, on behalf of LVNV, sent
alleged class members.
Therefore, whether the privacy
notice contained in the letters violates the FDCPA is a
satisfying the commonality requirement.
See Swanson v.
Mid Am, Inc., 186 F.R.D. 665, 668 (M.D. Fla. 1999)
(Adams, J.) (“To establish commonality, it is sufficient
that Plaintiff allege that all class members received the
same collection letter.”).
Rule 23(a)’s third requirement is that “the claims or
defenses of the representative parties are typical of the
claims or defenses of the class.”
Fed. R. Civ. P.
“The commonality and typicality requirements
of Rule 23(a) tend to merge.”
General Telephone Co. of
Southwest v. Falcon, 457 U.S. 147, 158 n.13 (1982).
is because “[b]oth serve as guideposts for determining
whether under the particular circumstances maintenance of
interrelated that the interests of the class members will
be fairly and adequately protected in their absence.”
The Eleventh Circuit Court of Appeals has described
plaintiff’s claims and the common questions of law or
fact shared among the class.
Kornberg v. Carnival Cruise
Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984), cert.
denied, 470 U.S. 1004 (1985).
“A sufficient nexus is
established if the claims or defenses of the class and
the class representative arise from the same event or
pattern or practice and are based on the same legal
The named representative and the other
class members need not have identical claims or defenses,
Here, Lewis alleges that she and the other class
Consequently, their claims “arise from
the same ... pattern or practice,” id., and are in fact
satisfied, as well.
Adequacy of Representation
The final requirement of Rule 23(a) is that “the
representative parties will fairly and adequately protect
the interests of the class.”
Fed. R. Civ. P. 23(a)(4).
protect the legal rights of absent class members” by
ensuring that the class representative will defend those
Kirkpatrick v. J.C. Bradford & Co.,
827 F.2d 718, 726 (11th Cir. 1987).
The inquiry usually
plaintiffs’ counsel and on “whether [the] plaintiff
ha[s] interests antagonistic to those of the rest of the
Id. (quoting Griffin v. Carlin, 755 F.2d 1516,
1532 (11th Cir. 1985)).
The named plaintiff must also be
Lewis has submitted an affidavit in which she affirms
that she understands the nature of this lawsuit and her
responsibilities as a class representative.
Templeton and O. Randolph Bragg.
She has also
Templeton and Bragg
including their background in consumer matters and class
The court sees no reason that Lewis’s
The court is also satisfied that Templeton and
Bragg are “qualified, experienced, and generally able to
conduct the proposed litigation.”
Kirkpatrick, 827 F.2d
Therefore, the representation of the proposed
class action is adequate.
As stated previously, in addition to satisfying all
of the prerequisites of Rule 23(a), a putative class must
also meet at least one of the requirements of Rule 23(b).
Klay, 382 F.3d at 1250; Valley Drug, 350 F.3d at 1188.
Lewis seeks a class certification under Rule 23(b)(3),
which allows certification if “the court finds that the
predominate over any questions affecting only individual
members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating
Fed. R. Civ. P. 23(b)(3).
23(b)(3) adds predominance and superiority to the class-
In adding those requirements,
“the Advisory Committee sought to cover cases ‘in which
a class action would achieve economies of time, effort,
and expense, and promote ... uniformity of decision as to
procedural fairness or bringing about other undesirable
Amchem Products, Inc. v. Windsor, 521 U.S.
advisory committee’s note).
Rule 23(b)(3) includes a
list of factors a court should consider when evaluating
members of the class in individually controlling the
controversy already commenced by or against members of
the class; (C) the desirability or undesirability of
encountered in the management of a class action.”
R. Civ. P. 23(b)(3).
“The Rule 23(b)(3) predominance inquiry tests whether
proposed classes are sufficiently cohesive to warrant
adjudication by representation.”
Amchem, 521 U.S. at
The predominance inquiry is more demanding than the
commonality inquiry; issues susceptible to class-wide
Vega, 564 F.3d at 1270; see also
Klay, 382 F.3d at 1255.
“Whether an issue predominates
can only be determined after considering what value the
resolution of the class-wide issue will have in each
class member's underlying cause of action.”
Avis Rent-A-Car Sys., 211 F.3d 1228, 1234 (11th Cir.
certification must make an independent inquiry “into the
superiority of the class action over other available
methods of adjudication.”
Allison v. Citgo Petroleum
Corp., 151 F.3d 402, 414 (5th Cir. 1998).
under 23(b)(3) is often appropriate for cases in which
individual damages are low, thereby providing little
Amchem, 521 U.S. at 617.
incentive for individual suits.
A court should also consider manageability of the class
when assessing both predominance and superiority.
v. General Motors Acceptance Corp., 169 F.R.D. 671, 676
American Telephone & Telegraph Co., 95 F.3d 1014, 1023
(11th Cir. 1996)).
In general, “[p]redominance is a test readily met in
certain cases alleging consumer ... fraud.”
U.S. at 625.
Here, not only will class-wide issues of
proof predominate, but it is unlikely that there will be
any issues of individualized proof.
To determine whether
the collection letters sent by American Recovery Systems
violated the FDCPA, the court will not need to question
whether each class member was deceived or misled by the
consumer” standard governs.
Jeter v. Credit Bureau,
Inc., 760 F.2d 1168, 1175 (11th Cir. 1985); see also
Swanson, 186 F.R.D. at 668 (“Additionally, the Court need
putative plaintiffs read or were confused by the notice,
consumer’ would have been misled.”).
Thus, the only
individualized proof necessary will be whether each class
member received a letter identical to Lewis’s.
that is a prerequisite for joining the class, the court
finds that common questions of fact and law predominate
in this case.
Individual damages under the FDCPA are capped at $ 1,000.
15 U.S.C. § 1692k(2)(A).
This is an inadequate incentive
for most consumers to spend the time and money required
for successful litigation.
Therefore, looking to the
first factor listed in 23(b)(3), the court finds that
“the interest of members of the class in individually
A class action will also “achieve economies
of time, effort, and expense,” as intended by the rule’s
drafters, thereby increasing judicial efficiency.
Rule Civ. P. 23(b)(3) advisory committee’s note.
the fourth factor listed in Rule 23(b)(3), the court does
not see any reason that the proposed class will present
any particular manageability problems.
See Fed. R. Civ.
Whether the Class is Artificially Restrictive
certification, ARS and LVNV do not actually dispute that
the proposed class meets the four prerequisites of Rule
23(a), and the predominance and superiority requirements
of Rule 23(b)(3).
Instead, the defendants contend that
restrictive and designed to allow for the maintenance of
separate class action complaints based on the exact same
Defs.’ Resp. at 1 (Doc. No. 48).
agencies other than ARS, and seeks to collect debts
originally owed to creditors other than J.C. Penney.
Every debtor from whom LVNV seeks to collect receives the
same privacy notice.
Because the debt-collection agency
utilized and the original creditor are “immaterial to the
determination of whether the privacy notice violates the
FDCPA,” id. at 3, the defendants argue that any class
Id. at 1.
As support for their argument, the defendants state
that Lewis’s own reasoning supports certifying a broader
If, as Lewis contends, “the principal legal
violated the FDCPA,” Pl.’s Mot. at 7 (Doc. No. 41), then
it does not matter who mailed the letter or who the
original creditor was.
The defendants say that Lewis’s
support certifying a broader class, again because those
expanded, the defendants argue that LVNV could be subject
to multiple suits, wherein different results could be
statutory damages multiple times.
According to the defendants, the court “can expand
the class or consolidate it with other classes to capture
all similar plaintiffs,” Defs.’ Resp. at 10 (Doc. No.
48), which will better serve the goals of efficiency and
They cite a Florida district case alleging
violations of the securities laws in support of this
Sherleigh Associates LLC v. Windmere-Durable
Holdings, Inc., 184 F.R.D. 688 (S.D. Fla. 1999) (Lenard,
numerous putative class actions that had already been
filed in court in New York and Florida.
Id. at 690-91.
The Sherleigh court went on to determine which of the
proposed lead plaintiffs was most fit to represent the
class, id. at 692, and set out a process for designating
Id. at 696-97.
However, in Sherleigh the
court consolidated the existing cases under Federal Rule
Litigation Reform Act of 1995, Pub. L. No. 104-67, 109
sections of 15 U.S.C.), and its choices of lead plaintiff
and class counsel were governed by the Reform Act as
Furthermore, the Sherleigh court did not expand
the class sought to be certified by adding any class
members not encompassed already by one of the proposed
Consequently, the court does not find
that Sherleigh presents a persuasive basis for expanding
the class Lewis seeks to have certified.
In response to the defendants, Lewis states that,
“There is [no] authority that requires the certification
of the broadest possible class.”
Pl.’s Reply at 1 (Doc.
She cites Mace v. Van Ru Credit Corp., 109 F.3d
338 (7th Cir. 1997), in support of her contention that
In Mace, a district court had denied class
certification in a FDCPA case on the ground that the
plaintiff had sought to certify a class limited to the
State of Indiana.
The court reasoned that the FDCPA's
damages limitation “was intended to place a limit on
required, rather than state-by-state suits.
Id. at 342.
The Seventh Circuit Court of Appeals reversed.
court compared the FDCPA to other statutes with similar
language, like the Truth in Lending Act (“TILA”), 15
U.S.C. § 1601 et seq.
The court noted one important
difference between the statutes: TILA requires that “the
total recovery ... in any class action or series of class
actions arising out of the same failure to comply by the
same creditor shall not be more than the lesser of
Id. (quoting TILA, 15 U.S.C. § 1640(a)(2)(B))
In contrast, while the damages cap in
the FDCPA is the same as that in TILA, the phrase “or
series of class actions” is absent from the FDCPA.
the Seventh Circuit reasoned, the FDCPA’s damages cap
does not apply to a series of class actions, thereby
The court in Mace stated that it “[knew] of no
authority requiring the participation of the broadest
Id. at 341.
In addition, the Mace
limitation in the FDCPA would not necessarily “become
district court had feared.
Id. at 344.
Circuit felt that the one-year statute of limitations in
the FDCPA would make multiple lawsuits more difficult,
and noted that there was “no way of telling whether such
repeated class actions are possible or likely, here or
generally,” which made requiring a nationwide class at
that stage premature.
Furthermore, the court found
that, “if a debt collector is sued in one state, but
continues to violate the statute in another, it ought to
be possible to challenge such continuing violations.”
This court finds the analysis and reasoning in Mace
persuasive in assessing the defendants’ arguments in the
Like the defendants in Mace, LVNV and
ARS have pointed to no authority for the proposition that
the court should use its discretion to require a broader
In addition, the defendants have presented no
serial lawsuits based on the privacy notice at issue.3
3. At the time the defendants filed their response
to Lewis’s motion for class certification, a similar suit
against LVNV was pending in this court.
See Smith v.
The court declines to force Lewis to broaden her proposed
class based on an unsupported fear.
The class, as
currently defined, fulfills all of the requirements of
That is all that the law demands, and this
court will not require more based on the mere possibility
that it would advance efficiency.
See Hubbard v. M.R.S.
Associates, Inc., 2008 WL 5384294, at *4 (S.D. Ind. Dec.
19, 2008) (Hamilton, C.J.) (adopting the Mace reasoning
and refusing to broaden the proposed class definition
beyond the one-year timeframe requested by the plaintiff,
even if that might increase efficiency and help avoid
duplicative litigation); Nichols v. Northland Groups,
Inc., 2006 WL 897867, at *10 (N.D. Ill. Mar. 31, 2006)
(Pallmeyer, J.) (also adopting the Mace reasoning and
holding that “This court concludes that neither the FDCPA
Allied Interstate, Inc. et al., case no. 1:09-cv-1007MEF. However, Smith has since been resolved. See Smith,
09-cv-1007, Joint Stipulation of Dismissal of all Claims
(Doc. No. 48).
proposes to certify.”).
Accordingly, it is ORDERED that:
(1) Plaintiff Wanda Griffin Lewis’s motion for class
certification (Doc. No. 40) is granted;
(2) A plaintiff class is certified consisting of (i)
all persons with addresses in Alabama (ii) to
whom defendants ARS National Services, INC.,
Funding, LLC. sent, or caused to be sent, a
letter in the form of Exhibit A (attached to the
“PRIVACY NOTICE” (iii) in an attempt to collect
an alleged debt originally owed to J.C. Penney
records of the original creditors, was primarily
for personal, family, or household purposes (v)
which were not returned undeliverable by the
U.S. Post Office (vi) during the period one year
prior to the date of filing this action, i.e.
November 12, 2008 through November 12, 2009; and
(3) Said class is represented by plaintiff Wanda
Templeton, Esq. and O. Randolph Bragg, Esq.
DONE, this the 6th day of September, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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