Rhodes v. Olson Associates, P.C.

Filing 38

ORDER denying 13 Motion for Summary Judgment; granting 24 Cross Motion for Summary Judgment as to Liability; granting 25 Motion to Certify Class and for Appointment of Class Counsel. By Judge Christine M. Arguello on 03/13/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-00919-CMA-MJW
KELLIE RHODES, on behalf of herself and others similarly situated,
Plaintiff,
v.
OLSON ASSOCIATES, P.C., d/b/a OLSON SHANER,
Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR PARTIAL SUMMARY
JUDGMENT, GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT AS TO LIABILITY, AND CERTIFYING CLASS ACTION

This matter comes before the Court on Defendant Olson Associates, d/b/a Olson
Shaner’s (“Olson Shaner’s”) Motion for Summary Judgment (Doc. # 13), as well as
Plaintiff Kellie Rhodes’ Cross-Motion for Summary Judgment as to Liability (Doc. # 24)
and her Motion for Class Certification and Appointment of Class Counsel (Doc. # 25.)
Because the Court determines that there are no disputed facts as to whether
Defendant’s conduct violated the Fair Debt Collection Practices Act, it denies
Defendant’s Motion for Summary Judgment and grants Plaintiff’s Cross-Motion for
Summary Judgment. In addition, because the Court finds that Plaintiffs have met all of
the requirements of Federal Rule 23(a), the Court grants Plaintiff’s Motion for Class
Certification and Appointment of Class Counsel.

I. BACKGROUND 1
A. OLSON SHANER’S VOICEMAILS
The material facts of this Fair Debt Collection Practice Act case are quite
straightforward. Plaintiff Kellie Rhodes incurred a debt of $732.06 for emergency
medical care from APEX Emergency Group-St. Anthony North. APEX assigned this
debt to North American Recovery, Inc. (N.A.R.). (Doc. # 23-2 at 2.) Thereafter, N.A.R.
hired Olson Associates, P.C., d/b/a Olson Shaner, a law firm, to initiate legal
proceedings against Rhodes relating to this debt. (Doc. ## 13 at ¶ 4.) Olson Shaner
sent its “First Notice” regarding the debt to Rhodes on July 30, 2014. (Doc. # 13-1 at ¶
6.) The “First Notice” appeared on Olson Shaner’s letterhead, but was signed by
“Kelsey Mirelez, Attorney for N.A.R., Inc.” (Doc. # 23-2 at 2.)
Plaintiff called Olson Shaner on September 6, 2013, and spoke with a
representative named Liz; 2 Liz notified Plaintiff that she was speaking to Plaintiff in “an
attempt to collect a debt,” and that “[a]ny information obtained w[ould] be used for that
purpose and this call [was] being recorded.” (Doc. # 13-3.) During the call, Plaintiff
acknowledged receiving a letter “from an N.A.R. Attorney.” (Id. at 4:9-10.) Additionally,
Plaintiff stated that she was calling to obtain the name of that attorney, as she had lost
the letter during a move. (Id. at 3:13-16; 4:10-13.) Notwithstanding Liz’s offers to
answer questions regarding Plaintiff’s account, Plaintiff stated that she wished to obtain
a mailing address so she could respond in writing: “What I'd like to do is respond in

1

2

The following facts are undisputed, unless otherwise noted.
Liz’s last name was not provided in the call transcript.
2

writing and I'm just looking – I got a letter and I'm just looking for a – like a mailing
address where I could mail you a written response.” (Id. at 5:9-12.) Liz provided
Plaintiff with this name (Kelsie Morales) and two mailing addresses (one in Utah and
one in Colorado). (Id. at 3:13; 5:18-20; 7:12-18.) The next day, Plaintiff sent a letter to
Ms. Morales regarding her debt at both of these addresses. (Doc. # 13-4.) Her letter
indicated that the debt was referred to N.A.R. for repayment, despite the fact she had
been making monthly payments to the original creditor. (Id.)
Olson Shaner instructs its employees to use the following scripted voicemail
message (“the Scripted Voicemail”) when they attempt to reach alleged debtors and
those debtors do not answer the phone:
Hello, this message is for [debtor/co-debtor]. My name is [Olson Shaner
employee’s name] and I am with Olson Shaner. Please return my call
regarding a personal matter. I will be in the office today until [time], and
will return [tomorrow/on Monday] at [time]. I can be reached at 801-3639966 (UT/ID) 303-459-4799 (CO).
(Doc. # 23-3.) On September 17, 2013, an Olson Shaner representative named Tia
Metters left Plaintiff a materially identical version of the Scripted Voicemail, which was
recorded as follows:
Hi, this message is for Kellie Rhodes. Kellie, this is Tia with the law firm of
Olson Shaner. Please return my call regarding a personal matter. I'll be in
the office today until five and I will return tomorrow morning at 8:30. You
can reach me at 303-459-4799. Thank you.
(Doc. ## 13-5; 13-2 at 2 (log notes indicating that Defendant’s representative “left script
message” for Plaintiff on September 17.)) Ms. Metters left an identical voicemail
message for Plaintiff on both September 18 and 19, 2013. (Doc. ## 13-6; 13-7; 13-2.)
The content of these three messages is the subject of this action.
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B. CLASS CERTIFICATION
In her Motion for Class Certification and Appointment of Class Counsel (Doc. #
25), Plaintiff seeks to certify the following Class:
All persons (1) located in Colorado, (2) for whom Olson Associates, P.C.
left, or caused to be left, a voice message, (3) in connection with the
collection of a consumer debt, (4) between March 31, 2013 and March 30,
2014, (5) that failed to state that Olson Associates, P.C. was a debt
collector and/or that the purpose of the call was to collect a debt and/or
that any information would be used for that purpose.
Defendant has a written policy to leave scripted voicemail messages that are
very similar to those left for Plaintiff and that fail to disclose that (1) it is debt collector,
(2) it is calling to collect on a debt, and (3) that any information it collects will be used for
that purpose. See (Doc. ## 25-1 (Defendant’s “Leaving Message Policy,” bates
stamped OS000039); 25-2 at 9 (Defendant’s Responses to Plaintiff’s First Set of
Interrogatories, stating that “Any voicemail message that would have been left is
expected to be consistent with the voicemails at issue in this case and the document
attached hereto, carrying Bates-Stamp No. OS000039.”))
Defendant states that of its approximate 6,700 collection accounts, “the likelihood
that Defendant would have left a voicemail message is estimated to be about 50% of
those accounts [i.e., 3350 accounts]. However . . . Defendant would not be able to
determine the exact number of persons for whom Defendant left a message without
reviewing each of those individual accounts.” (Doc. # 25-2 at 8.) Additionally,
Defendant keeps individual records indicating when its representatives leave a “SCRIPT
MESSAGE” for alleged debtors. See, e.g. (Doc. # 13-2 at 2) (noting that it left Plaintiff a
“SCRIPT MESSAGE” on three different occasions in September of 2013); (Doc. # 29 at
4

6) (noting that “In order to determine whether a voicemail message was left, each of the
account notes would need to be reviewed to see if there are any notations regarding a
voicemail message.”)
C. PROCEDURAL HISTORY
On March 31, 2014, Plaintiff filed a putative Class Action Complaint against
Defendant for violations of the FDCPA (Doc. # 1.) Defendant then filed a Motion for
Summary Judgment on June 6, 2014. (Doc. # 13.) Plaintiff filed a Cross-Motion for
Summary Judgment as to Liability on July 9, 2014, and a Motion for Class Certification
and Appointment of Class Counsel on July 18, 2014. (Doc. ## 24, 25.)
II. LEGAL STANDARDS
A. SUMMARY JUDGMENT
Summary judgment is warranted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it is essential to the proper
disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc.,
259 F.3d 1226, 1231–32 (10th Cir. 2001). A dispute is “genuine” if the evidence is such
that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v.
Muskogee, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing motions for
summary judgment, a court must view the evidence in the light most favorable to the
non-moving party. Id. However, conclusory statements based merely on conjecture,
speculation, or subjective belief do not constitute competent summary judgment
evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

5

The moving party bears the initial burden of demonstrating an absence of a
genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In
attempting to meet this standard, a movant who does not bear the ultimate burden of
persuasion at trial does not need to disprove the other party’s claim; rather, the movant
need simply point the Court to a lack of evidence for the other party on an essential
element of that party’s claim. Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 671 (10th
Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met its initial burden, the burden then shifts to the
nonmoving party to “set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The nonmoving party
may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving
party must “set forth specific facts that would be admissible in evidence in the event of
trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at
671. “To accomplish this, the facts must be identified by reference to affidavits,
deposition transcripts, or specific exhibits incorporated therein.” Id.
The Court applies the same standard on cross motions for summary judgment.
Each party bears the burden of establishing that no genuine issue of material fact exists
and its entitlement to judgment as a matter of law. Atl. Richfield Co. v. Farm Credit
Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000). Cross motions for summary
judgment “are to be treated separately; the denial of one does not require the grant of
another.” Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). But where
the cross motions overlap, the Court may address the legal arguments together. Id. In

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this case, the legal issues and arguments presented by each summary judgment motion
are almost identical. Therefore, the Court addresses the legal issues together.
B. CLASS CERTIFICATION
A class may be certified only if all four of the following prerequisites are met:
(1) Numerosity: “the class is so numerous that joinder of all members is
impracticable”;
(2) Commonality: “there are questions of law or fact that are common to the
class”;
(3) Typicality: “the claims or defenses of the representative parties are typical of
the claims or defenses of the class”; and
(4) Adequacy of representation: “the representative parties will fairly and
adequately represent the interests of the class.”
Fed. R. Civ. P. 23(a). A party seeking class certification must show “under a strict
burden of proof” that all four requirements are clearly met, as well as show that the case
falls into one of the three categories set forth in Rule 23(b). Trevizo v. Adams, 455 F.3d
1155, 1161-62 (10th Cir. 2006); Shook v. El Paso Cnty., 386 F.3d 963, 971 (10th Cir.
2004); Tabor v. Hilti, Inc., 703 F.3d 1206, 1227 (10th Cir. 2013).
III. ANALYSIS
The Court will address the parties’ respective summary judgment motions before
turning to Plaintiff’s Motion for Class Certification.
A. FDCPA VIOLATIONS
Congress enacted the FDCPA (“the Act”) in 1977 to “eliminate abusive debt
collection practices by debt collectors, to insure that those debt collectors who refrain
from using abusive debt collection practices are not competitively disadvantaged, and to

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promote consistent State action to protect consumers against debt collection abuses.”
15 U.S.C. § 1692e. The Act prohibits a debt collector from using “any false, deceptive,
or misleading representation or means in connection with the collection of any debt.” 15
U.S.C. § 1692e. As pertinent to the present case, “the placement of telephone calls
without meaningful disclosure of the caller’s identity” is a violation of the Act, as is the
failure to disclose, in any “subsequent communication” with a debtor, that “that the
communication is from a debt collector.” 15 U.S.C. § 1692d; 1692e(11).
Because the FDCPA is a strict liability statute, Plaintiff need demonstrate only
one violation of its provisions to be entitled to a favorable judgment. Doshay v. Global
Credit Collection Corp., 796 F. Supp. 2d 1301, 1303-04 (D. Colo. 2011).
1. Required Elements Of The FDCPA
To establish a violation of the FDCPA, Plaintiff must prove the following four
elements:
(1) Plaintiff is any natural person who is a “consumer” within the meaning of
15 U.S.C. § 1692a(3);
(2) The “debt” arises out of a transaction entered primarily for personal,
family, or household purposes, 15 U.S.C. § 1692a(5);
(3) Defendant collecting the debt is a “debt collector” within the meaning of 15
U.S.C. § 1692a(6); and
(4) Defendant has violated, by act or omission, a provision of the FDCPA.
Duncan v. Citibank (S.D.), No. 06–246, 2006 WL 4063023, at *5 (D.N.M. June 30,
2006) (quoting 29 M. Wengert, Causes of Action 2d 1 § 49 (2005)).

Here, the first

three elements of Plaintiff’s claim are undisputed (Doc. # 23 at ¶¶ 1-5) – accordingly,
the Court’s analysis on summary judgment is limited to the fourth element.
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2. The Voicemail Messages Here Were “Communications,” and Because
Defendant Failed to Identify Itself as a Debt Collector, It Violated
15 U.S.C. § 1692e(11)
The Act broadly defines a “communication” as the “conveying of information
regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C.
§ 1692a(2) (emphasis added). Defendant argues that 15 U.S.C. § 1692e(11) (“Section
1692e”) – requiring disclosure “in subsequent communications that the communication
is from a debt collector” – is inapplicable to her claim, because the voicemail messages
at issue here were not “communications” as they did not “directly or indirectly” convey
“information regarding a debt.”
In support of its interpretation of “communication,” Defendant cites Marx v.
General Revenue Corp., 668 F.3d 1174, 1177 (10th Cir. 2011) aff'd, 133 S. Ct. 1166
(2013). In Marx, a debt collector sent a facsimile “employment verification form” to a
debtor’s employer. Id. at 1176. The form contained the debt collector’s name (“GRC”),
address, and phone number, as well as an “ID” number representing the debt collector’s
internal account number for Plaintiff. Id. The form explicitly indicated that its purpose
was to “verify employment” and to “request employment information,” and blanks were
left for the employer to fill in the individual’s employment status. Id. The Tenth Circuit
held that the form was not a “communication” for purposes of 15 U.S.C. § 1692c(b),
which provides that a “debt collector may not communicate, in connection with the
collection of any debt, with any person other than the consumer.” Id. at 1177. In doing
so, it noted:
A third-party “communication,” to be such, must indicate to the
recipient that the message relates to the collection of a debt; this is
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simply built into the statutory definition of “communication.” This fax
cannot be construed as “conveying” information “regarding a debt.”
Nowhere does it expressly reference debt; it speaks only of “verify[ing]
[e]mployment.” Nor could it reasonably be construed to imply a debt.
In order to substantiate the claim that the facsimile “conveys” information
“regarding a debt,” either “directly or indirectly,” Ms. Marx had the burden
of proving such a conveyance; the standard is not whether the facsimile
could have had such an implication. . . . [A]bsent any evidentiary
showing that Ms. Marx's employer either knew or inferred that the
facsimile involved a debt, the facsimile does not satisfy the statutory
definition of a “communication.” A party may seek to verify
employment status (without hinting at a debt) for any number of reasons,
including as part of processing a mortgage, conducting a background
check before hiring, or determining eligibility for an extension of credit.
Id. (emphasis added).
Marx’s reasoning is inapplicable here for several reasons. Most significantly,
Marx involved a “third party” communication under an entirely different statutory section
(Section 1692c(b)) – not a communication directly to the debtor under Section 1692e.
In Marx, the Tenth Circuit made it clear that it was specifically interpreting a “third party
‘communication,’” in noting that “a single fax, innocuous, nondescript, and harmless,
which [the debt collector] sent only to gather information needed to weigh a statutory
right of garnishment” was “manifestly not the sort of conduct the FDCPA is meant to
quell.” Id. at 1183. Specifically, it stated that “[t]he ban on communicating with third
parties like employers is meant to protect debtors from harassment, embarrassment,
loss of job, denial of promotion,” and that plaintiff was “unable to testify that anyone at
her office had any idea what the fax concerned.” Id. (emphasis added).
In contrast, the Scripted Voicemails left here were not left for a third party for the
purpose of employment verification; instead, they were left for Plaintiff directly, for the
sole purpose of collecting a debt, and thus the concern was not so much
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embarrassment, loss of job, or denial of promotion, but whether Plaintiff was aware that
a debt collector was attempting to reach her. 3 Although the Scripted Voicemail did not
“directly” convey information regarding a debt, it did so “indirectly” – in particular, it
conveyed that Plaintiff could resolve her debt by contacting Olson Shaner. 4 See
Ramirez v. Apex Fin. Mgmt., LLC, 567 F. Supp. 2d 1035, 1041 (N.D. Ill. 2008)
(emphasis added) (finding it “apparent that messages left on a debtor's answering
machine can be considered indirect communications regarding the debt, even if the
debt collector fails to expressly mention that the call pertains to collection, payment,
deadlines or any other observable characteristics of a collection call. Any other
interpretation would require a claimant to prove, without exception, that the debt
collector conveyed direct information about the debt. This is not what the statute
calls for, and this is not the first time such a narrow interpretation of the statute has
been rejected”). Indeed, Defendant appears to concede this point when it argues
3

The Court recognizes that the Act places debt collectors between the proverbial “rock and a
hard place” when it comes to leaving voicemail messages. Debt collectors must choose
between violating Section 1692d(6) and Section 1692e(11) (by leaving messages which do not
clearly identify themselves as debt collectors), or violating 15 U.S.C. § 1692c(b)’s third-party
privacy requirement (by violating the debtor’s privacy rights by identifying themselves as debt
collectors in a message that could be heard by third parties). See Zortman v. J.C. Christensen
& Associates, Inc, 870 F. Supp. 2d 694, 699 (D. Minn. 2012). Other courts, recognizing this
problem, have concluded that it constitutes the “cost of doing business” if debt collectors choose
to utilize particular technological methods, i.e., voicemail, for debt collection. See, e.g.,
Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1354 (11th Cir. 2009) (“[I]f [the debt
collector's] assumption is correct, the answer is that the [FDCPA] does not guarantee a debt
collector the right to leave answering machine messages”); Leyse v. Corp. Collection Servs.,
Inc, No. 03 CIV. 8491, 2006 WL 2708451, at *5 (S.D.N.Y. Sept. 18, 2006). This Court’s job is
to enforce the statute as written. Thus, the remedy does not lay in this Court, but in obtaining
legislative reform. Indeed, despite large technological developments, the FDCPA has not been
substantively amended since its passage in 1977, when voicemail technology was unavailable.
4

In the alternative, for these same reasons, the message could be “reasonably be construed to
imply a debt.” Marx, 668 F.3d at 1177.
11

elsewhere that because Plaintiff and Defendant’s representatives “had prior interactions
where it was made clear that Olson Shaner was attempting to collect a debt from
Plaintiff,” that Plaintiff was already aware of the debt-collection purpose of the call.
(Doc. # 26 at 3.)
This common-sense interpretation of what it means to “indirectly” convey
information regarding a debt is supported by the Federal Trade Commission’s (“FTC’s”)
advocacy of a broad interpretation of the scope of section 1692e. 5 See FTC Staff
Commentary on the FDCPA, 53 Fed. Reg. 50097–02, at *50099 (Dec. 13, 1988). The
FTC explained that some contacts with consumers can violate the FDCPA because
they at least “indirectly” refer to the debt, even if a monetary obligation or the word
“debt” is not specifically mentioned:
For example, there is no doubt that a debt collector who has previously
contacted a consumer about a debt violates [the Act] if he calls the
consumer at 3 AM and says only “Hi, this is Joe, I haven't forgotten you”—
the words may not refer to the debt, but the consumer will know from
previous collection efforts by “Joe” what the call is about. The words “or
indirectly” in the definition make it clear that Congress intended a
common sense approach to this situation.
Id. (emphasis added). Although the FTC does not promulgate regulations pertaining to
the FDCPA, as the agency tasked with enforcement of the statute, its interpretation
lends helpful support here. See Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C.,
5

Defendant’s Notice of Supplemental Authority (Doc. # 31) pointed the Court to a recent
decision from the District of Kansas, which applied the Tenth Circuit’s reasoning from Marx and
held that a voicemail containing only the caller’s name and requesting a call back was not a
“communication” because it did not “expressly reference debt” and the recipient could not “infer
that the message involved a debt.” Hagler v. Credit World Servs., Inc., No. 13-CV-2452-DDCJPO, 2014 WL 4954595, at *7 (D. Kan. Oct. 1, 2014). The Court examined this decision, but as
it discussed at supra, pp. 10-11, it disagrees that Marx’s reasoning can be extended to nonthird-party communications, as such an extension would significantly undermine the protections
of 1692e(11).
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111 F.3d 1322, 1327 n.8 (7th Cir. 1997) (giving “due weight” to the FTC’s “informed
interpretation” of a statutory term in the FDCPA); Kaltenbach v. Richards, 464 F.3d 524,
528 (5th Cir. 2006) (deferring to the above-cited FTC’s Staff Commentary on the
FDCPA, 53 Fed. Reg. 50097–02, at *4 (Dec. 13, 1988), in defining a statutory term).
Unsurprisingly, the FTC’s “common sense” reading of what it means to
“indirectly” communicate with a debtor about a debt is in line with the view of the
majority of cases 6 on this point in other district courts across the country. See, e.g.,
Foti, 424 F. Supp. 2d at 655-56 (“Defendant’s voicemail message, while devoid of any
specific information about any particular debt, clearly provided some information, even if
indirectly, to the intended recipient of the message. Specifically, the message advised
the debtor that the matter required immediate attention, and provided a specific number
to call to discuss the matter. Given that the obvious purpose of the message was to
provide the debtor with enough information to entice a return call, it is difficult to imagine
how the voicemail message is not a communication under the FDCPA” ); Costa v. Nat'l
Action Fin. Servs., 634 F. Supp. 2d 1069, 1076 (E.D. Cal. 2007) (“Although the
messages do not mention specific information about plaintiff's debt or the nature of the
call, § 1692a(2) applies to information conveyed ‘directly or indirectly.’ Here,
6

The federal courts have divided on the question of whether a voicemail message that does not
specifically mention the purpose or subject of its call – like the voicemails here – constitutes a
“communication” under the Act. See Chatman v. GC Servs., LP, No. 3:14-CV-00526-CMC,
2014 WL 5783095, at *5 (D.S.C. Nov. 6, 2014) (noting that the argument that a voicemail was
not a “communication” because it did not explicitly convey information about a debt “rests on a
clear minority interpretation of the FDCPA's definition of ‘communication’”); see also Lee v.
Robinson, Raegan & Young, PLLC, No. 3:14-CV-0748, 2015 WL 328323, at *5 (M.D. Tenn.
Jan. 26, 2015) (noting split). However, “[t]he weight of authority falls in favor of a broad
interpretation [of ‘communication’], and most courts to decide this issue have held that
voicemails are communications that must conform to the disclosure requirements of section
1692e(11).” Lensch v. Armada Corp., 795 F. Supp. 2d 1180, 1188-89 (W.D. Wash. 2011).
13

defendant’s messages conveyed information to plaintiff, including the fact that there was
a matter that she should attend to and instructions on how to do so”); Belin v. Litton
Loan Servicing, LP, No. 8:06-CV-760, 2006 WL 1992410, at *4 (M.D. Fla. July 14,
2006) (“messages left on answering machines that did not directly convey information
about a debt [are] still communications under the FDCPA, because they conveyed
information about a debt indirectly, since the purpose of the message is to get the
debtor to return the call to discuss the debt”); Hosseinzadeh v. M.R.S. Associates, Inc.,
387 F. Supp. 2d 1104, 1116 (C.D. Cal. 2005) (same).
Moreover, this interpretation of “communication” is consistent with the Act’s
broad mandate to protect consumers. See Johnson v. Riddle, 305 F.3d 1107, 1117
(10th Cir. 2002) (“Because the FDCPA . . . is a remedial statute, it should be construed
liberally in favor of the consumer.”) Defendant’s overly exacting definition of what it
means to “indirectly” convey information about a debt to a consumer would not only
defeat a liberal construction, but would produce an absurd result: consumers would
entirely lose the Act’s protections under Section 1692e(11) if debt collectors were to
leave messages obscuring their true identity and the purpose for their call. This reading
of the statute simply cannot be squared with the purpose of Section 1692e – i.e., to
prevent the use of “any false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C. § 1692e (emphasis added); see
also Lee v. Robinson, Raegan & Young, PLLC, No. 3:14-CV-0748, 2015 WL 328323, at
*6 (M.D. Tenn. Jan. 26, 2015) (citing cases) (holding a message in which a caller
identified herself as an employee of a law firm constituted a “communication” from a

14

debt collector despite the fact that it did not include the words “debt” or reference the
purpose of the call, because, the Act, “when read broadly as Congress intended,
includes non-specific communications between debt collectors and consumers”); Foti,
424 F. Supp. 2d at 657-58 (noting that a narrow reading of “communication” in section
1962e “would be inconsistent with Congress’s intent to protect consumers from ‘serious
and widespread’ debt collection abuses”); Ramirez, 567 F. Supp. 2d at 1041 (noting that
a strict interpretation of what it means to “indirectly” communicate to a debtor would fail
to give proper consideration to “Congress’s intent in enacting the FDCPA, which calls
for a broad construction of its terms in favor of the consumer”). Allowing such cryptic
messages to escape the FDCPA’s reach would also undercut the Act’s intent to help
consumers “understand, make informed decisions about, and participate fully and
meaningfully in the debt collection process.” See Clark v. Capital Credit & Collection
Services, Inc., 460 F.3d 1162, 1171 (9th Cir. 2006).
Accordingly, because the Court has concluded that the three voicemails
constituted “communications” for purposes of Section 1962e, and because it is
undisputed that Olson Shaner failed to disclose that the communications were “from a
debt collector,” as required by Section 1692e(11), Defendant violated that statutory
provision, and Plaintiff is entitled to summary judgment on this claim.
3. The Voicemails Left for Plaintiff Did Not Provide “Meaningful
Disclosure” of Defendant’s Identity And Thus Violated Section 1692d(6)
The FDCPA prohibits a debt collector from engaging in “any conduct the natural
consequence of which is to harass, oppress, or abuse any person in connection with the
collection of a debt,” and provides that such conduct includes “the placement of
15

telephone calls without meaningful disclosure of the caller’s identity.” 15 U.S.C. §
1692d(6) (“Section 1692d”) (emphasis added). In this case, it is undisputed that, in
each of her three voicemail messages, Olson Shaner’s representative 1) identified
herself by her first name; 2) identified her employer, Olson Shaner; 3) identified Olson
Shaner as a “law firm”; and 4) stated that the phone call involved a “personal matter.”
Accordingly, the Court must determine whether these four pieces of information
constituted “meaningful disclosure” of “the caller’s identity.”
Importantly, in determining whether a debt collection practice is deceptive or
misleading, that practice “must be viewed objectively from the perspective of the ‘least
sophisticated consumer.’” Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 219
(N.D.N.Y. 2010). This objective standard “ensure[s] that the FDCPA protects all
consumers, the gullible as well as the shrewd . . . the ignorant, the unthinking and the
credulous.” Clomon v. Jackson, 988 F.2d 1314, 1318–19 (2d Cir. 1993). At least seven
federal Courts of Appeal have applied the least sophisticated consumer standard 7 to
alleged violations of Section 1692e, applying to “false and misleading representations.” 8
The Tenth Circuit has not expressly adopted this standard in a published opinion, but it
has released an unpublished opinion applying an “objective” standard, “measured by

7

See, e.g., LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1194 (11th Cir. 2010); Lesher v.
Law Offices of Mitchell N. Kay, PC, 650 F.3d 993, 1002 (3d Cir. 2011); Hartman v. Great
Seneca Fin. Corp., 569 F.3d 606, 612 (6th Cir. 2009); Donohue v. Quick Collect, Inc., 592 F.3d
1027, 1033 (9th Cir. 2010); Evory v. RJM Acquisitions Funding, LLC, 505 F.3d 769, 774 (7th
Cir. 2007) (using the “unsophisticated consumer” standard); Duffy v. Landberg, 215 F.3d 871,
873 (8th Cir. 2000) (same); Clomon, 988 F.2d at 1318-19.

8

The Court has found no legal authority to indicate that a different standard would apply to
claims arising under section 1692d, nor is there reason to conclude that a different standard
would apply.
16

how the least sophisticated consumer would interpret the notice received from the debt
collector.” Ferree v. Marianos, 129 F.3d 130, 1997 WL 687693, at *1 (10th Cir. Nov. 3,
1997) (citing Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996)); see also Fouts v.
Express Recovery Servs., Inc., No. 14-4046, 2015 WL 427425, at *3 (10th Cir. Feb. 3,
2015) (noting that a purported violation did not meet the “least sophisticated consumer”
standard).
In interpreting any statute, the Court must “determine congressional intent, using
traditional tools of statutory construction.” United States v. Manning, 526 F.3d 611, 614
(10th Cir. 2008). The plain language of § 1692d requires that the disclosure of identity
be “meaningful,” and that section specifically targets the caller’s “identity” as the
specific piece of information that must be shared with consumers. Compare 15 U.S.C.
§ 1692d(6) (requiring “meaningful disclosure of the caller’s identity”) to 15 U.S.C. §
1692e(11) (mandating that, in an initial communication, a debt collector state that she is
“attempting to collect a debt and that any information obtained will be used for that
purpose”). As Judge Babcock explained in holding that the name of a debt collection
company must be disclosed under Section 1692d, the relevant “identity” at issue is that
of the debt collector qua debt collector:
A caller’s given name has no real “meaning” to a consumer—the human
caller is not the entity which owns or seeks the debt; the consumer would
not satisfy the debt by writing a check to the caller; nor would the
consumer sue the caller personally for violating the FDCPA. Thus, the
only way for an identity disclosure to be meaningful to a consumer is if it
discloses the name of the debt collection company. . . . Given the
information that § 1692d(6) targets, there are only three constructions of
“meaningful disclosure of the caller's identity:” either it requires disclosing
the caller's personal name (or alias), the debt collection company's name,

17

or both. A liberal construction favoring the consumer would require
disclosing the debt collection company's name.
Torres v. ProCollect, Inc., 865 F. Supp. 2d 1103, 1105 (D. Colo. 2012).
Although no circuit courts have passed on what, precisely, is required for
disclosure of a “caller’s” identity to be “meaningful” for purposes of Section 1692d, other
district courts, including this one, have concluded that such disclosure would minimally
involve the name of the debt collection company – and, as a logical corollary, the nature
of the caller’s business, if the business name (e.g., “Olson Shaner”) does not obviously
demonstrate the nature of the business (i.e., the caller’s “identity” as a debt collector).
See, e.g., id.; Doshay v. Global Credit Collection Corp., 796 F. Supp. 2d 1301, 1304 (D.
Colo. 2011) (citing Costa v. Nat'l Action Fin. Servs., 634 F.Supp.2d 1069, 1074 (E.D.
Cal. 2007)) (“Meaningful disclosure requires that the debt collector state his or her
name, capacity, and provide enough information to the consumer as to the purpose of
the call”); Hosseinzadeh, 387 F. Supp. 2d at 1112 (“‘meaningful disclosure’ presumably
requires that the caller must state his or her name and capacity, and disclose enough
information so as not to mislead the recipient as to the purpose of the call or the reason
the questions are being asked”); Wright v. Credit Bureau of Georgia, Inc., 548 F. Supp.
591, 597 (N.D. Ga. 1983) (same). This interpretation is consistent with a broad reading
of the statute and makes good sense in light of the FDCPA’s protective purposes:
consumers can only “understand, make informed decisions about, and participate fully
and meaningfully in the debt collection process” if consumers know that the caller they
are receiving a message from is working with a debt collector. See Clark, 460 F.3d at
1171.
18

Here, it is undisputed that the caller who left Plaintiff voicemails identified herself
as calling from Olson Shaner, a “law firm.” Defendant’s only argument that this
represents “meaningful disclosure” of Olson Shaner’s identity rests on its assumption
that a consumer would be able to remember the nature of Olson Shaner’s business
(i.e., that it was a law firm engaged in debt collection) from prior interactions with Olson
Shaner. Specifically, Defendant points to the “First Notice” letter, received
approximately two months before Plaintiff received a Scripted Voicemail (which, notably,
was signed by an attorney from “N.A.R., Inc.”) and Plaintiff’s phone call, placed ten days
prior to the first Scripted Voicemail (in which the only mention of “Olson Shaner”
occurred in the very beginning of the call).
Although this assumption might well be true when it comes to particularly shrewd
consumers with excellent recall, whether “meaningful disclosure” occurred is viewed
objectively, from the perspective of the “least sophisticated consumer.” It would not be
readily apparent to the “least sophisticated” consumer that Olson Shaner, in describing
itself as a “law firm” calling about a vague “personal matter,” was acting as a debt
collector, and the call was placed for the sole purpose of collecting on a debt.
Moreover, the voicemails here provided no other suggestion or clues that they came
from a debt collector rather than a law firm, and dealt with a debt rather than a “personal
matter.” Put another way, “this is not a case where the fact that the communication is
from a debt collector would be apparent even to the least sophisticated consumer.”
See Foti, 424 F. Supp. 2d at 669. Instead, a consumer would have to, upon hearing the
message, recall that she had previously communicated with Olson Shaner. This

19

represents an “unreasonable” burden on “[t]he least sophisticated consumer, who may
receive voluminous messages and calls.” Id. Indeed, allowing debt collectors to
circumvent the “meaningful disclosure” requirements by pointing to its prior
communications with a consumer would effectively “eviscerate the statute’s protections
in subsequent communications, placing the burden on the consumer to recall the first
communication and draw the connection to the second communication.” Id.
In sum, because Defendant’s messages did not “meaningfully disclose” Olson
Shaner’s identity, the voicemails also violated Section 1692d(6), and Plaintiff is similarly
entitled to summary judgment on this claim.
B. CLASS CERTIFICATION
1. The Class Definition
In her Motion for Class Certification and Appointment of Class Counsel (Doc. #
25), Plaintiff seeks to certify the following Class:
All persons (1) located in Colorado, (2) for whom Olson Associates,
P.C. left, or caused to be left, a voice message, (3) in connection with
the collection of a consumer debt, (4) between March 31, 2013 and
March 30, 2014, 9 (5) that failed to state that Olson Associates, P.C.
was a debt collector and/or that the purpose of the call was to collect a
debt and/or that any information would be used for that purpose.
Defendant specifically objects to the fifth component of this definition, contending
that it would make it “nearly impossible to identify potential class members. Such an
inquiry is likely to involve potentially thousands of hearings, with the production of
potentially thousands of voicemail messages (if they are even available) to determine

9

This period represents the one year prior to the filing of Plaintiff’s Complaint.
20

whether they meet Plaintiff’s proposed class definition.” (Doc. # 29 at 5.) As the Court
discusses below, in its discussion of whether Plaintiff meets Rule 23(a)(3)’s “typicality”
requirement, given Defendant’s own record-keeping practices and the possibility of
electronic keyword searching, the identification of class members will not be nearly as
difficult as Defendant asserts. Nevertheless, the Court agrees that the fifth element of
the proposed definition is imprecise, because it appears to conflate Section 1962e(11)’s
disclosure requirements in the case of an “initial communication” (i.e., “that the debt
collector is attempting to collect a debt and that any information obtained will be used
for that purpose”) with its disclosure requirement in a “subsequent communication”10
(i.e., “that the communication is from a debt collector.”)
Defendant proposes that that subsection (5) of Plaintiff’s proposed definition be
modified to read: “(5) where Olson Associates, P.C. left a message for the consumer
that is materially identical to the following message:
Hi, this message is for (debtor/co-debtor). This is (Olson Shaner
employee's name) with the law firm of Olson Shaner. Please return my
call regarding a personal matter. I will be in the office today until (time),
and will return (tomorrow/on Monday) at (time). You can reach me at
(number).”
The Court finds Defendant’s proposed definition to be superior because it is more
precise (as to the specific “subsequent communication” claims in this case), and, per
Defendant’s representations, could streamline the process of identifying potential class
members. As such, the definition of the class is:

10

It appears that only “subsequent” (not “initial”) communications are at issue here, as
Defendant seems to send “Initial Notice” letters to its account holders prior following up with
voicemails.
21

All persons (1) located in Colorado, (2) for whom Olson Associates, P.C. left, or
caused to be left, a voice message, (3) in connection with the collection of a
consumer debt, (4) between March 31, 2013 and March 30, 2014, (5) where
Olson Associates, P.C. left a message for the consumer that is materially
identical to the following message:
Hi, this message is for (debtor/co-debtor). This is (Olson Shaner
employee's name) with the law firm of Olson Shaner. Please return
my call regarding a personal matter. I will be in the office today until
(time), and will return (tomorrow/on Monday) at (time). You can
reach me at (number).
2. The Requirements of Rule 23(a)
Rule 23(a) of the Federal Rules of Civil Procedure sets forth the following
prerequisites to class certification:
One or more members of a class may sue or be sued as a representative parties
on behalf of all only if
(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 an adequately protect the interests
of the class.
Fed.R.Civ.P. 23(a). As the party seeking class certification, Plaintiff must demonstrate
that all four prerequisites of Rule 23(a) are clearly met, as well as show that this case
falls into one of the three categories set forth in Rule 23(b). See Shook, 386 F.3d at
971; Tabor, 703 F.3d at 1227. In deciding whether certification is appropriate, doubts
should be resolved in favor of certification. See Esplin v. Hirschi, 402 F.2d 94, 99 (10th
Cir. 1988) (“if there is error to be made, let it be in favor and not against the
maintenance of a class action.”)

22

a. Numerosity
In order to meet this element, “[t]he burden is upon [a] plaintiff[] seeking to
represent a class to establish that the class is so numerous as to make joinder
impracticable.” Trevizo, 455 F.3d at 1162 (internal quotation omitted). There is “no set
formula to determine if the class is so numerous that it should be so certified.” Rex v.
Owens ex rel. State of Okla., 585 F.2d 432, 436 (10th Cir. 1978). Instead, this is a factspecific inquiry, and the district court has wide discretion in making this determination.
Trevizo, 455 F.3d at 1162.
Plaintiff has satisfied numerosity here. It is undisputed that approximately 3350
individuals with collections accounts received at least one voicemail message that
conformed to Defendant’s “Scripted Voicemail.” Joinder of this number of Plaintiffs
would be impracticable.
Defendant did not challenge Plaintiff’s argument that she established numerosity,
except in stating that “the parties and the Court are likely to encounter significant
difficulties in identifying the potential class members.” (Doc. # 29 at 8.) Specifically,
Defendant argues that “In order to review each account in a timely fashion, several
individuals would be required to review the applicable accounts, which is likely to take
several weeks, even if the individuals worked a full work week to participate in this task.”
(Id. at 6.)
“Although the identity of individual class members need not be ascertained
before class certification, the membership of the class must be ascertainable.” Manual
For Complex Litigation (Fourth) § 21,222 (2004). “An identifiable class exists if its

23

members can be ascertained by reference to objective criteria.” Id. Ascertainability
requires that “[t]he method of determining whether someone is in the class must be
administratively feasible” and must not depend on “individualized fact-finding or minitrials.” Donaca v. Dish Network, LLC., 303 F.R.D. 390, 396-97 (D. Colo. 2014) (citing
Carrera v. Bayer Corp., 727 F.3d 300, 307 (3d Cir. 2013)). That Defendant may need to
search its existing records does not mean, however, that this class is “unascertainable.”
The determination of whether a particular individual received a Scripted Voicemail is
readily and objectively determinable according to Defendant’s own record-keeping
measures, which specifically note when one of Defendant’s representatives left a “Script
Message” for an account holder. See, e.g., (Doc. # 13-2 at 2) (noting that it left Plaintiff
a “SCRIPT MESSAGE” on three different occasions in September of 2013); (Doc. # 29
at 6) (noting that “In order to determine whether a voicemail message was left, each of
the account notes would need to be reviewed to see if there are any notations regarding
a voicemail message.”) Compare Donaca, 303 F.R.D. at 396-97 (holding that a class
was not ascertainable because, “despite his counsel’s best efforts, plaintiff has been
unable to identify any individual or phone number that received a telemarketing call from
those platforms or dealers on those dates other than [the named plaintiff] himself.
Apparently any records that could have identified such persons or calls have been lost
or destroyed”).
b. Commonality
In order to demonstrate commonality, plaintiffs must also show that there are
questions of law or fact common to the class. Fed. R. Civ. P. 23(a)(2). Not all

24

questions of law and fact need be common to the class, but, as the Supreme Court
recently clarified, this requirement is not met merely because the putative class
members allegedly “all suffered a violation of the same provision of law.” See Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Indeed, it is not just the presence
of common questions that matters, but the ability of the class action device to “resolve
an issue that is central to the validity of each one of the claims in one stroke.” See id.
“The district court retains discretion to determine commonality because it is ‘in the best
position to determine the facts of the case, to appreciate the consequences of
alternative methods of resolving the issues of the case and . . . to select the most
efficient method for their resolution.’” J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289
(10th Cir. 1999) (internal citation omitted).
The overriding common question here is grounded in Defendant’s Scripted
Voicemail and whether that Scripted Voicemail violated the FDCPA. Defendant has
estimated that approximately 3350 of its account holders received a materially identical
Scripted Voicemail, 11 and, accordingly, Plaintiff has met its burden to show shared
issues of fact and law, as resolution of this claim would resolve whether Defendant
violated the FDCPA as to a particular account holder “in one stroke.” See Dukes, 131
S. Ct. at 2551; see also Collins v. Erin Capital Management, LLC, 290 F.R.D. 689, 696
11

Specifically, Defendant admitted that “Any voicemail message that would have been left [for
other putative class members] is expected to be consistent with the voicemails at issue in this
case.” (Doc. # 25-2 at 9.) That the messages were presumably modified so as to include the
name of the particular Olson Shaner representative who was calling and the name of the
alleged debtor is immaterial. See Lang v. Winston & Winston, P.C., 2001 WL 641122, *4 (N.D.
Ill. 2001) (though there was "variety in the language of the [debt collection] letters," the
"common nucleus of operative fact" remained and commonality was found); Talbott v. GC
Services Ltd. Partnership, 191 F.R.D. 99, 103 (W.D. Va. 2000) ("mailing a standardized [debt
collection] letter satisfies commonality").
25

(S.D. Fla. 2013) (commonality satisfied where plaintiff “alleges he suffered the same
FDCPA violation as the proposed class”); Manno v. Healthcare Revenue Recovery
Group, LLC, 289 F.R.D. 674, 684 (S.D. Fla. 2013) (commonality satisfied where “[t]he
key question is whether [defendant] violated the FDCPA by leaving a voice message for
putative class members, during the class period, without disclosing that the
communication was from a debt collector. This overriding common question, which is
subject to common resolution, is enough to establish commonality”).
c. Typicality
Rule 23(a)(3) requires the claims of a named plaintiff to be “typical” of the claims
of the class she seeks to represent. However, the interests and claims of a named
plaintiff and class members need not be identical to satisfy typicality. DG ex rel.
Stricklin v. Devaughn, 594 F.3d 1188, 1198-99 (10th Cir. 2010). Provided that the
claims of named plaintiffs and class members are based on the same legal or remedial
theory, differing fact situations of the class members do not defeat typicality. Id.
Here, the named Plaintiff’s claims are based upon the same fact pattern – the
receipt of a Scripted Voicemail – as the claim of every other member of the putative
class. Additionally, the named Plaintiff advances the same legal theory as the putative
class in support of the defendant’s liability, i.e., that these Scripted Voicemails violate
the FDCPA. Accordingly, the named Plaintiff has met the burden of showing that her
claims are typical of those of the class. See Manno, 289 F.R.D. at 687 (Plaintiff's
“claims are typical because he alleges that [defendant] called him . . . and failed to
disclose the call was from debt collector. To prove his own case, [plaintiff] will have to

26

set forth proof that such calls, which affected all class members, violated the FDCPA.”);
Hale v. AFNI, Inc., 264 F.R.D. 402, 405 (N.D. Ill. 2009) (named plaintiff's claim was
“typical to the class because it arises from the same form letter allegedly received by all
class members, and it is based on the same legal theory that the letter violates the
FDCPA”); Chapman v. Worldwide Asset Management, L.L.C., 2005 WL 2171168 (N.D.
Ill. 2005) (typicality satisfied when "all members of the class will be persons who
received the form notice,” named plaintiff received the form notice, and there was no
indication that named plaintiff was “situated differently than other members of the
class”).
Moreover, as discussed in the Court’s summary judgment holding, the Court
need not “delve into whether each putative class member did, or did not, have prior
contact with [Defendant] and whether each class member did, or did not, have prior
knowledge that [Defendant] was a debt collector.” See Manno, 289 F.R.D. at 684-85.
This is “because the statute requires a debt collector to identify itself on every call and
whether it did so or not is decided by reference to an objective inquiry – whether the
‘least sophisticated consumer’ would know.’” Id. “Thus, whether [Plaintiff] or other class
members were actually misled, or were subjectively unaware that [Defendant] was a
debt collector, is not an individualized issue defeating commonality.” Id.; see also
Mailloux v. Arrow Financial Services, LLC, 204 F.R.D. 38, 41-42 (E.D.N.Y. 2001) (an
objective standard is used for determining FDCPA violations so the court did “not have
to make an individual determination of each potential class member’s subjective
understanding of the [debt collection] letter in question”).

27

d. Fair and Adequate Representation of the Class
Rule 23(a)(4) requires that the representative parties “fairly and adequately
protect the interests of the class.” In the Tenth Circuit, adequacy of representation
depends on resolution of two questions. Rutter & Wilbanks Corp. v. Shell Oil Co., 314
F.3d 1180, 1188 (10th Cir. 2002). These questions are: “‘(1) do the named plaintiffs
and their counsel have any conflicts of interest with other class members and (2) will the
named plaintiffs and their counsel prosecute the action vigorously on behalf of the
class?’” Id. at 1187–88 (internal citation omitted).
Plaintiff contends that there are no conflicts between the named Plaintiff,
counsel, or other class members. The named Plaintiff submitted an affidavit indicating
that she will vigorously prosecute the action on behalf of the class and that she
understands her responsibilities as a class representative. (Doc. # 25-3.) As far as
class counsel are concerned, Plaintiff asserts that her counsel are experienced class
action litigators, particularly of consumer-related class actions. (Doc. # 25 at 11.) Since
Defendant has not raised any issue concerning the adequacy of either the class
representative or class counsel, and there is no reason to question Plaintiff’s assertions,
Plaintiff has satisfied the adequacy of representation requirement.
3. The Requirements of Rule 23(b)(3)
Plaintiff seeks class certification under Rule 23(b)(3), which allows for class
certification if “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 efficient

28

adjudication of the controversy.” Where common questions “predominate,” a class
action can achieve economies of time, effort, and expense as compared to separate
lawsuits, permit adjudication of disputes that cannot be economically litigated
individually, and avoid inconsistent outcomes, because the same issue can be
adjudicated the same way for the entire class. Fed. R. Civ. P. 23(b)(3), advisory
committee’s note (1966).
Plaintiff meets the predominance requirement here for the same reasons
previously discussed with regard to commonality and typicality. Namely, the questions
of law or fact common to the members of this class predominate over individual issues,
because the Scripted Voicemail was Defendant’s standardized policy. See Kimball,
2011 WL 3610129, at *6 (“[Plaintiff’s] claim and the claims of the proposed class
members all rest on the question of whether or not the [Defendant’s] Message violates
the FDCPA. Accordingly, the Court finds that the predominance requirement of Rule
23(b)(3) is satisfied”); Pawelczak v. Fin. Recovery Servs., Inc., 286 F.R.D. 381, 387
(N.D. Ill. 2012) (“[A] debt collector violates the FDCPA by placing a telephone call and
failing to meaningfully disclose its identity. As such, the Court finds [Plaintiff’s] proposed
class satisfies Rule 23(b)(3)’s predominance requirement.”).
As for the superiority requirement, Rule 23(b)(3) sets forth four nonexclusive
factors in determining whether this factor is met:
(A) the class members’ interests in individually controlling the prosecution
or defense of separate actions; (B) the extent and nature of any litigation
concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and (D) the likely difficulties in managing a
class action.
29

Application of these factors shows that a class action is the superior method to
adjudicate this case. No class member has demonstrated an interest in prosecuting a
claim individually, there are no other cases against Defendant involving the issues
presented in this case by a proposed class member, the forum is desirable as the
proposed class contains Colorado residents only, and there will be no difficult casemanagement issues because the facts and claims are very straightforward and the
evidence necessary to prosecute the case is within Defendant’s records. Additionally,
the FDCPA permits individual plaintiffs to recover up to $1,000 in statutory damages.
See 15 U.S.C. § 1692k. Thus, the potential recovery for an individual plaintiff is unlikely
to provide sufficient incentive for individual members to bring their own claims.
Moreover, courts have held that FDCPA class actions are usually superior for reasons
of judicial economy. See, e.g., Abels v. JBC Legal Grp., P.C., 227 F.R.D. 541, 547
(N.D. Cal. 2005); Piper v. Portnoff Law Associates, 262 F. Supp. 2d 520 (E.D. Pa. May
15, 2003); Brink v. First Credit Resources, 185 F.R.D. 567 (D. Ariz. 1999).
IV. CONCLUSION
For the reasons detailed above, the Court DENIES Defendant’s Motion for
Summary Judgment (Doc. # 13), GRANTS Plaintiff’s Cross-Motion for Summary
Judgment as to Liability (Doc. # 24), and finds that Defendant’s “Scripted Voicemail”
messages, left for the named Plaintiff on three different occasions, violated 15 U.S.C.
§§ 1692d(6) and 1692e(11). It is
FURTHER ORDERED that, having found the requirements of Rule 23(a) and
Rule 23(b)(3) satisfied, the Court GRANTS Plaintiff’s Motion for Class Certification and

30

Appointment of Class Counsel (Doc. # 25). Plaintiff's proposed class is certified under
Federal Rule of Civil Procedure 23(b), and Plaintiff’s counsel is appointed to represent
the following class:
ALL PERSONS (1) LOCATED IN COLORADO, (2) FOR WHOM OLSON
ASSOCIATES, P.C. LEFT, OR CAUSED TO BE LEFT, A VOICE MESSAGE, (3)
IN CONNECTION WITH THE COLLECTION OF A CONSUMER DEBT, (4)
BETWEEN MARCH 31, 2013 AND MARCH 30, 2014, (5) WHERE OLSON
ASSOCIATES, P.C. LEFT A MESSAGE FOR THE CONSUMER THAT IS
MATERIALLY IDENTICAL TO THE FOLLOWING MESSAGE:
HI, THIS MESSAGE IS FOR (DEBTOR/CO-DEBTOR). THIS IS
(OLSON SHANER EMPLOYEE'S NAME) WITH THE LAW FIRM
OF OLSON SHANER. PLEASE RETURN MY CALL REGARDING
A PERSONAL MATTER. I WILL BE IN THE OFFICE TODAY
UNTIL (TIME), AND WILL RETURN (TOMORROW/ON MONDAY)
AT (TIME). YOU CAN REACH ME AT (NUMBER).

DATED: March 13, 2015
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

31