Battle v. Law Offices of Charles W. McKinnon, P.L. et al

Filing 36

ORDER CERTIFYING CLASS and Preliminarly Approving in Part Settlement Agreement (Settlement Hearing set for 9/9/2013 01:00 PM in Fort Pierce Division before Judge K. Michael Moore.) Signed by Judge K. Michael Moore on 3/5/2013. (rg1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

Case No. 2:12-cv-14172-KMM
GINA BATTLE, on behalf

ofherself and all others similarly situated,

Plaintiff,
vs.
LAW OFFICES OF CHARLES W. MCKINNON,
P.L., a Florida Professional Limited Liability
Company, and CHARLES W. MCKINNON,
individually,
Defendants.

ORDER CERTIFYING CLASS AND PRELIMINARILY APPROVING IN PART

SETTLEMENT AGREEMENT

THIS CAUSE came before the Court upon the Parties' Joint Motion for Class
Certification and Preliminary Approval of Class Settlement (ECF No. 32). Dec1arations (ECF
Nos. 33, 34) were filed in support of the Parties' Joint Motion. UPON CONSIDERA TION of
the Motion, the Dec1arations, the pertinent portions of the record, and being otherwise fully
advised in the premises, this Court enters the following Order.
I. BACKGROUND

This eas e arises under the Fair Debt Collection Practices Act, 15 V.S.e. § 1692, et seq.
("FDCP A''). Plaintiff Gina BattIe is aresident of Indian River County, Florida. Defendants are
engaged in the business of collecting consumer debts by means of mail and telephone. Plaintiff
alleges that on February 20, 2012, Defendants sent a letter to Plaintiff in an attempt to colleet a
debt purportedly owed by Plaintiff to her homeowner's association.
1

Am. Compl., Ex. A

(ECF No. 16-1); Ex. B (ECF No. 16-2). According to Plaintiff, this 1etter violated the FDCPA
by misstating "the applicable legal standard with regard to the need of Plaintiff to dispute the
validity of the debt in writing" and being "deceptive to the least sophisticated consumer with
regard to hislher legal rights" in violation of 15 U.S.C. § 1692g. Am. Compl.,

~

33 (ECF No.

15). Plaintiff alleges that Defendants sent similar letters to between fifty and one hundred other
persons. Mot. for Class Cert.,

~

13. The Parti es negotiated the claims and eventually finalized a

settlement and are now moving for class certification and preliminary approval of the class
action settlement.
On January 7, 2012, the Parties filed the instant Joint Motion for Class Certification and
Preliminary Approval of Class Settlement. Despite the Parties' agreement, however, this Court
has an independent obligation to "conduct a rigorous analysis of the [Federal Rule of Civil
Procedure] 23 prerequisites before certifying a class." Vega v. T-Mobile US.A., Inc., 564 F.3d
1256, 1266 (11th Cir. 2009) (citations and quotations omitted). Furthermore, this Court must
also decide whether, having met these pre-requisites, the proposed class satisfies the
requirements ofRule 23(b)(3). Likewise, this Court has an independent obligation under Federal
Rule of Civil Procedure 23(e) to determine that a "settlement is fair, adequate and reasonable and
is not the product of collusion between the parties." United States v. Alabama, 271 Fed. App'x
900-01 (11th Cir. 2008) (quoting Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1997)).

II. CLASS CERTIFICATION
A. Standard ofReview
"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 Federa! Rule of Civil

2

Procedure 23(a), as weIl 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). Rule 23(a) requires a putative class to meet
the requirements of numerosity, commonality, typicality, and adequacy of representation. See
FED. R Cry. P. 23(a); Vega, 564 F.3d at 1265. Here, Plaintiff seeks certification pursuant to
Rule 23(b)(3), which requires two additional findings, specifically: "(1) that common questions
of law or fact predominate over questions affecting only individual members ('predominance');
and (2) that a class action is superior to other available methods for adjudicating the controversy
('superiority')." Vega, 564 F.3d at 1265. While a district court must not decide the merits of the
case at the class certification stage, it "can and should consider the merits . . . to the degree
necessary to determine whether the requirements ofRule 23 will be satisfied." Vega, 564 F.3d at
1266 (citations omitted).
B. Class Definition and Standing
"Before anaIyzing the RuIe 23(a) requirements ... a court must determine whether the
class definition is adequate." O'Neill v. The Home Depot U.S.A., Inc., 243 F.RD. 469, 477
(S.D. FIa. 2006). A class shouId be accurateIy defined; certification should be denied where the
class definition is "overly broad, amorphous, and vague, or where the number of individualized
determinations required to determine class membership becomes too administrativeIy difficult."
Perez v. Metabolife Int'!, Inc., 218 F.RD. 262, 269 (S.D. FIa. 2003). Here, the requirement of
an accurate class definition is satisfied:

Plaintiffs class definition is concise, specific, and

readily identifies individuals who comprise the putative class.

Specifically, Plaintiff seeks

recovery for:
(i) all persons with addresses in the United States (ii) to whom Defendants sent
a letter (iii) containing the language contained in Exhibit A of the Amended
3

Class Action Complaint which included the Notice in the same form as Exhibit
B of the Amended Class Action Complaint (iv) which was not retumed
undeliverable (v) incurred for personal, family, or household purposes (vi)
from May 13, 2011 through the date of class certification.
Mot. for Class Cert., at 1 (emphasis in originaI). Such a group is readily identifiable.
Further, Plaintiff has adequately demonstrated that she, and each of the other members of
the putative class, has standing to seek relief in this case. To have standing, a pIaintiff must
show (1) an "injury-in-fact," (2) a causal connection between the alleged injury and defendant's
challenged action, and (3) that "the injury will be redressed by a favorable decision." Shotz v.
Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (citing Luian v. Defenders of Wildlife, 504 V.S.
555,560-61 (1992». Each member of the putative class meets all three prongs. Class members
have allegedly suffered a violation of their statutory rights under the FDCPA, the violations
resulted from Defendants' mailings, and class members may receive reliefthrough ajudgment in
this Court. Accordingly, Plaintiff and the putative class have standing to bring this case.
C. Rule 23(a) Requirements

1. Numerosity

Rule 23 requires a class to be "so numerous that j oinder of all members is impracticable."
FED. R. Ov. P. 23(a)(1). As a general rule, a class ofIess than 21 members is inadequate, and a
class ofmore than 40 members is adequate. See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546,
1553 (11th Cir. 1986); see also NEWBERG & CONTE, NEWBERG ON CLASS ACTIONS § 3.45 (4th
ed. 2009) ("[A]s few as 40 class members should raise a presumption that joinder is
impracticable and the plaintiff whose class is that large or larger should meet the test of Rule
23(a)(1) on that fact alone.").

4

In the Parties' Memorandum, Defendants represent that there are at least 50 persons who
reeeived letters in the same or substantially similar form as the letters Plaintiff received from
May 15, 20 Il and May 14, 2012. See Mem. in Support of Mot. for Class Cert., at 3-5 (ECF No.
32-8). This demonstrates an adequate number of plaintiffs in the putative c1ass. "[A] plaintiff
need not show a precise number of members in the c1ass." Evans v. V.S. Pipe & Foundry Co.,
696 F.2d 925, 930 (11th Cir. 1983). Moreover, joinder of at least 50 plaintiffs is impracticable.
Accordingly, Plaintiffhas demonstrated that the Putative Class is sufficiently numerous.
2. Commonality
Commonality demands that there be "questions of law or fact common to the c1ass."
FED. R. Ov. P. 23(a)(2). This is a "relatively light burden" that "'does not require that all the
questions of lawand fact raised by the dispute be common' ... or that the common questions of
law or faet 'predominate' over individualized issues." Vega, 564 F.3d at 1268 (quoting Cox, 784
F.2d at 1557». Rather, "at least one issue affeeting all or a signifieant number ofproposed c1ass
members" is suffieient. Fabrieant v. Sears Roebuck, 202 F.R.D. 310, 313 (S.D. FIa. 2001).
Allegations of a common course of conduct by a defendant affecting all c1ass members will
satisfy the commonality requirement.

In re Terazosin HydroehIoride Antitrust Litig., 220

F.R.D. 672, 685-86 (S.D. FIa. 2004); Fabricant, 202 F.RD. at 313; see also NEWBERG, § 3.10 at
277-78.
A common issue of law exists here.

The crux of this case is whether Defendants'

letters-which allegedly "misstate[] the applicable legal standard with regard to the need of
Plaintiff to dispute the validity of the debt in writing"-violated § 1692g of the FDCPA. Am.
Compl.,

~

33. The c1ass is limited to those persons who received a letter in the same form as
5

Plaintiff. Whether Plaintiff or other elass members were actually misled by Defendants' letters
has no bearing on Defendants' potential liability under the FDCPAl Therefore, it is likely that
these issues can be resolved without individualized factual or legal inquiries, and this Court finds
that Plaintiff satisfies the commonality requirement.
3. Typicality
Rule 23(a)(3) requires "the claims or defenses of the representative parties [to be] typical
of the elaims or defenses of the elass." FED. R. CIV. P. 23(a)(3). "A elas s representative must
possess the same interest and suffer the same injury as the elass members in order to be
typical .... [T]ypicality measures whether a sufficient nexus exists between the elaims of the
named representatives and those of the elass at large." Vega, 564 F.3d at 1275 (citations and
quotation marks ornitted).

Commonality and typicality are related, but "[t]raditionally,

commonality refers to the group characteristics of the c1ass as a whole, while typicality refers to
the individual characteristics of the named plaintiff in relation to the dass." Id. (citations and
quotation marks omitted). Like commonality, typicality is not a demanding test. See In re
Disposable Contact Lens Antitrust Litig., 170 F.R.D. 524, 532 (M.D. FIa. 1996).
The named Plaintiffs c1aim is typical of those of the rest of the putative dass. Plaintiff
received the same letter as other members of the putative elass, and Plaintiff seeks reliefbased
upon the same legal theory as the rest of the putative dass. See Komberg v. Camiva! Cruise
Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984) (holding that typicality is established where
"the elaims or defenses of the elass and the dass representative arise from the same event or
I Whether Plaintiff or any other c1ass members were misled by Defendants' mailings is not an
element of Plaintiffs cause of action. The relevant inquiry concems whether the "Ieast
sophisticated consumer" would be misled by Defendants' mailings. See Jeter v. Credit Bureau,
Inc., 760 F.2d 1l68, 1l74-75 (11th Cir. 1985).
6

pattem or practice and are based upon the same legal theory").

Accordingly, Plaintiff has

demonstrated that the typicality requirement is met.
4. Adequacy
Rule 23(a)(4) requires that "representative parties will fairly and adequately proteet the
interests of the cIass." FED. R. CIV. P. 23(a)(4). This requirement "encompasses two separate
inquiries: (1) whether any substantial confliets of interest exist between the representatives and
the cIass; and (2) whether the representatives will adequately prosecute the action." Busby v.
JRHBW Realty, Inc., 513 F.3d 1314, 1323 (11th Cir. 2008) (citation ornitted).
Here, the alleged conduct toward the named Plaintiff is identical to other putative c1ass
members. See Decl. of Gina Battle (ECF No. 34). Thus, no inherent conflict of interest exists.
Additionally, counsel for Plaintiff has litigated similar eolleetive actions involving eonsumer
rights.

Decl. of Leo W. Desmond,

~

7 (ECF No. 33). Aeeordingly, Plaintiff and Plaintiffs

eounsel have demonstrated that they ean adequately represent the Putative Class.
D. Rule 23(b)(3) Reguirements
1. Predominanee
"Under Rule 23(b )(3) it is not neeessary that all questions of law or faet be common, but
only that some questions are common and that they predominate over the individual questions."
Klay v. Humana, Inc., 382 F.3d 1241, 1254 (11th Cir. 2004). Issues requiring generalized proof
should predominate over the issues requiring individualized proof. Kerr v. City of W. Palm
Beach, 875 F.2d 1546, 1558 (11th Cir. 1989). In essenee, the Court must determine "whether
there are common liability issues which may be resolved efficiently on a elass-wide basis."

7

Drossin v. Nat. Action Fin. Servs., Inc., 255 F.R.D. 608, 616 (S.D. FIa. 2009) (quoting Brown v.
SCI Funeral Servs. of FIa., 212 F.R.D. 602,606 (SOO. FIa. 2003)).
Here, predominance is shown by the alleged fact that Defendants engaged in a course of
conduct that violates the FDCPA and the putative class members' statutory rights. Given that the
putative class members received the same letters from Defendants, a general determination can
be made regarding whether the FDCPA was violated. Accordingly, Plaintiff has demonstrated
that questions in common predominate over individual questions.
2. Superiority
Rule 23(b)(3) sets out four specific considerations pertinent to determining whether a
class action is superior to other forms of action:
(A) the class members' interests in individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation conceming the controversy already
begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in
the particular fomm; and
(D) the like1y difficulties in managing a class action.
FED. R. Ov. P. 23(b)(3).
Here, this Court finds that a class action is superior to other forms of action after
considering the large number of potential clairns, the comparatively small statutory damages to
which each individual putative class member would be entitled, the need for consistent litigation,
and the doubtful benefit to the unnamed class members of controlling the litigation themselves.
Additionally, the potential difficulties in managing the class are likely to be limited.
Accordingly, Plaintiffhas demonstrated that a class action is superior to other forms of action.

8

E. Conclusion

Because Plaintiff has shown that the putative class meets all of the requirements of Rule
23(a) and Rule 23(b )(3), this Court certifies the putative class pursuant to FED. R. Ov. P.
23(b)(3).
II. SETTLEMENT APPROV AL

This Court preliminarily approves in part the settlement of the instant action set forth in
the Settlement Agreement (ECF No. 32-1) as being fair, reasonable, and adequate to the Parties.
Specifically, this Court finds that: (1) based on Defendants' representations of net worth,
settlement of this eas e for a recovery to the Settlement Class of$16,018.56 constitutes an amount
equal to the maximum available statutory damages recoverable by a class under the FDCPA, and
is therefore fair and reasonable; (2) payment to the Class Representative, Gina Battle, of
$2,000.00 for damages and for her role in this litigation, is fair and reasonable; (3) a separate
payment to Class Counsel of fees and costs in the arnount of $13,000.00 is fair and reasonable
for the services provided by Class Counsel; and (4) it is fair and reasonable that Defendants shall
pay the costs of class administration directly to the Class Administrator while Class Counsel
shall be responsible for directing the Class Administrator.

This Court does not approve,

however, the Settlement Agreement to the extent it requires Class Members to timely submit
claim forms to receive their share of the Settlement Funds. A pro-rata sh are of the Settlement
Fund shall be distributed to each Class Member who does not timely opt-out of the Class.

9

IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that

1. The Parties' Joint Motion for Class Certification and Preliminary Approval of Class
Settlement (ECF No. 32) is GRANT ED IN PART. This Court GRANTS the Parties'
request for class certification. Additionally, this Court APPROVES IN PART the
Parties' Proposed Settlement Agreement.
2. Settlement Class Members: The Court hereby certifies a class pursuant to FED. R.

Ov. P. 23(a) and 23(b)(3) consisting of: (i) all persons with addresses in the United
States (ii) to whom Defendants sent a letter (iii) containing the language contained in
Exhibit A of the Amended Class Action Complaint which included the Notice in the
same form as Exhibit B of the Amended Class Action Complaint (iv) which was not
retumed undeliverable (v) incuITed for personal, family, or household purposes (vi)
from May 13, 2011 through the date of class certification.
3. CIass Representative: Gina BattIe is hereby certified as class representative.
4. Class Counsel: Leo W. Desmond, Esq. is hereby certified as class counsel pursuant
to FED. R. Ov. P. 23(g).
5. Preliminary Approval: This Court preliminarily approves in part the settlement of
this matter as set forth in the Settlement Agreement (ECF No. 32-1) as being fair,
reasonable, and adequate to the Parties.
a. To the extent that there are any funds from uncashed, expired settlement
eheeks, an amount equal to the amount of such uneashed eheeks will be paid

10

over as a ey pres award to Class Counsel to be distributed to Florida Rural
Legal Services, Inc.
b. If the Settlement Agreement is not given final approval for any reason, the
Effective Date (as defined within the Parties' Settlement Agreement) does not
occur, or the Settlement Agreement is rescinded and terminated, the Parties
shall be restored to their respective positions in the instant action as of the
approximate date prior to which the agreement-in-principle to settle the instant
action was reached. In such event, the terms and provisions of the Settlement
Agreement shall have no further force and effeet with respeet to the Parties,
shall be deemed to be without prejudice in any way to the position of the
Parties with respeet to this Action or any other action, and sh all not be used in
the instant action or in any other proceeding for any purpose, except as
provided in the Settlement Agreement or hereino
6. Settlement Hearing: A SettIement Hearing will be held on September 9, 2013, at
1:00 p.m., in Courtroom 4008, United States Federal Courthouse, 101 South U.S.
Highway 1, Ft. Pierce, Florida, at which time this Court will determine whether final
approval of the Settlement Agreement should be granted. This Court may adjourn or
continue the Settlement Hearing without further notice to the Settlement Class.
7. Form and Content of Notice:

This Court approves, as to form and content, for

distribution to potentjal members of the Settlement Class, the Notice in the form
attached as Exhibit 7 to the Parties' Joint Motion for Preliminary Approval of Class
Settlement (ECF No. 32-7) with the exception of (1) the Notice' s description of the

11

location of the Settlernent Hearing, and (2) the portions of the Notice that state that
Class Members must time ly submit claim forms to receive their share of the
Settlernent Funds, Instead, Class Members shall be provided an opt-out re quest form
that must be timely submitted in order to be excluded from the Settlernent Agreement.
A pro-rata share of the Settlernent Fund shall be distributed to each Class Member
who does not timely opt-out of the Class,
8, Mailed Notice: No later than seven (7) days after the date upon which this Court
enters this Order, Defendants must provide Class Counsel and the Settlernent
Administrator (as defined within the Parties' Settlernent Agreement) with the cIass
list in electronic format. Upon making the Notice compliant with this Order and no
later than forty-five (45) days after the date upon which this Court enters this Order,
the Settlernent Administrator shall mail the Notice (Exhibit 7 to the Parties' Joint
Motion for Preliminary Approval of Class Settlernent) by first c1ass mail to
Settlernent Class Members in accordance with Paragraph 17 of the Settlernent
Agreement. The Settlement Administrator shall file with the Court and serve upon
Class Counsel no later than five (5) business days before the Settlement Hearing an
affidavit or decIaration stating that the mailings have been completed in accordance
with the terms of this Order.
9. Best Practicable Notice: The Court finds that dissemination of the Notice in the
manner described herein constitutes the best notice practicable under the
circumstances to potential Settlement Class Members and complies fully with FED. R.

12

Ov. P. 23 and any substantive and procedural due process rights guaranteed by the
United States Constitution. No further notices to the class members are required.
10. Reguests for Exclusion: Any person may seek to be excluded from the Settlement.
Any person so exc1uded shall not be bound by the Settlement and shall not be entitled
to any of its benefits. To be timely, arequest for exc1usion must be sent to the
Settlement Administrator and be postmarked no later than forty-five (45) days before
the Settlement Hearing. To be effective, the request for exc1usion must make clear
that exc1usion is sought by submitting an opt-out request form effectuating a clear
intent to be excluded from the Settlement Class in the instant action. The request for
exclusion must also contain the excluded person's name and address, and the request
must be signed by that person or, if other than a natural person, by an authorized
representative of the person. The Settlement Administrator sh all provide copies of
any and all requests for exc1usion to Defendants' Counsel and to Class Counsel no
later than five (5) business days before the Settlement Hearing. Class Counsel shall
file and serve a list of all individuals or entities who timelyand effectively request
exclusion.
11. Objeetions: Any Class Member who objects to the Settlement shall have a right to
appear and be heard at the Settlement Hearing provided that such Person files with
the Court and delivers to Class Counsel and Defendants' Counsel a written notice of
objection no later than forty-five (45) days before the Settlement Hearing.

Any

Person who objects to the Settlement must file a written statement of reasons of no
more than ten (10) pages with the Clerk of the Court and deliver the same to Class
13

Counsel and Defendants' Counsel with the written notiee of request for exelusion.
Class Counsel and Defendants' Counsel may, but need not, respond to the objeetions,
if any, by means of a memorandum of law of no more than ten (l0) pages filed no
later than five (5) days prior to the SettIement Hearing. The manner in whieh a notice
of objeetion should be prepared, filed, and delivered shall be stated in detail in the
Notice. Only Settlement Class Members who have filed and delivered valid and
timely written notiees of objeetion will be entitled to be heard at the Settlement
Hearing, unIess this Court orders otherwise. Any Settlement Class Member who does
not make his or her objeetion in the manner provided shall be deemed to have waived
such objeetion and shall be foreclosed from making any objeetion to the faimess,
reasonableness, or adequaey of the Settlement Agreement or the award of Attomeys'
Fees to Class Counsel, unIess otherwise ordered by this Court.
12. Defendants' Denial of Liability: This Court notes that Defendants deny any liability
to Plaintiff or to the Class for any matter whatsoever. Without eoneeding any
infirmity in their defenses, and while eontinuing to deny all allegations of liability,
Defendants eonsider it desirable that the instant action be dismissed and that the
elaims against Defendants be released, on the terms set forth herein, in order to avoid
further expense, dispose of burdensome and protraeted litigation and put to rest all
elaims which have or could have been asserted against Defendants arising from the
acts, transactions, or occurrences alleged in the instant action.
13. Stay of Discoveryand Litigation: All discoveryand other proceedings in the instant
action are stayed until further order of this Court, exeept as may be necessary to
14

,

implement the Settlement Agreement or eomply with the terms of this Order or the
Settlement Agreement.
14. Iniunetion: This Court hereby bars and enjoins all Class Members, exeept those who
have timelyand effeetively requested exelusion pursuant to the manner set forth
herein, from instituting, or proseeuting any action, or proeeeding, whether dass or
individual, against Defendants for liability in any way related to elaims as diseussed
in Paragraph 13 of the Settlement Agreement, unIess and until the Settlement
Agreement is terminated.
15. Deadlines:
a. To be legally effeetive, all requests for exc1usion deseribed in Paragraph 10,
above, must be sent to the Settlement Administrator and be postmarked no
later than the Opt-Out Date, whieh is July 26,2013.
b. Class Member Objeetions, as described in Paragraph 11 above, must be
delivered to Class Counsel and Defendants' Counsel and filed with the Court,
as direeted in the Notiee, on or before July 26,2013. Objeetions not filed and
served in a timely manner shall be deemed waived.
DONE AND ORDERED in Chambers at Miami, Florida, this.J2i day of Mareh, 2013.

Lf!lli~

UNITED STATES DISTRICT JUDGE

ee:

All eounsel ofrecord

15