JONES v. ADVANCE BUREAU OF COLLECTIONS LLP et al
Filing
75
ORDER GRANTING 52 Motion to Certify Class. Within 21 days from the date of this Order, the parties shall file a joint proposal for providing notice to class members. The notice shall comply with the requirem ents of Rule 23(c)(2)(B). In the event the parties are unable to reach a consensus for providing class members or potential class members with notice, the parties shall submit a single document outlining the areas in which they agree and those in which they do not agree. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/26/2016. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RANDOLPH JONES, JR,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
ADVANCED BUREAU OF
COLLECTIONS LLP, et al.,
Defendants.
CIVIL ACTION NO. 5:15-CV-16(MTT)
ORDER
Plaintiff Randolph Jones, Jr. filed this putative class action on behalf of himself
and other similarly situated class members. Jones has moved to certify the class.
(Doc. 52). The motion is GRANTED.
I.
BACKGROUND
Jones seeks certification under Fed. R. Civ. P. 23(b)(3) of his Fair Debt
Collection Practices Act (“FDCPA”) claim against Defendants Advanced Bureau of
Collections LLP (“Advanced Bureau”), Kenneth M. French, Evelyn L. Trimble, David R.
Aldrich, Lee Ann Barrett, Mia H. Ferruzo-O’Brien, and Tammy Patat. (Docs. 52; 52-1 at
2).
Advanced Bureau, a debt collector acting on behalf of Jones’s medical provider,
mailed Jones a collection letter—the “A Notice”—which Jones received on February 11,
2014. (Docs. 1 ¶¶ 38, 40-41; 1-1 at 2; 53-3 at 42:9-43:5). This letter stated:
Unless you notify this office within 30 days after receiving this notice that
you dispute the validity of this debt or any portion thereof, this office will
assume this debt is valid. If you notify this office within 30 days from
receiving this notice, this office will obtain verification of the debt or obtain
a copy of a judgement and mail you a copy of such judgement or
verification. If you request this office within 30 days after receiving this
notice, this office will provide you with the name and address of the
original creditor if different from the current creditor.
(Id.). Jones alleges that “French, Trimble, Aldrich, Barnett, Ferruzo-O’Brien, and Patat
personally designed, implemented, directed, and supervised [Advanced Bureau’s]
collection practices and policies including the text of and the procedure for use of the
Feb. 11th Letter.” (Doc. 1 ¶ 51).
Jones contends that the A Notice violated the FDCPA because it “failed to inform
[him] that in order to obtain verification of the alleged debt and/or the identity of the
original creditor[,] the request must be ‘in writing’” in violation of 15 U.S.C. § 1692e(10)
and § 1692g(a)(4)-(5). (Docs. 1 ¶ 50; 52-1 at 2). The Defendants disclosed during
discovery the names and addresses of 14,989 debtors who received the A Notice
between January 23, 2014 and January 22, 2015—the twelve month period before this
lawsuit was filed. (Doc. 54-1 ¶ 5). After Jones’s counsel reviewed the list for duplicates
and non-persons, the final list consisted of over 11,500 names. (Docs. 51-1-51-11; 54-1
¶ 9). Jones now proposes the following class definition in his motion to certify the class:
All persons, within twelve months prior to the date of filing of this action
until the date of this Court’s Order certifying this class, resided in Georgia
and received (1) a form collection letter similar to Plaintiff’s collection letter
dated February 11, 2014 [Doc. 1-1]; and (2) those persons whose
collection letters were sent but were not returned by the postal service as
undelivered or undeliverable.
(Doc. 52-1 at 1).1
1
The Court notes that Jones proposed a different class definition in his complaint. (Doc. 1 ¶ 53).
Because of information learned in discovery, Jones has modified the proposed class definition in his
motion to certify. The Defendants do not object to this change. Accordingly, the Court limits its analysis
to the proposed class definition in Jones’s motion.
-2-
II.
A.
DISCUSSION
Class Certification Standard
Fed. R. Civ. P. 23 governs the certification and management of class actions in
federal courts. To maintain a class action, Rule 23(a) requires the putative class to
satisfy four prerequisites, and the class action may proceed only if it is one of the three
types identified in Rule 23(b). Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th
Cir. 2009) (citation omitted). A plaintiff must also establish the implied requirement of
Rule 23 that “the proposed class [be] ‘adequately defined and clearly ascertainable.’”
Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012) (citation omitted). The
burden of establishing the propriety of class certification lies with the moving party.
Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322 (11th Cir. 2008) (citing Valley Drug
Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003)). The moving party
“must affirmatively demonstrate his compliance with the Rule—that is, he must be
prepared to prove that there are in fact sufficiently numerous parties, common questions
of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
The Court must conduct a “rigorous analysis” to ensure Rule 23’s prerequisites
are satisfied prior to certifying a class. Vega, 564 F.3d at 1266 (citations omitted).
“Although the trial court should not determine the merits of the plaintiffs’ claim at the
class certification stage, the trial court can and should consider the merits of the case to
the degree necessary to determine whether the requirements of Rule 23 will be
satisfied.” Id. (internal quotation marks and citations omitted); see also Amgen Inc. v.
Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013).
Specifically, Rule 23(a) requires a plaintiff to show:
-3-
(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 and
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). “These four prerequisites of Rule 23(a) are commonly referred to
as ‘numerosity, commonality, typicality, and adequacy of representation, and they are
designed to limit class claims to those fairly encompassed by the named plaintiffs’
individual claims.’” Valley Drug, 350 F.3d at 1188 (quoting Prado-Steiman v. Bush, 221
F.3d 1266, 1278 (11th Cir. 2000)).
Jones is pursuing certification under Rule 23(b)(3), which permits class
certification if “the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently adjudicating
the controversy.” Fed. R. Civ. P. 23(b)(3).
B.
Analysis
The Defendants oppose class certification on the grounds that the class is not
ascertainable; that numerosity, commonality, typicality, and predominance are not
satisfied for the same reasons the class is not ascertainable; that Jones and his counsel
are inadequate to represent the class; and that a class action is not the superior method
of adjudication.2
2
Although no party raises the issue of standing, Article III standing is a threshold question in any class
action lawsuit; thus, “any analysis of class certification must begin with the issue of standing.” See Griffin
v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987); Prado–Steiman, 221 F.3d at 1279-80. To establish
Article III standing, Jones must satisfy three requirements: (1) “injury-in-fact”; (2) “a causal connection
between the asserted injury-in-fact and the challenged action of the defendant”; and (3) “that the injury
will be redressed by a favorable decision.” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (internal
quotation marks omitted) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The
Eleventh Circuit has very recently addressed the issue of standing in a FDCPA class action concerning a
-4-
1. Ascertainability
“[A] class is not ascertainable unless the class definition contains objective
criteria that allow for class members to be identified in an administratively feasible way.”
Karhu v. Vital Pharm., Inc., 621 F. App’x 945, 946 (11th Cir. 2015). “Identifying class
members is administratively feasible when it is a ‘manageable process that does not
require much, if any, individual inquiry.’” Id. (quoting Bussey v. Macon Cty. Greyhound
Park, Inc., 562 F. App’x 782, 787 (11th Cir. 2014)). Moreover, “[a] plaintiff cannot
establish ascertainability simply by asserting that class members can be identified using
the defendant’s records; the plaintiff must also establish that the records are in fact
useful for identification purposes, and that identification will be administratively feasible.”
Id. at 948.
The Defendants argue ascertainability cannot be established because “there is
no evidence of the content of the letters” and “an individual review is required to
determine if any mail was returned.” (Doc. 58 at 4-6). Specifically, the Defendants
contend that “all that has been established is that [Advanced Bureau] has a record of
sending out A Notices[;] it does not know if the words ‘in writing’ were omitted in all
letters. … [Jones] merely assumes all A Notices during a certain period were the
debt collection letter. Mahala A. Church v. Accretive Health, Inc., __F.3d__, 2016 WL 3611543 (11th Cir.
2016). As explained in Mahala, “[a]n injury-in-fact, as required by Article III, may exist solely by virtue of
statutes creating legal rights, the invasion of which creates standing.” Id. at *3 (internal quotation marks,
citations, and ellipses omitted). The Eleventh Circuit concluded that the debtor-plaintiff had “alleged injury
to her statutorily-created right to information pursuant to the FDCPA,” and specifically a concrete or “real”
injury, “because she did not receive the allegedly required disclosures.” Id. The Court reasoned that “this
injury is one that Congress has elevated to the status of a legally cognizable injury through the FDCPA,”
and the Plaintiff’s allegation of a concrete injury “satisfie[d] the injury-in-fact requirement.” Id. (footnotes
omitted). Likewise, Jones has sufficiently alleged a concrete injury to satisfy the injury-in-fact requirement
by alleging his debt collection letter failed to include the words “in writing,” as allegedly required by the
FDCPA. Further, it is clear that there is “a causal connection between the asserted injury-in-fact and the
challenged action of the [D]efendant[s]” and that “the injury will be redressed by a favorable decision.”
Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013) (internal quotation marks
and citations omitted). Accordingly, Jones has satisfied the requirements of Article III standing.
-5-
same.” (Doc. 58 at 4-5). This is because, according to the Defendants, the last time
the A Notices were reviewed by an attorney in 2007, “in writing” was included, but the
Defendants claim they do not know when or how those words were removed. (Doc. 58
at 2-3). Jones counters that the evidence establishes that all A Notices sent from
January 23, 2014 through February 10, 2015 omitted the words “in writing.” (Doc. 67 at
4-6).
The Defendants’ argument is belied by the testimony of Defendant Kenneth
French, Advanced Bureau’s manager, and Defendant Evelyn Trimble, a senior partner
at Advanced Bureau. (Docs. 63 at 9:7-8; 65 at 7:4, 16-17). Trimble testified that the A
Notice “is a form notice” and that “[e]very account that comes to [Advanced Bureau]
receives that notice. We have no reason to think that a form notice will be changed
without the authorization of anyone in the office.” (Doc. 65 at 40:3-8). Clearly, then, the
form language of all A Notices is the same until the form is changed. French testified
that “[n]o one can make any change to any of our letters to our knowledge without the
attorney reviewing them first and then instructions from our software people to enable
them to go into the Crystal Report and make the change.” (Doc. 63 at 31:7-10, 35:616). French and Trimble also review the letter before the “software people” make a
change. (Docs. 53-2 at 63 at 29:24-30:7, 35:10-11). French testified that the last time
the “A Notice” was reviewed by counsel was in 2007 or 2008, and this review showed
the A Notice was “in compliance.” (Docs. 53-2 at 22:18-24, 27:17-27:2; 63 at 31:21-22).
The A Notice was not reviewed again until the service of this action. (Doc. 63 at 31:2122, 32:3-4). Nevertheless, French and Trimble acknowledged that at some point, “in
writing” was deleted from the A Notice, though they claim no one knows how or when it
-6-
happened. (Docs. 53-5 at 9:16-10:4; 63 at 28:18-29:1, 31:23-32:1, 34:13-14; 65 at
38:24-39:23). They also testified that “in writing” was returned to the A Notice the day
the Defendants were served with the lawsuit—February 10, 2015. (Docs. 53-5 at 9:1610:4; 63 at 31:23-32:1; 65 at 39:19-23). Accordingly, given the Defendants’ elaborate
procedures and the fact that the A Notice was not reviewed pursuant to procedure and
changed to add the words “in writing” until they were served, the Defendants cannot
deny that, at the very least, all A Notices sent between February 11, 2014—the date
Jones received his defective A Notice—and February 10, 2015—the date the
Defendants were served and changed the A Notice—omitted the words “in writing.”
However, the Defendants argue, based on a single letter mailed in October 2013
that included the words “in writing,” that the A Notices sent within the 19 day period
between January 23, 2014 and the date Jones received his letter could have possibly
included the words “in writing.” (Docs. 58 at 2-5; 58-6 at 2). But they claim they have
no evidence showing whether the A Notice was changed during this time, and that
evidence is exclusively within the Defendants’ control. Therefore, Defendants’
argument is unpersuasive. Accordingly, given the testimony regarding the Defendants’
procedures and the fact that the A Notice was not reviewed and changed until they were
served with the lawsuit, Jones has sufficiently shown that those individuals who
received the A Notice between January 23, 2014 and February 10, 2015 received the
same defective A notice.
Further, the names and addresses of the members in the proposed class are
easily ascertainable through an administratively feasible procedure that is useful for
identification purposes. The CEO of the company that Advanced Bureau uses to create
-7-
their reports, CollectionWorks, testified that it can generate a report of names and
addresses for any time period. (Doc. 60 at 17:2-18:7, 22:13-14, 37:12-13). Indeed, that
is how Advanced Bureau was able to provide a 235 page report of names and
addresses of debtors who received the A Notice. (Docs. 53-1 at 9:11-22, 12:12-20,
23:2-9; 60 at 17:2-18:7, 30:16-24, 34:11-14).
Accordingly, because Jones has sufficiently demonstrated that the members of
his class may be identified in an administratively feasible manner without much, if any,
individualized inquiry, Jones has established ascertainability.3
2. Numerosity, Commonality, Typicality, and Predominance
The Defendants argue that Jones has not established numerosity, commonality,
typicality, and predominance because “Jones’[s] argument for [these elements] is based
on the same assumption with respect to ascertainability that all letters were the same.”
(Doc. 58 at 4 n.27). As discussed, Jones has established ascertainability. Further, a
class with over 11,500 members is clearly sufficient to satisfy the numerosity
requirement. Commonality is also satisfied here because it is sufficiently evident from
3
The Defendants also argue that the class cannot be identified in an administratively feasible manner
because “an individual review is required to determine if any mail was returned.” (Doc. 58 at 5-6). The
Court also finds this argument unpersuasive. To the extent an individual inquiry is required, it will solely
be to ascertain whether a letter has been returned. This is not the type of individualized inquiry that
amounts to a “series of mini-trials,” and the Court does not see any evidence how this would be an
unmanageable process. Karhu, 621 F. App’x at 949 (citation omitted). Indeed, in her Rule 30(b)(6)
deposition, Tammy Patat, who compiled the data of individuals who received A Notices from Advanced
Bureau, testified that she was “personally” not aware of any individuals whose A Notices were returned
and that, generally speaking, only a small percentage of letters that Advanced Bureau sends are
returned. (Doc. 53-4 at 11:18-20, 14:8-10, 15:19-23). The Court also adds that numerous courts in
FDCPA actions have certified classes that were defined by individuals who received an allegedly
defective letter that was not returned as undeliverable. See, e.g., Roundtree v. Bush Ross, P.A., 304
F.R.D. 644, 645 (M.D. Fla. 2015); Butto v. Collecto Inc., 290 F.R.D. 372, 397 (E.D.N.Y. 2013); Lewis v.
ARS Nat’l Servs., Inc., 2011 WL 3903092, at *8 (M.D. Ala.); del Campo v. Am. Corrective Counseling
Servs., 254 F.R.D. 585, 597 (N.D. Cal. 2008); Seawell v. Universal Fid. Corp., 235 F.R.D. 64, 68 (E.D.
Penn. 2006); Connor v. Automated Accounts, Inc., 202 F.R.D. 265, 272 (E.D. Wash. 2001); Fuller v.
Becker & Poliakoff, P.A., 197 F.R.D. 697, 698, 701 (M.D. Fla. 2000); Wilborn v. Dun & Bradstreet Corp.,
180 F.R.D. 347, 359 (N.D. Ill. 1998).
-8-
Defendants’ description of their procedures and letter-generating system, as well as
Trimble’s testimony discussed above, that all class members received the same
defective A Notice. See Swanson v. Mid. Am., Inc., 186 F.R.D. 665, 668 (M.D. Fla.
1999) (“To establish commonality, it is sufficient that Plaintiff allege that all class
members received the same collection letter.”). Likewise, typicality is satisfied because
Jones received the same A Notice that allegedly violated the FDCPA as the class
members; thus, Jones’s claims and those of the class “arise from the same event or
pattern or practice and are based on the same legal theory.” Kornberg v. Carnival
Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984); Swanson, 186 F.R.D. at 668.
Finally, the Court finds that common issues predominate over any “issues that
are subject to individualized proof.” Jackson v. Motel G Multipurpose, Inc., 130 F.3d
999, 1005 (11th Cir. 1997) (internal quotation marks and citation omitted). Again,
Jones’s claims, and those of the putative class, are based on the same alleged defect in
the same A Notice, which Jones argues violates § 1692e(10) and § 1692g(a)(4)-(5).
Further, the Eleventh Circuit assesses FDCPA claims pursuant to the “least
sophisticated consumer” standard, which is an objective standard. LeBlanc v. Unifund
CCR Partners, 601 F.3d 1185, 1194 (11th Cir. 2010). Therefore, there is little to no
individualized inquiry. In other words, “[d]etermining whether Defendants are liable is
subject to generalized proof and will not be overshadowed by individualized
determinations.” Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674,
689 (S.D. Fla. 2013).
Accordingly, Jones has sufficiently established numerosity, commonality,
typicality, and predominance.
-9-
3. Adequacy of Representation
The Defendants argue that Jones is an inadequate class representative and that
counsel James W. Hurt, Jr., Steven H. Koval, and David Addleton are inadequate to
represent the class. (Doc. 58 at 6-16). Under the final Rule 23(a) requirement, the
class representatives must show they “will fairly and adequately protect the interests of
the class.” Fed. R. Civ. P. 23(a)(4). This requirement applies to both the named
plaintiff and his counsel. London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1253 (11th
Cir. 2003). The adequacy prerequisite “encompasses two separate inquiries: (1)
whether any substantial conflicts of interest exist between the representatives and the
class; and (2) whether the representatives will adequately prosecute the action.” Busby,
513 F.3d at 1323 (quoting Valley Drug, 350 F.3d at 1189).
a. Whether Jones is an adequate class representative
The Defendants argue that Jones is inadequate to represent the class because
(1) he “knows nothing about his case, damages, costs, fees, his attorney’s[,] or the
proposed class”; and (2) Jones’s “interests are in conflict with the class.” (Doc. 58 at 612). With respect to a class representative’s knowledge, the Eleventh Circuit has stated
that district courts may properly deny class certification “where the class representatives
had so little knowledge of and involvement in the class action that they would be unable
or unwilling to protect the interests of the class against the possibly competing interests
of the attorneys.” Kilpatrick v. J.C. Bradford & Co., 827 F.2d 718, 727 (11th Cir. 1987).
However, “class certification should not be denied simply because of a perceived lack of
subjective interest on the part of the named plaintiffs unless their participation is so
minimal that they virtually have abdicated to their attorneys the conduct of the case.” Id.
- 10 -
at 728. Further, “[b]ecause the issue of adequate class representation arises in a wide
variety of contexts, it would be inappropriate … to establish a standard for general
application.” Id. at 727-28.
Here, the evidence does not show that Jones’s knowledge of this lawsuit is
inadequate or that he has abdicated his role as class representative to his counsel.
Rather, Jones’s deposition testimony reveals that he is familiar with the substance of his
claims and the allegations in his complaint directly relevant to his claims, has reviewed
the entirety of the FDCPA, reviewed the complaint before it was filed and documents
sent during class certification discovery, and remains informed about the case through
frequent contact with counsel David Addleton. (Doc. 53-3 at 12:6-11, 14:12-13, 15:1721, 16:3-8, 22:22-23:1, 24:13-22, 25:8-26:23, 28:24-29:8, 40:2-13).
The Defendants attempt to make much of the fact that Jones stated his
knowledge about the class allegations in his complaint came from his counsel and not
his “personal knowledge”; that he did not assist his counsel in responding to certain
discovery; that he did not know what resources class counsel were devoting to the
litigation, counsels’ experience, or the compensation the class members could receive;
and that he did not know the individual Defendants who worked for Advanced Bureau.
(Docs. 53-3 at 12:6-9, 12:19-13:11, 28:10-23, 19:22-25, 20:1-2, 21:5-10, 22:3-10, 26:625-28:20, 29:9-11, 31:11-12, 33:6-17, 45:1-25, 46:6-14, 47:18-21, 48:1-25, 49:1-50:3,
51:13-15; 58 at 6-12). However, the Defendants have not provided the Court with any
binding precedent, and the Court is unaware of any, that a class representative is
inadequate if his knowledge about the legal nature of his claims and the class comes
from his counsel. Further, Jones’s inability to assist his counsel with answering largely
- 11 -
legal discovery requests, his lack of awareness of Advanced Bureau’s corporate officers
in this lawsuit, or his lack of understanding of his counsels’ resources or the class
members’ potential compensation does not demonstrate he cannot discharge his duties
as class representative.
The Court emphasizes that the subject of this lawsuit is a fairly simple one—the
absence of two words in a debt collection letter, and, again, that the objective standard
through which courts assess FDCPA violations is an exceedingly light one—the least
sophisticated consumer standard. Thus, the threshold of the necessary knowledge for
a class representative is not high. Again, Jones’s deposition testimony demonstrates
that he understands the nature of this lawsuit and the statutory rights of the class
members he seeks to vindicate and that he is involved in this lawsuit by staying
frequently informed through regular communication with Addleton. This is sufficient.
The Defendants also argue that Jones’s interests conflict with the class because
his counsel are funding the litigation. Again, the inquiry is “whether any substantial
conflicts of interest exist between the representatives and the class.” Busby, 513 F.3d
at 1323 (emphasis added). The only authority the Defendants cite is Sandlin v. Shapiro
& Fishman in which the district court thinly reasoned that “Plaintiffs’ reliance on counsel
for … funding leaves great potential for conflict of interest.” 168 F.R.D. 662, 668 (M.D.
Fla. 1996). Notably, the court in Sandlin made this conclusion in conjunction with
finding that the plaintiffs were unable to adequately protect the class’s interests because
of “counsel’s past record of behavior involving class action litigation.” Id. With regard to
the latter finding, there is no evidence or suggestion of misbehavior by counsel here.
Further, the Court fails to see how attorney funding of this litigation, a common and
- 12 -
appropriate practice, has manifested or could manifest a substantial conflict of interest
here between Jones and the class. The Court finds no evidence of any substantial
conflict.
Accordingly, Jones has demonstrated he is adequate to serve as class
representative.
b. Whether counsel are adequate to represent the class
The Defendants argue Jones’s counsel are inadequate to represent the class
because they “refuse to provide discovery/evidence required by Rule 23” and are “at
conflict with the class.” (Doc. 58 at 12-16).
With respect to the evidence required by Rule 23, the Defendants argue that
counsel is inadequate because “Jones and his counsel refuse to provide any evidence
supporting a factor that this court must consider”—namely, the resources that counsel
will commit to representing the class. (Id. at 13). In response to the Defendants’
interrogatory asking Jones to “describe with particularity” the resources his counsel will
commit to representing the class, the resources already committed to identifying and
investigating the claims, and the resources available to counsel, his counsel stated that
such information is privileged and that “they have adequate resources to bear the cost
of any class notification, depositions, and to see the case through to trial.” (Docs. 61 at
5-6; 62 at 9-10). The Defendants did not move to compel further response.
Although Jones’s interrogatory response was bare, there is still sufficient
evidence for the Court to assess the resources that counsel can commit. As an initial
matter, counsel represent that they have sufficient resources to bear the costs of this
class action and that the four attorneys and their staff have “dedicate[d] their utmost
- 13 -
efforts to this case.” (Doc. 62 at 10). See Smith v. State Farm Mut. Auto. Ins. Co., 301
F.R.D. 284, 289-90 (N.D. Ill. 2014) (finding counsel was adequate under Rule 23(g)(1)
and (g)(4) where counsel’s fifteen attorneys, fifteen paralegals, and staff were working
on the class action concerning the Telephone Consumer Protection Act and where they
represented they would “devote sufficient manpower and financial resources to
vigorously pursue [the] putative class action”). Clearly, counsel are familiar with the
resources required to represent a class in a FDCPA action given that they collectively
have been class counsel in sixteen class actions, four of which involved the FDCPA and
all of which involved debt. (Docs. 52-3 ¶ 9; 52-4 ¶ 3; 54-1 ¶ 3). The Court concludes
that it is apparent from counsels’ ability to manage similar suits in the past that they
have the expertise and adequate resources to manage this lawsuit as well. See In re
Cardinal Health, Inc. ERISA Litig., 225 F.R.D. 552, 556 (S.D. Ohio 2005) (reasoning the
same). Indeed, as discussed, it does not appear that this case is so complex that it will
require the devotion of resources beyond what counsel are apparently capable of
providing.
With respect to a purported conflict between counsel and the class, the
Defendants cite Sandlin again and repeat essentially the same argument they made
against Jones as class representative. (Doc. 58 at 15-16). Again, the Court concludes
there is no evidence that attorney funding has or will create a conflict of interest with the
class, and there is no evidence of any other substantial conflict.4
4
The Defendants also argue that counsel are inadequate because they are “improperly using discovery in
this case to obtain information for other cases.” (Doc. 58 at 14). Apparently, during French’s deposition,
Koval questioned him at length concerning issues unrelated to this case that were the later subject of a
class action counterclaim and third-party complaint filed by Koval, Hurt, and Addleton 30 days after
French’s deposition. (Id.; Docs. 58-1; 58-2). Jones responds that Koval’s questions were relevant for
pattern and practice evidence under 15 U.S.C. § 1692k(b) and represents that “the class action
allegations have been dropped” in the other lawsuit. (Doc. 67 at 10, 11 n.5). Although it does appear that
- 14 -
Finally, the Court finds that counsel have done sufficient work in investigating the
potential claims in this action and have sufficient knowledge of the applicable law. See
Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv). Accordingly, Jones has established that his counsel
will adequately represent the class.
5. Superiority
The following factors are useful for determining whether a class action is a
superior method:
(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.
Fed. R. Civ. P. 23(b)(3). “The focus of this analysis is on ‘the relative advantages of a
class action suit over whatever other forms of litigation might be realistically available to
the plaintiffs.’” Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs.,
Inc., 601 F.3d 1159, 1183-84 (11th Cir. 2010) (citation omitted). The predominance
analysis has a significant impact on the superiority analysis; if common issues
predominate over individual issues, then a class action is likely to be a superior vehicle
for adjudicating Jones’s claims. Id. at 1184 (citations omitted).
As discussed, common issues predominate in this case; thus, a class action is
likely the superior vehicle for adjudicating Jones’s claims. Further, Jones’s FDCPA
claims raise a single central question, and “[s]eparate actions by each of the class
members would be repetitive, wasteful, and an extraordinary burden on the courts.”
Koval was conducting discovery on another case in this action, the Court does not see this as an
impediment to counsels’ adequate representation of this class. This is especially true now that the
counterclaim and third-party complaint in the other lawsuit have since been dismissed. (Doc. 58-3).
- 15 -
Kennedy v. Tallant, 710 F.2d 711, 718 (11th Cir. 1983); see also Gen. Tel. Co. of the
Sw. v. Falcon, 457 U.S. 147, 155 (1982). Therefore, these common questions should
be resolved in a single forum. Also, the Court is unaware of ongoing litigation against
the Defendants by debtors that comprise the proposed class or of any likely difficulties
in managing the class.
The Defendants only argue that “a class action is not superior” because: 1)
recovery would be de minimis; and 2) recovery would be disproportionate to other costs.
(Doc. 58 at 16). With respect to de minimis recovery, Jones does not dispute that
recovery for each class member would be between $.08 and $.20, instead of $1,000 in
statutory damages plus actual damages and attorney’s fees if the class members
pursued their claims individually. See 15 U.S.C. § 1692k(a); Hicks v. Client Servs., Inc.,
257 F.R.D. 699, 700 (S.D. Fla. 2009). The Defendants have cited several cases in
which courts have held or discussed that de minimis recovery precluded class
certification, but Jones has cited numerous cases in which courts have held de minimis
recovery does not defeat class certification. (Docs. 58 at 16-19; 67 at 12-14).
While there is authority supporting both positions, the Court finds more
persuasive the authority concluding that de minimis recovery does not preclude class
certification. As noted by various courts and acknowledged by the Defendants, de
minimis recovery is only a factor to be considered in determining whether to certify a
class. See, e.g., Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997). But
this factor does not overwhelm Congress’s intentions for class actions to be a
mechanism for recovery to “overcome the problem that small recoveries do not provide
the incentive for any individual to bring a solo action. … A class action solves this
- 16 -
problem by aggregating the relatively paltry potential recoveries into something worth
someone’s (usually an attorney’s) labor.” AmChem Prods., Inc. v. Windsor, 521 U.S.
591, 617 (1997) (internal quotation marks and citation omitted). This is especially so in
a case such as this where the statutory limit for individual recovery is $1,000 (plus any
actual damages), and where it is unlikely that individuals who received the defective A
Notice would be aware that the absence of two words violated their rights under the
FDCPA without a class action. Thus, the Court concludes that the potential de minimis
recovery here does not render a class action an inferior method for adjudication.
The Defendants also argue that a class action is not the superior method
because the potential amount of recovery is disproportionate to the cost of providing
notice and payment to the class. (Doc. 58 at 19-20). Specifically, they argue that while
each class member will recover between $.08 and $.20 if it prevails, “the cost of
providing notice and payment to each member would be between $3.28 and $3.86.”
(Id.). However, the Court fails to see how this disproportionate cost demonstrates that a
class action is not the superior method of adjudication in this case. Indeed, such a
conclusion would, in effect, preclude many class actions where recovery would be de
minimis. Again, the Court rejects such a position for the reasons already discussed.
Accordingly, the Court finds that “a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
III.
CONCLUSION
For the foregoing reasons, Jones’s motion to certify the class is GRANTED.
(Doc. 52). It is ORDERED:
1. The named Plaintiff Randolph Jones, Jr., is designated as class
- 17 -
representative of a Rule 23(b)(3) class defined as follows:
All persons, within twelve months prior to the date of filing of this action
until the date of this Court’s Order certifying this class, resided in
Georgia and received (1) a form collection letter similar to Plaintiff’s
collection letter dated February 11, 2014 [Doc. 1-1]; and (2) those
persons whose collection letters were sent but were not returned by
the postal service as undelivered or undeliverable.
2. The class is certified with respect to the following cause of action:
An FDCPA claim against the Defendants based on their failure to inform the
consumer in their A Notice that in order to obtain validation of the alleged debt
and/or the name and address of the original creditor, the request must be “in
writing” in violation of 15 U.S.C. § 1692e(10) and § 1692g(a)(4)-(5).
3. Pursuant to Rule 23(g), James W. Hurt, Jr., Steven H. Koval, and David F.
Addleton are appointed as class counsel.
Within 21 days from the date of this Order, the parties shall file a joint proposal
for providing notice to class members. The notice shall comply with the requirements of
Rule 23(c)(2)(B). In the event the parties are unable to reach a consensus for providing
class members or potential class members with notice, the parties shall submit a single
document outlining the areas in which they agree and those in which they do not agree.
SO ORDERED, this the 26th day of August, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
- 18 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?