LAROCQUE v. TRS RECOVERY SERVICES INC et al
Filing
74
DECISION ON DEFENDANTS' MOTION TO EXPAND CLASS denying 67 Motion to Expand Class. By JUDGE D. BROCK HORNBY. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JEAN LaROCQUE, by and through
her appointed Power of Attorney,
DEIDRE SPANG, on behalf of
herself and all others similarly
situated,
PLAINTIFF
v.
TRS RECOVERY SERVICES,
INC. AND TELECHECK
SERVICES, INC.,
DEFENDANTS
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NO. 2:11-CV-91-DBH
DECISION ON DEFENDANTS’ MOTION TO EXPAND CLASS
The plaintiff Jean LaRocque sued the defendants in this court on a
variety of federal and state law claims arising from the defendants’ check
collection procedures. On July 17, 2012, I ruled that I would certify three of
her proposed four classes under Fed. R. Civ. P. 23(b)(3). Decision on Mot. for
Class Certification (ECF No. 56). The defendants now have moved to expand
the first of these classes (“Class One”) from a class of Maine residents to a
nationwide class, while preserving their objection to any class at all.
After
reviewing the memoranda submitted and after oral argument on December 10,
2012, I DENY the defendants’ motion.
ANALYSIS
The defendants’ central premise is that the Maine-limited scope of Class
One “circumvent[s] the statutory cap on damages set forth in the Fair Debt
Collection Practices Act,” 15 U.S.C. § 1692k. Defs.’ Mem. in Support of Mot. to
Expand Class (“Defs.’ Mem.”) 3 (ECF No. 66).
The FDCPA limits statutory
damages in class actions to $1,000 per named plaintiff and “such amount as
the court may allow for all other class members . . . not to exceed the lesser of
$500,000 or 1 per centum of the net worth of the debt collector . . . . 15 U.S.C.
§ 1692k(a)(2)(B). But the plaintiff’s lawyers have filed putative state-wide class
action lawsuits in four districts other than Maine, making the same federal
claim as that made in Class One for Maine residents in this court.1
The
defendants say that “allowing counsel free rein to file as many class actions as
they choose in order to continually reset the cap would have the effect of
writing the cap out of the statute.” Id. at 10.
In Mace v. Van Ru Credit Corp., 109 F.3d 338 (7th Cir. 1997), the
Seventh Circuit found nothing in § 1692k that precluded certification of a
statewide-only class or that imposed a single damages cap upon a series of
such actions.
The Seventh Circuit reached this conclusion largely by
contrasting § 1692k(a)(2)(B)(ii) with the damages cap in the related Truth in
Lending Act (“TILA”), 15 U.S.C. § 1640(a)(2)(B). The TILA caps damages “in any
class
action
or
series
of
class
actions”
(emphasis
added)―language
The plaintiffs have filed a motion before the Panel on Multidistrict Litigation to transfer and consolidate
each of these actions in this District, and the Panel has scheduled oral argument for January 31, 2013.
Hr’g Order, United States Judicial Panel on Multidistrict Litigation MDL No. 2426 (ECF No. 4).
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conspicuously absent from § 1692k(a)(2)(B)(ii). See Mace, 109 F.3d at 342-43
(declining to read the TILA provision into the FDCPA).
Mace accordingly
reversed the district court, which, like the defendants here, had reasoned that
“if the damage cap of $500,000 can be applied anew to a series of state-wide (or
otherwise limited) class actions, the damage limitation would become
meaningless.”
Id. at 344.
Three years after Mace, the Seventh Circuit
reiterated this conclusion in Sanders v. Jackson, 209 F.3d 998, 1002 (7th Cir.
2000), stating that “there is no provision that limits defendants being exposed
to more than one FDCPA class action lawsuit, which is exactly what happened
to the defendant in this case.” A number of district courts have followed Mace
and certified statewide classes against similar objections by defendants. See,
e.g., Lewis v. ARS Nat’l Servs., Inc., 2011 WL 3903092, at *5-7 (M.D. Ala.
Sept. 6, 2011); Hubbard v. M.R.S. Assocs., Inc., 2008 WL 5384294, at *3-4
(S.D. Ind. Dec. 19, 2008); Nichols v. Northland Groups, Inc., 2006 WL 897867,
at *8-11 (N.D. Ill. Mar. 31, 2006); Mailloux v. Arrow Fin’l Servs. LLC, 204
F.R.D. 38, 43 (E.D.N.Y. 2001) (certifying a statewide class even when another
class action based on the same collection letter had been filed in another state);
Brink v. First Credit Res., 185 F.R.D. 567, 573 (D. Ariz. 1999) (concluding “that
a nationwide class would be a disservice to the potential plaintiffs because the
group as a whole might obtain a larger total recovery by maintaining several
class actions rather than only one”); cf. Zimmerman v. Zwicker & Assocs., P.A.,
2011 WL 65912, at *4-6 (D.N.J. 2011) (rejecting as unfair a proposed
settlement between the defendant and a nationwide class of plaintiffs when it
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remained possible that the plaintiffs could have recovered more in a series of
state-by-state class actions). In fact, there are no cases to the contrary.2
It is true that Mace recognized that “the case before us does not now
present multiple or serial class actions to recover for the same misconduct . . .
If and when multiple serial class actions are presented, it will be time enough
to rule on such a pattern.” 109 F.3d at 344. According to the defendants,
“[t]his case presents the situation that the Seventh Circuit in Mace envisioned
but did not address: the filing of multiple FDCPA class actions asserting
identical claims.” Defs.’ Mem. at 8. In the wake of Mace, however, courts have
allowed multiplicative class actions with both chronologically distinct classes,
see, e.g., Nichols, 2006 WL 897867 (two classes of plaintiffs in the same state
who received the same letter at different periods), and geographically distinct
classes, see, e.g., Mailloux, 204 F.R.D. at 38 (two identical classes of plaintiffs
in different states). The defendants have found no cases holding that
§ 1692k(a)(2)(B)(ii) requires certification of a nationwide class.
To the extent that the defendants request that this court certify a
nationwide class as a matter of judicial discretion, I decline to do so.3 If the
plaintiff is able to establish the defendants’ liability, my discretion will be
The defendants cite Campos v. W. Dental Servs., Inc., 404 F. Supp. 2d 1164, 1173 (N.D. Cal. 2005),
Defs.’ Mem. at 11, but Campos denied certification of a countywide class of about 250 members rather
than a statewide class. It is easy to understand why the court concluded that the plaintiff had failed to
satisfy the “superiority” requirement of Rule 23(b)(3) in making such a proposal that could produce “a
multitude of potential lawsuits.” Id. at 1172-73.
3 I observe that the defendants have declined to waive any objection to my certification of Class One. If I
now grant their motion to enlarge Class One while they continue to object to class certification, it would
certainly present a confusing issue to the court of appeals on any interlocutory appeal under Fed. R. Civ.
P. 23(f). I ruled that the plaintiff satisfied the Rule 23 requirements as to her proposed Class One. The
defendants are not proposing that their broadened Class One meets the Rule 23 standard.
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invoked at the time of determining statutory damages.4 Then, the defendants
can point to the size of the class and the pendency of lawsuits in other
jurisdictions (assuming that the MDL Panel has not placed them all before a
single judge).
Nothing in the statute requires that a court set statutory
damages at the maximum allowed.
ORDER
The defendants’ motion to expand Class One is hereby DENIED. In light
of the motion pending before the Panel on Multidistrict Litigation to transfer
four additional cases from other jurisdictions to this District, I will defer
entering a certification order or providing for notice to class members until the
Panel issues its decision on whether to transfer and, if so, to which district.
SO ORDERED.
DATED THIS 2ND DAY OF JANUARY, 2013
/s/D. Brock Hornby
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
Section 1692k(b)(2) provides that in determining the amount of damages in a § 1692k(a)(2)(B)(ii) class
action, the court shall consider, among other relevant factors, “the frequency and persistence of
noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt
collector, the number of persons adversely affected, and the extent to which the debt collector’s
noncompliance was intentional” (emphasis added).
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