O'DELL v. NATIONAL RECOVERY AGENCY
MEMORANDUM/OPINION THAT THE COURT WILL RELUCTANTLY GRANT THE MOTION FOR CLASS CERTIFICATION. THE COURT WILL ENTER A SEPARATE ORDER. SIGNED BY HONORABLE EDWARD G. SMITH ON 5/6/18. 5/6/18 ENTERED AND COPIES E-MAILED. (ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NATIONAL RECOVERY AGENCY,
CIVIL ACTION NO. 16-5211
March 6, 2018
In this case, the plaintiff seeks to have the court certify a class of individuals who she
alleges have been subject to violations of the Fair Debt Collection Practices Act by the defendant
when it improperly aged a large number of consumer accounts in its efforts to collect debts owed
to a local hospital. This is a tenuous case involving a technical violation, and the harm is
difficult to pinpoint. Nonetheless, in a motion for class certification, it is established law that
“merits inquiry is not permissible when [the] merits issue is unrelated to a Rule 23 requirement.”
In re Cmty. Bank of N. Va., 622 F.3d 275, 294 (3d Cir. 2010) (alteration in original) (citation and
internal quotation marks omitted). Consequently, because the plaintiff has Article III standing
and the requirements of Federal Rule of Civil Procedure 23 have been met, the court will
reluctantly grant the motion for class certification.
On September 30, 2016, the plaintiff, Corine O’Dell, filed a complaint alleging that the
defendant, National Recovery Agency (“NRA”), violated the Fair Debt Collection Practices Act
(“FDCPA”). Doc. No. 1. NRA filed an answer to the complaint on December 9, 2016. Doc.
No. 4. O’Dell filed an amended complaint on December 16, 2016. Doc. No. 7. NRA filed an
answer to the amended complaint on December 30, 2016. Doc. No. 9. As this matter was
originally scheduled to proceed to compulsory arbitration under this court’s local civil rules, the
court entered an order on January 17, 2017, which required the parties to complete all discovery
by the date of the arbitration hearing. Doc. No. 17. On March 29, 2017, the court granted the
parties’ joint motion to extend the discovery period and directed the clerk of court to reschedule
the arbitration hearing for on or about June 13, 2017. Doc. No. 21. At NRA’s request, the court
later entered an order on May 12, 2017, continuing the arbitration hearing for an additional
period of approximately 60 days. Doc. No. 34.
O’Dell filed a motion to amend the amended complaint on May 16, 2017, which the court
granted without opposition after a telephone conference with counsel for the parties on June 8,
2017. Doc. Nos. 36, 42. On the same date, and at the court’s direction, the clerk of court
docketed O’Dell’s second amended complaint. Doc. No. 43. In the second amended complaint,
O’Dell brought claims for violations of the FDCPA in two individual counts and one class action
count. See Second Am. Compl. at 13–15. Under the class action count, O’Dell indicated that
she would ask the court to certify two separate classes:
Account return class: (a) all consumers with a Pennsylvania address; (b) that
incurred a debt from Lancaster General Health; (c) for which Defendant sought to
collect on the debt; (d) that thereafter the debt was returned to Lancaster General
Health; (e) and subsequently placed back with Defendant; (f) after which
Defendant placed a trade line on the consumers’ credit reports for the returned
debt; (g) that reported the date placed for collection as the date it had received the
account the second time; (h) during a period beginning one year prior to the filing
of this initial action and ending 21 days after the service of the initial complaint
filed in this action.
Improper date reported: (a) all consumers with a Pennsylvania address; (b) that
incurred a debt from Lancaster General Health; (c) for which Defendant sought to
collect on the debt by placing a trade line on the consumers’ credit reports; (d)
and reporting the date placed for collection as the date of first delinquency (e)
during a period beginning one year prior to the filing of this initial action and
ending 21 days after the service of the initial complaint filed in this action.
Id. at 15–16.
NRA filed an answer to the second amended complaint on June 16, 2017. Doc. No. 46.
The court entered an order on July 6, 2017, which, inter alia, (1) directed the parties to engage in
fact and class certification discovery, and (2) set a schedule for O’Dell to move for class
certification and for NRA to respond to the motion. Doc. No. 49. The court granted NRA’s
motion to file an amended answer to the second amended complaint on July 24, 2017. Doc. Nos.
O’Dell filed a motion for class certification on September 14, 2017. Doc. No. 59. In the
motion, O’Dell clarified that she is now only seeking certification of one class, rather than two. 1
See Pl.’s Mot. for Class Certification at 1. NRA responded to the motion for class certification
on October 13, 2017. 2 Doc. No. 67. O’Dell filed a reply to NRA’s response on October 23,
2017. Doc. No. 69. On October 31, 2017, the court heard oral argument on the motion. Doc.
On February 1, 2017, the court held a telephone conference with counsel for the parties
during which O’Dell stipulated to dismissal of her individual claims in counts I and II of the
second amended complaint. Doc. Nos. 74, 75. The court then entered an order dismissing those
counts from the second amended complaint without prejudice. Doc. No. 75. Thus, the only
remaining claim is the class claim and the motion for class certification is now ripe for
As explained more below, this sole class is almost identical to the “Account return class” identified in the second
amended complaint. Compare Second Am. Compl. at 15–16, with Pl.’s Mot. for Class Certification at 1.
NRA’s response is also docketed at Docket Number 68.
FACTUAL BACKGROUND 3
The plaintiff, Corine O’Dell, owed eight medical debts to Lancaster General Health
(“LGH”). See Second Am. Compl. at 2, Doc. No. 43. After O’Dell failed to pay LGH, LGH
assigned these debts to NRA for collection. See id. In its effort to collect these debts, NRA
placed eight trade lines on O’Dell’s credit report.
See id.; see also Pl.’s Mot. for Class
Certification at Ex. F, Doc. No. 59-10.
In April 2015, LGH upgraded their computer systems. 4 See Mem. of Law in Supp. of Pl.
Corine O’Dell’s Mot. for Class Certification at ECF p. 6 (“Pl.’s Mem.”), Doc. No. 59-1; see also
Pl’s Mot. for Class Certification at Ex. C, Dep. of Ashley Chille at 162–63, Doc. No. 59-7; Id. at
Ex. D, Dep. of Gregory Dickinsheets at 42 (“Dickinsheets Dep.”), Doc. No. 59-8. Accordingly,
LGH asked NRA to “return the active LGH accounts within its possession.” Pl.’s Mem. at ECF
p. 6; see also Dickinsheets Dep. at 42, 51. In accordance with LGH’s request, NRA returned the
accounts to LGH. See Dickinsheets Dep. at 42, 51. Among those accounts were O’Dell’s eight
accounts, accounts belonging to the putative class members, and others. See id. at 42–52; see
also Pl.’s Mem. at ECF pp. 6–7; Def. National Recovery Agency’s Br. in Opp. to Pl.’s Mot. for
Class Certification (“Def.’s Br.”) at ECF pp. 8–9, Doc. No. 68. Eventually, after LGH finished
the computer upgrades, LGH turned the accounts back over to NRA for collection.
Dickinsheets Dep. at 50–52. Once NRA received the accounts from LGH, NRA listed the
accounts as new, rather than returned.
Specifically, “NRA issued new account numbers, reported the ‘date placed for collection’
as the date the accounts were returned and inputted, and also reported the ‘date of first
delinquency’ as the date the accounts were returned and inputted.” Pl.’s Mem. at ECF p. 6
This section only includes the facts relevant to the remaining claim, i.e., the class claim.
Around the same time, NRA was also updating their computer systems. See Pl’s Mot. for Class Certification at
Ex. D, Dep. of Gregory Dickinsheets at 38–52, Doc. No. 59-8.
(citation omitted); see also id. at Exs. A, B, Doc. Nos. 59-5, 59-6 (listing placement date as
December 12, 2015, for most of the LGH accounts); Dickinsheets Dep. at 51–54. O’Dell
contends that NRA made this mistake with thousands of accounts and that “[b]y changing these
dates and making them more recent, NRA’s conduct resulted in lowering Plaintiff’s credit score
and credit worthiness.” Pl.’s Mem. at ECF p. 7; see also id. at Ex. A (listing returned LGH
accounts). O’Dell further contends that by “making the debts more recent it had the effect of ‘reaging’ the debts so that they would stay on Plaintiff’s credit report two years longer than they
should.” Pl.’s Mem. at ECF p. 7. She alleges that NRA’s actions, as to these returned LGH
accounts, violated the FDCPA. See id. at ECF pp. 6–8. She asks this court to certify a class for
individuals residing in zip code 17512—a putative class of approximately 1,130 members. 5 See
id. at ECF p. 14; see also Pl.’s Mot. for Class Certification at Ex. B (listing the accounts of
individuals in zip code 17512 who held LGH accounts that NRA allegedly improperly aged).
Article III Standing
As a preliminary matter, the court must first address whether O’Dell has standing to
pursue this claim on behalf of the putative class. NRA contends that O’Dell does not meet the
requirements of Article III standing. Def.’s Br. at ECF p. 9. A class representative in a putative
class action must show
that they personally have been injured, not that injury has been suffered by other,
unidentified members of the class to which they belong and which they purport to
represent. Unless [the class representatives] can thus demonstrate the requisite
While O’Dell’s memorandum of law states that the class consists of approximately 1,300 members, See Pl.’s Mem.
at ECF p. 14, counsel for both parties subsequently submitted a letter to the court clarifying that there was a mistake
in Exhibit B (this letter is not on ECF). Specifically, some accounts were improperly included in Exhibit B.
According to O’Dell’s counsel, the only accounts that should be considered as members of the class are those where
the placement date is either December 12, 2015, or December 13, 2015. The accounts with a different placement
date are not to be considered as class members. These other accounts were mistakenly included in Exhibit B by
NRA. After removing those accounts, the putative class consists of approximately 1,130 class members.
case or controversy between themselves personally and [the defendants], none
may seek relief on behalf of himself or any other member of the class.
Warth v. Seldin, 422 U.S. 490, 502 (1975) (alterations to original) (citation and internal quotation
To establish Article III standing a plaintiff must first show an injury in fact. See Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992). There must have been “an invasion of a legally
protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not
conjectural or hypothetical . . . .” Id. (citation and internal quotation marks omitted). In
addition, a plaintiff must show causation, i.e., there must be a “causal connection between the
injury and the conduct complained of—the injury has to be fairly ... trace[able] to the challenged
action of the defendant, and not ... th[e] result [of] independent action of some third party not
before the court.” Id. (alterations in original) (citation and internal quotation marks omitted).
Furthermore, the injury must be one that can be redressed by court action. See id. at 561.
Specifically, “it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Id. (citation and internal quotation marks omitted).
Here, NRA argues that the mere re-aging of accounts is not an injury in fact, and that
even if it is, this claim is either (1) moot or (2) not ripe. The court will address NRA’s
arguments in turn.
Injury in Fact
Looking first to injury in fact, the Supreme Court recently addressed this requirement in
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). In Spokeo the Court addressed the question of
whether Thomas Robins had Article III standing when Spokeo, Inc.—a “people search
engine”—provided false, but not necessarily bad, information about him. Spokeo, 136 S. Ct. at
1544–45. The website had reported Robins “is married, has children, is in his 50’s, has a job, is
relatively affluent, and holds a graduate degree.” Id. at 1546. Robins alleged that Spokeo’s
actions violated the Fair Credit Reporting Act. See id. The Ninth Circuit held that Robins
sufficiently pled an injury in fact because he asserted violation of a statutory right that was
particularized. See id. at 1545, 1546 (citing Robins v. Spokeo, Inc., 742 F.3d 409, 412–14 (9th
Cir. 2014), vacated and remanded, 136 S. Ct. 1540 (2016)). The injury was particularized
because the injury happened to him and was not an injury generally afflicted upon a group at
large. See id. at 1546 (citing Robins, 742 F.3d at 413–14). The Supreme Court reversed and
held that the Ninth Circuit failed to consider that an injury must be both particularized and
concrete. Id. at 1545, 1548
For an injury to be particularized, “it must affect the plaintiff in a personal and individual
way.” Id. at 1548 (citation and internal quotation marks omitted). For an injury to be concrete it
must actually exist, i.e., the plaintiff must have actually been injured. Id. It is insufficient that a
defendant merely violated a statute. See id. A “bare procedural violation, divorced from any
concrete harm, [does not] satisfy the injury-in-fact requirement of Article III.” Id. at 1549. This
does not, however, mean that the injury needs to be tangible—some concrete injuries are
Specifically, a “risk of real harm” can “satisfy the requirement of
Last year, the Third Circuit had an opportunity to address the Supreme Court’s decision
in Spokeo. See In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625 (2017).
In Horizon, the four named plaintiffs brought suit on behalf of a putative class alleging that
Horizon Healthcare Services, Inc. “inadequately protected their personal information” in
violation of the Fair Credit Reporting Act. Id. at 629. Specifically, individuals stole two laptops
containing their personal information from Horizon. See id. The district court had dismissed the
action under Federal Rule of Civil Procedure 12(b)(1) for lack of standing and the plaintiffs
appealed. See id.
The Third Circuit reversed. See id. at 641. The Third Circuit began by noting that “[i]n
the context of a motion to dismiss, we have held that the [i]njury-in-fact element is not Mount
Everest. The contours of the injury-in-fact requirement, while not precisely defined, are very
generous, requiring only that claimant allege some specific, identifiable trifle of injury.” Id. at
633 (alterations in original) (citation and internal quotation marks omitted). The court adopted a
narrow reading of Spokeo and stated that
[a]lthough it is possible to read the Supreme Court’s decision in Spokeo as
creating a requirement that a plaintiff show a statutory violation has caused a
“material risk of harm” before he can bring suit, we do not believe that the Court
so intended to change the traditional standard for the establishment of standing.
Id. at 637 (citation omitted). The court explained that after Spokeo there are
two tests for whether an intangible injury can (despite the obvious linguistic
contradiction) be “concrete.” The first test, the one of history, asks whether “an
alleged intangible harm” is closely related “to a harm that has traditionally been
regarded as providing a basis for a lawsuit in English or American Courts.” If so,
it is likely to be sufficient to satisfy the injury-in-fact element of standing. But
even if an injury was “‘previously inadequate in law,’” Congress may elevate it
“‘to the status of [a] legally cognizable injur[y].’” Because “Congress is well
positioned to identify intangible harms that meet minimum Article III
requirements, its judgment is ... instructive and important.” The second test
therefore asks whether Congress has expressed an intent to make an injury
Id. (alterations in original) (internal citations omitted).
Horizon is arguably in tension with Spokeo. However, the extent to which the two may
be in conflict is immaterial in this case because the outcome is the same under either test. Under
Horizon, this case meets the injury-in-fact requirement because Congress in enacting the FDCPA
“expressed an intent to make [this] injury redressable.” Id. Under a broader reading of Spokeo,
one that requires proof of a real risk of harm, this case still meets the injury in fact requirement.
When a trade line is added to a credit account, it has a negative impact on that individual’s credit
score. Trade lines, by statute, expire after seven years. See 15 U.S.C. § 1681c(a)(4) (“[N]o
consumer reporting agency may make any consumer report containing . . . [a]ccounts placed for
collection . . . which antedate the report by more than seven years.” (alterations to original)).
When a trade line is improperly re-aged so that it expires after the seven-year time limit has run,
(e.g., a trade line that would properly expire in 2018, is set to expire in 2020) there is a real risk
that the individual will be harmed, in the form of a lower credit score.
NRA argues that the putative class members have not been harmed because it has either
fixed the trade line dates or removed them altogether. This argument is immaterial to the injuryin-fact requirement, because, even under the broad reading of Spokeo all that is required is a one
time “risk of real harm,” not a continuing or ongoing “risk of real harm.” See Spokeo, 136 S. Ct.
at 1549. NRA’s argument regarding their corrective actions is more appropriately considered in
the mootness analysis.
Turning to NRA’s mootness argument, it contends that these claims are moot because it
has either corrected the dates on these trade lines or removed them altogether. To support its
mootness argument, NRA cites two cases: County of Los Angeles v. Davis, 440 U.S. 625 (1979)
and Swift & Co. v. United States, 276 U.S. 311 (1928). In Davis, the Court held that a case may
be moot when two requirements are met: “(1) it can be said with assurance that there is no
reasonable expectation . . . that the alleged violation will recur, and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged violation.” Davis, 440 U.S.
at 631 (citations, internal citations, and internal quotation marks omitted). Ultimately, “the
central question of all mootness problems is whether . . . [the court can provide] meaningful
relief.” Jersey Cent. Power & Light Co. v. State of N.J., 772 F.2d 35, 39 (3d Cir. 1985).
Here, O’Dell’s request for injunctive relief is likely moot. Notably, O’Dell does not
appear to dispute this contention. See Reply in Further Supp. of Pl. Corine O’Dell’s Mot. for
Class Certification at ECF p. 13 (“Pl.’s Reply”) (“While arguably, if Plaintiff were seeking
injunctive relief in this matter, perhaps the claim would be moot[.]”), Doc. No. 69. NRA
contends that it has either removed the accounts in question or properly fixed the dates.
Additionally, this conduct is unlikely to recur. For this conduct to recur two unlikely events
would have to happen. First, LGH would have to upgrade its computer systems again (an event
that probably will not happen again in the near future). Second, NRA would have to improperly
age the accounts again. Thus, an injunction is unlikely to provide meaningful relief.
This does not, however, moot O’Dell’s case because “the availability of damages or other
monetary relief almost always avoids mootness.” Jersey Cent. Power & Light Co., 772 F.2d at
41. Moreover, even if NRA has removed all the trade lines involved in this case, that would not
“completely and irrevocably eradicate the effects of the alleged violation.” Davis, 440 U.S. at
631. It is entirely possible that the class members suffered an economic harm when their
accounts were improperly aged (or at the very least, it is plausible that they suffered a statutory
harm). Fixing the accounts did not “completely and irrevocably eradicate” this harm because it
did not provide any monetary relief. Consequently, O’Dell’s case is not moot.
NRA contends that O’Dell’s claim is not yet ripe because she “is able to show no
evidence of diminished credit worthiness or other harm and damages suffered as a result of
NRA’s alleged actions.” Def.’s Br. at ECF p. 13. While injury is a factor in the ripeness inquiry,
this argument is better considered in the context of the injury-in-fact inquiry.
The purpose of the ripeness doctrine is to prevent plaintiffs from bringing premature
cases. See Peachlum v. City of York, Pennsylvania, 333 F.3d 429, 433 (3d Cir. 2003) (“The
function of the ripeness doctrine is to determine whether a party has brought an action
prematurely . . . .”). It ensures that the facts of the plaintiff’s case are adequately developed prior
to adjudication. See id. In determining whether a case is sufficiently ripe for adjudication,
courts should consider the following factors:
are the parties in a sufficiently adversarial posture to be able to present their
positions vigorously; are the facts of the case sufficiently developed to provide the
court with enough information on which to decide the matter conclusively; and is
a party genuinely aggrieved so as to avoid expenditure of judicial resources on
matters which have caused harm to no one.
Id. at 433–34 (citation omitted).
Here, the facts are sufficiently developed. The central fact of this case is that NRA
improperly aged a number of LGH accounts. All the necessary facts surrounding this event have
already occurred and there are no facts that the court needs to wait to develop before adjudicating
the claim. Additionally, to the extent it is relevant in the ripeness inquiry, O’Dell has shown
See supra Section III.1.a.
Accordingly, O’Dell’s claim is ripe for
Class Requirements Under Rule 23(a)
Under Federal Rule of Civil Procedure 23(a), a class must meet the four requirements of
numerosity, commonality, typicality, and adequacy:
(a) Prerequisites. One or more members of a class may sue or be sued as
representative parties on behalf of all members only if: (1) the class is so
numerous that joinder of all members is impracticable; (2) there are 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).
Here, O’Dell’s proposed class is:
(a) all consumers with a Pennsylvania address and a zip code of 17512; (b) that
incurred a debt from Lancaster General Health; (c) for which Defendant sought to
collect on the debt; (d) that thereafter the debt was pulled back by Lancaster
General Health; (e) and subsequently returned to Defendant; (f) after which
Defendant placed a trade line on the consumers’ credit reports for the returned
debt; (g) that reported the date placed for collection and the date of delinquency as
the date the accounts had been returned and inputted; (h) during a period
beginning one year prior to the filing of this initial action and ending 21 days after
the service of the initial complaint filed in this action.
Pl.’s Mem. at ECF p. 9. The court will examine each of the Rule 23(a) requirements in turn.
Numerosity is satisfied because the proposed class of approximately 1,130 members is
sufficiently large that joinder would be impracticable. Rule 23(a)(1) requires that “the class is so
numerous that joinder of all members is impracticable . . . .” Fed. R. Civ. P. 23(a)(1). While
courts typically avoid putting a number on this requirement, this requirement is generally
satisfied when the class exceeds 40 members. See Steward v. Abraham, 275 F.3d 220, 227–28
(3d Cir. 2001) (“No minimum number of plaintiffs is required to maintain a suit as a class action,
but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds
40, the first prong of Rule 23(a) has been met.”). Here, NRA does not dispute that O’Dell’s
proposed class satisfies this requirement. Consequently, the court finds that Rule 23(a)(1) is
The commonality requirement is satisfied because there are common questions of law
and fact that will generate common answers. Rule 23(a)(2) requires that “there are questions of
law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This rule does “not require identical
claims or facts among class member[s].” Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 597 (3d
Cir. 2012) (alteration in original) (citation and internal quotation marks omitted). The emphasis
in this rule is not on the number of common questions. See Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 350–59 (2011). In fact, “[e]ven a single [common] question will do,” id. at 359
(alterations in original) (citation and internal quotation marks omitted), so long as “a classwide
proceeding [is capable of] generat[ing] common answers apt to drive the resolution of the
Id. at 350 (alterations to original) (emphasis in original) (citation and internal
quotation marks omitted). Moreover, the emphasis in this inquiry is not on the sufficiency of the
class representative, but on the sufficiency of the putative class as a whole. See Kline v. Security
Guards, Inc., 196 F.R.D. 261, 270 (E.D. Pa. 2000) (“[T]he numerosity and commonality
requirements . . . evaluate the sufficiency of the class itself . . . .” (alterations to original)).
O’Dell contends that
there are common questions of law and fact here. Factually, each Class Member
had inaccurate, more recent, dates reported to the credit bureaus concerning their
debts with Lancaster General Health. Legally, whether the reporting of inaccurate
dates to the credit bureaus violates the FDCPA is a question of law for each Class
Pl.’s Mem. at ECF p. 15. The court agrees with O’Dell on both points: there are common factual
questions and there is a common legal question. Moreover, the answer to the common legal
question, whether NRA’s inaccurate date-reporting violates the FDCPA, will generate a common
answer that will likely resolve all the class members’ claims. If this inaccurate date-reporting
violates the FDCPA then, so long as each class member was actually subjected to NRA’s
inaccurate date-reporting, NRA will be liable under the FDCPA. Because one common question
is sufficient, Wal-Mart, 564 U.S. at 359, and there is at least one here, Rule 23(a)(2) is satisfied.
O’Dell’s claim is typical of the class because she is pursuing the same legal theory and
there are few, if any, factual differences between her claim and those of the putative class
members. Rule 23(a)(3) asks whether “the claims or defenses of the representative parties are
typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Typicality entails an
inquiry whether the named plaintiff’s individual circumstances are markedly different or ... the
legal theory upon which the claims are based differs from that upon which the claims of other
class members will perforce be based.” Hassine v. Jeffes, 846 F.2d 169, 177 (3d Cir. 1988)
(citations and internal quotation marks omitted). “Unlike the numerosity and commonality
requirements, . . . the typicality requirement assess the sufficiency of the named plaintiff.” See
Kline, 196 F.R.D. at 270 (citation omitted).
Here, O’Dell stipulated to a dismissal of her individual claims. See February 1, 2018
Order, Doc. No. 75. The only claim she now seeks to bring is the same as the class claim, i.e.,
that NRA violated the FDCPA when it inaccurately reported the dates on her trade lines. See
Second Am. Compl. at 15–19.
Factually, O’Dell’s claim as it relates to this legal theory is substantially similar, if not
identical, to the claims of the other class members. Legally, both O’Dell and the class members
need to show that improperly aging accounts is a violation of the FDCPA. While it is unclear
whether O’Dell and the class members need to show that NRA intended to re-age the accounts or
whether this is a strict liability violation, the court can find no reason why O’Dell would pursue a
different legal theory than the other class members.
O’Dell contends that this is a strict liability violation. See Pl.’s Reply at ECF pp. 22–23.
She argues that 15 U.S.C. § 1692k(c) is an affirmative defense. See id. at 22. She further
contends that it does not apply here because this was not a bona fide error and NRA did not have
procedures in place to prevent it from occurring. See id. at 23.
Section 1692k(c) prevents a finding of liability in cases where the violation was an
unintentional, bona fide error and the defendant had procedures in place that were “reasonably
adapted to avoid any such error[s].” 15 U.S.C. § 1692k(c) (alteration to original). In light of this
provision, O’Dell and the other class members may need to show that the purported error was
either intentional or not bona fide. But this is unlikely to impact the legal theory O’Dell pursues.
Because each account in this case was part of the same event (LGH returning accounts to NRA
and NRA re-aging them), each class member (and O’Dell) will have to prove the same level of
intent. As the same intent requirement will apply to O’Dell’s and all the other class members’
claims, the same legal theory will almost certainly apply to O’Dell’s and all the other class
The only possible relevant legal or factual difference here is the number of improperly
aged trade lines. NRA contends that because O’Dell had more trade lines, her damages are
potentially greater than most of the other class members. Def.’s Br. at ECF p. 18. NRA’s
argument is not compelling because the number of trade lines is unlikely to affect any potential
damages award in this case because it appears O’Dell is pursuing statutory damages under 15
U.S.C. § 1692k. Under this provision, the court can award “such amount as the court may allow
for all other class members, without regard to a minimum individual recovery, 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). Thus, NRA’s attempts to characterize the damages award as compensatory—
i.e., that 8 trade lines equals more damages—is most likely inaccurate. Under the statutory
award scheme pursued by O’Dell, it is unlikely that she would recover more damages on the
basis of the number of trade lines on her credit report. 6 See Pl.’s Reply at ECF p. 26 (“Plaintiff
is not entitled to more damages than any Class Member because Plaintiff is pursuing only
statutory damages provided by the FDCPA.”).
NRA’s other argument, that “Plaintiff’s class definitions completely ignore her FCRA
allegations and additional FDCPA claims against NRA,” Def.’s Br. at ECF p. 18, is irrelevant in
light of her stipulation to dismiss her individual claims. For these reasons, the court finds that
O’Dell’s claim is typical of the claims of the putative class members.
O’Dell and counsel are adequate representatives because both are capable of pursuing
and protecting the interests of the putative class. Rule 23(a)(4) requires that “the representative
parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). On
the adequacy prong, a court must determine both whether class counsel and the representative
plaintiff will adequately represent the class. See In re Prudential Ins. Co. Am. Sales Prac. Litig.
Agent Actions, 148 F.3d 283, 312 (3d Cir. 1998). “First, the adequacy of representation inquiry
tests the qualifications of the counsel to represent the class. Second, it serves to uncover
conflicts of interest between named parties and the class they seek to represent.” Id. at 312
(internal quotation marks and citations omitted). The court will address O’Dell’s adequacy as
class representative first.
Adequacy of Class Representative
The primary inquiry in the adequacy of representation analysis is whether there are
conflicts between the class representative and the putative class. See Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 625 (1997); see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 856–57
It is, however, possible that O’Dell would recover more damages because she is class representative. 15 U.S.C. §
1692k(a)(2)(B) provides that the named plaintiff can recover “such amount . . . as could be recovered under
subparagraph (A).” Subparagraph (A) provides for damages up to $1,000. See 15 U.S.C. § 1692k(a)(2)(A).
(1999). In other words, “the linchpin of the adequacy requirement is the alignment of interests
and incentives between the representative plaintiffs and the rest of the class.”
Volkswagen Aktiengesellschaft, 681 F.3d 170, 183 (3d Cir. 2012) (citations omitted).
“Representativeness is not appropriate where the named plaintiffs have different claims and/or
circumstances than other members, thereby creating the possibility of a less than vigorous
advancement of the case for all plaintiffs involved.” Reilly v. Gould, Inc., 965 F. Supp. 588, 600
(M.D. Pa. 1997).
Here, O’Dell has dropped all her individual claims and is only proceeding with the class
The majority of NRA’s arguments center on potential conflicts between O’Dell’s
individual claims and the class claim. Def.’s Br. at ECF pp. 18–20. Because O’Dell has dropped
her individual claims, these arguments are no longer relevant.
On the class claim, the only conflict NRA identifies is that O’Dell “has significantly
greater damages under the FDCPA due to the number of LGH accounts she alleges were re-aged
by NRA on her credit report.” Def.’s Br. at ECF p. 20. This argument is unavailing for the same
reasons discussed in the section on typicality. Namely, because O’Dell and the class are only
pursuing statutory damages, the number of trade lines placed on O’Dell’s account will not cause
her to recover greater damages. Moreover, even if they did, this would not be a sufficient
conflict to destroy adequacy. O’Dell would still be incentivized to maximize her recovery under
her claim, and because she is pursuing the same legal theory as the rest of the class, she would
also be pursuing a maximum recovery for the class.
The court cannot find, nor has NRA identified, any other potential conflicts that would
destroy O’Dell’s adequacy as a class representative. There is no indication in the record that she
is unfamiliar with the facts of this case or that she is insufficiently interested in litigating this
action. Consequently, the court finds that O’Dell is an adequate class representative.
Adequacy of Class Counsel
Rule 23(g) elaborates on Rule 23(a)(4)’s requirement that class counsel be adequate.
Specifically, Rule 23(g) states that:
(1) Appointing Class Counsel. Unless a statute provides otherwise, a court that
certifies a class must appoint class counsel. In appointing class counsel, the court:
(A) must consider:
(i) the work counsel has done in identifying or investigating
potential claims in the action;
(ii) counsel’s experience in handling class actions, other complex
litigation, and the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the
(B) may consider any other matter pertinent to counsel’s ability to fairly
and adequately represent the interests of the class;
(C) may order potential class counsel to provide information on any
subject pertinent to the appointment and to propose terms for attorney’s
fees and nontaxable costs;
(D) may include in the appointing order provisions about the award of
attorney’s fees or nontaxable costs under Rule 23(h); and
(E) may make further orders in connection with the appointment.
Fed. R. Civ. P. 23(g). As a general matter, “these standards are easily met . . . .” § 3:72,
Adequacy of Class Counsel under Rule 23(a)(4), 1 Newberg on Class Actions § 3:72 (5th ed.).
“On the issue of professional competence of counsel for the class representative, the presumption
fairly arises that all members of the bar in good standing are competent.” Zeno v. Ford Motor
Co., Inc., 238 F.R.D. 173, 188 (W.D. Pa. 2006) (internal quotation marks and citation omitted).
While Rule 23(g) directs the court to consider whether class counsel has “experience in handling
class actions,” the fact that class counsel has little class action experience does not destroy his or
her adequacy as class counsel. See § 3:73, Adequacy of Class Counsel under Rule 23(a)(4)—
Counsel’s Knowledge and Experience With Substantive Law or Class Action Litigation, 1
Newberg on Class Actions § 3:73 (5th ed.); see, e.g., Mathers v. Northshore Mining Co., 217
F.R.D. 474, 486 (D. Minn. 2003) (holding counsel adequate despite minimal prior class action
Here, NRA’s primary argument is that counsel of record for O’Dell, Zemel Law LLC,
has “neither the experience nor the resources to adequately litigate this class action lawsuit.”
Def.’s Br. at ECF p. 20. Specifically, NRA asserts that “Zemel Law, LLC is an extremely
small boutique consumer litigation office consisting of only two recently barred attorneys, who
to Defendant’s counsel’s knowledge, have never certified a class action in an FDCPA case.” Id.
While counsel’s class action experience is a relevant inquiry, it is not dispositive.
Moreover, the court finds that, contrary to NRA’s assertion, Zemel Law is sufficiently
experienced to represent this class. Zemel Law is a consumer litigation firm. See Zemel Law:
Consumer Protection (Last Visited Feb. 20, 2018), http://www.fcra-attorney.com/ (listing
FDCPA litigation as one of the firm’s three main practice areas). The firm focuses on FDCPA,
FCRA, and TCPA litigation. See id. Additionally, Zemel Law recently reached a class action
settlement in Rincon-Marin v. Credit Control, LLC, No. 17-0007 (D. Conn. 2017), and is
involved in several other FDCPA cases. See, e.g., McCants v. Revenue Group, No. 17-cv-2227
(E.D. Pa. 2017).
The court finds that, in light of Zemel Law’s experience (albeit, limited) in handling class
actions, experience handling FDCPA cases, knowledge of the FDCPA, and diligent efforts in
pursuing the class claim in this case, all three of the first Rule 23(g)(1)(A) factors weigh in favor
of appointing Zemel Law as class counsel.
Moreover, the court finds that the fourth factor—“the resources that counsel will commit
to representing the class”—also weighs in favor of appointing Zemel Law as class counsel.
NRA’s arguments regarding the size of Zemel Law are unavailing. Zemel Law’s lengthy and
detailed briefs in this case are indicative of adequate resources, time, and personnel, and the
court can find no reason why Zemel Law will not continue devoting sufficient resources to this
case. Moreover, this case is not a particularly complex class action lawsuit. It involves a single
legal question: whether NRA’s re-aging of these LGH accounts was a violation of the FDCPA.
And it involves few factual questions, most of which appear to be either undisputed or easy to
prove. Consequently, a large firm with extensive resources is not needed. The court finds that
Zemel Law is adequate as class counsel.
Rule 23(b)’s Requirements
Once the Rule 23(a) requirements have been established, a court must then consider
whether one of the Rule 23(b) requirements—the requirements specifying the various types of
classes—have been satisfied. See Fed. R. Civ. P. 23(b). Here, O’Dell is seeking to certify the
class under Rule 23(b)(3). To establish a 23(b)(3) class, a prospective class representative must
show that (1) common questions of fact and law predominate, and (2) the class action is the
superior method of litigation for the claims. See id. The court will consider each question in
Common Questions of Fact and Law Predominate
“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.” Amchem Prods., 521 U.S. at 623. As the
Third Circuit has explained:
One relevant “guidepost[ ] that direct[s] the predominance inquiry[ ]” is “that
commonality is informed by the defendant’s conduct as to all class members and
any resulting injuries common to all class members[.]” Sullivan, 667 F.3d at 297.
“[Wal–Mart v.] Dukes actually bolsters [this] position, making clear that the focus
is on whether the defendant’s conduct was common as to all of the class
members, not on whether each plaintiff has a ‘colorable’ claim.” Id. at 299. Rule
23 does not require the absence of all variations in a defendant's conduct or the
elimination of all individual circumstances. Rather, predominance is satisfied if
common issues predominate. In re Linerboard Antitrust Litig., 305 F.3d 145, 162
(3d Cir.2002). “[T]he focus of Rule 23(b)(3) is on the predominance of common
questions [.]” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, ––– U.S. –––
–, 133 S.Ct. 1184, 1195, 185 L.Ed.2d 308 (2013) (emphasis in original). A
district court “analyze[s] predominance in the context of Plaintiffs’ actual
claims.” Neale, 794 F.3d at 372.
Reyes v. Netdeposit, LLC, 802 F.3d 469, 489 (3d Cir. 2015) (alterations in original). “The
presence of individual questions . . . does not mean that the common questions of law and fact do
not predominate over questions affecting individual members as required by Rule 23(b)(3) . . . .”
Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir. 1985).
For the reasons identified in the court’s discussion on the typicality, commonality, and
adequacy factors, the court finds that common issues of law and fact predominate in this case.
To briefly reiterate: (1) the same legal issue will apply to and resolve all the class members’
claims; (2) all class members will be pursuing the same legal theory; (3) individualized damages
inquiries are not needed; (4) the claims are almost factually identical (from a legal perspective,
they probably are factually identical); and (5) this case does not involve difficult issues of proof
(it will not be difficult for the class members to show that they held accounts that were in the
group of accounts NRA improperly aged).
The Class Action is the Superior Method of Litigation for this Claim
In making the superiority determination, courts should consider the following factors:
(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).
In this case, the class action is the superior method of litigation. The class members do
not have a significant interest in “individually controlling the prosecution or defense of separate
actions . . . .” Id. The recovery on these claims is small; there are not individual defenses
available; and the same legal theory will likely govern each claim.
Nevertheless, NRA contends that the class members do have a significant interest in
individually controlling their actions. NRA argues that because the class members could recover
greater damages if they pursued these claims individually, the class action is not the superior
method of litigating these claims.
Damages for this class action will be calculated under 15 U.S.C. § 1692k. Section 1692k
provides a debt collector shall be liable
in the case of a class action, (i) [for] such amount for each named plaintiff as
could be recovered under subparagraph (A), and (ii) such amount as the court may
allow for all other class members, without regard to a minimum individual
recovery, 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) (alteration to original). In oral argument, NRA contended that its net
worth is $84,000. A net worth this low could foreseeably result in a de minimis recovery for
each individual class member (one percent of $84,000 is $840; $840 split amongst a class of
1,300 members is approximately $0.65 per class member). If the putative class members were to
pursue these claims on their own, they could recover actual damages or statutory damages up to
See 15 U.S.C. § 1692k(a)(2)(A).
While this argument has some facial appeal,
ultimately, NRA’s efforts to protect the rights of the class members to recover more money from
it are unavailing. See Lemire v. Wolpoff & Abramson, LLP, 256 F.R.D. 321, 330–31 (D. Conn.
2009) (discussing disingenuous nature of this argument).
As a preliminary matter, it is far from clear that NRA’s net worth is as low as it contends.
At oral argument, O’Dell contended that NRA is about to receive a windfall recovery in a
pending claim (purportedly in the millions of dollars). O’Dell and NRA are in the process of
performing discovery on NRA’s net worth. For purposes of this motion, however, the court has
sufficient information to make the superiority determination.
Courts facing this issue typically hold that unless the defendant’s net worth is negative,
superiority is not destroyed. See Kohnlenberger v. Dickinson, No. 94 C 4696, 1996 WL 131736,
at *2 (N.D. Ill. Mar. 15, 1996) (noting that class action is not superior where defendant’s net
worth is “zero or less”); see, e.g., Hicks v. Client Servs., Inc., 257 F.R.D. 699, 701 (S.D. Fla.
2009) (collecting cases and refusing to decertify class despite evidence individual class members
may only receive $1.24); Abels v. JBC Legal Grp., P.C., 227 F.R.D. 541, 546–47 (N.D. Cal.
2005) (finding superiority prong met even though class members would likely only receive $0.25
per person); Macarz v. Transworld Sys., Inc., 193 F.R.D. 46, 55 (D. Conn. 2000) (“Although
class members may recover smaller damages amounts than would have been the case in
individual actions, the Court finds that the class action vehicle is nonetheless superior, given the
remote likelihood that such individual actions actually would be brought.”). But see Barkouras
v. Hecker, No. 06-cv-0366, 2006 WL 3544585, at *4 (D.N.J. Dec. 8, 2006) (holding that
superiority was satisfied even though one of defendants was alleged to have a negative net
worth). Here, NRA has not contended that its net worth is negative.
Additionally, Rule 23(c) permits class members in Rule 23(b)(3) classes to opt out and
bring their own claims.
See Fed. R. Civ. P. 23(c)(2)(B); Lemire, 256 F.R.D. at 330–31
(discussing the significance of the opt out provision in FDCPA class actions where the defendant
has contended individual recovery will be de minimis); see also Fed. R. Civ. P. 23(c)(2)(B)
advisory committee’s note to 2003 amendment (“The opportunity to request exclusion from a
proposed settlement is limited to members of a (b)(3) class.”). Because Rule 23(b)(3) gives class
members the option to opt out of the class, class members who desire to bring their own claims
can still do so. Thus, NRA’s professed concern is adequately protected even when the class is
certified, i.e., class members who desire to win greater awards from NRA can still pursue them.
Consequently, the court finds that the first factor weighs in favor of a finding of superiority.
Second, the court is not aware of, nor has NRA identified, any class members who have
initiated “any litigation concerning the controversy . . . .” Fed. R. Civ. P. 23(b). Consequently,
the second factor weighs in favor of a finding of superiority.
Third, it is desirable to concentrate “the litigations of the claims in [this] forum . . . .” Id.
These are small claims that the class members likely will not pursue individually if the class is
not certified. Additionally, the events giving rise to this case occurred in the Eastern District of
Pennsylvania, and O’Dell and the defendant reside in this district. And finally, because the class
has been limited to class members with a 17512 zip code, it is very likely that all (or at least,
most) of class members will reside within this district.
NRA, however, has argued that O’Dell’s decision to limit the class to zip code 17512
actually cuts against a finding of superiority. Specifically, NRA argues that by limiting the
putative class to “approximately 1,600 members in one Pennsylvania zip code. . . . Plaintiff’s
counsel failed to adequately protect the right [sic] and interests of the other 63,000 consumers
that were allegedly affected by NRA’s reporting of LGH debts in 2016.” Def.’s Br. at ECF pp.
20–21 (internal citation omitted). This argument is also unavailing.
While the Third Circuit has yet to address whether a class action brought under section
1692k can be limited by geography, the Seventh Circuit persuasively addressed that question in
Mace v. Van Ru Credit Corp., 109 F.3d 338, 343–44 (7th Cir. 1997). In that case, the court
rejected the defendant’s argument that the statutory cap of $500,000 should be interpreted to
exclude multiple classes based on geography. See id. at 344. The court noted that the plain
language of the statute did not prohibit multiple classes. See id. The court also noted that there
is “no way of telling whether . . . repeated class actions are possible or likely . . . .” Id.
The court agrees with the Seventh Circuit’s focus on the text of the statute. The statute
broadly states: “in the case of a class action . . . .” 15 U.S.C. § 1692k(a)(2)(B). It does not cabin
the number of class actions that can be pursued or prohibit the use of geographical limitations in
the definition of the class. Because the unrestrictive language of the statue is clear, the court
does not need to wade into the well-articulated policy arguments presented by NRA. See Def.’s
Brief at ECF p. 20–21.
Fourth, “the likely difficulties of managing [this] class action” are small. As discussed
above in the sections on commonality and typicality, there is only one relevant legal issue and
there are few, if any, factual differences. Moreover, the answer to that legal question will likely
resolve every single claim in this case. Consequently, the managerial challenges presented by
this class action are small.
The Third Circuit has held that “the members of a [23(b)(3)] class [must be] identifiable
at the moment of certification.” Shelton v. Bledsoe, 775 F.3d 554, 559 (3d Cir. 2015). Here,
O’Dell has clearly defined the class. Under her definition of the class, the class members will be
easy to identify.
While, as noted in the introduction, this is a tenuous case from both a factual and legal
viewpoint, this putative class meets the requirements of Rule 23. Moreover, O’Dell has standing
to assert this claim on behalf of the class. Accordingly, the court will reluctantly grant the
motion for class certification.
The court will enter a separate order.
BY THE COURT:
/s/ Edward G. Smith
EDWARD G. SMITH, J.
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