Rosenberg v. CCS Commercial, LLC et al

Filing 81

ORDER denying Plaintiff's 36 Motion for Class Certification. Signed by Judge Marsha J. Pechman. (PM)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

AYANNA ROSENBERG,
Plaintiff,

11
12

CASE NO. C17-476 MJP
ORDER ON MOTION FOR CLASS
CERTIFICATION

v.

13

CCS COMMERCIAL, LLC, et al.,

14

Defendants.

15
16

The above-entitled Court, having received and reviewed:

17

1. Plaintiff’s Motion to Certify Class (Dkt. No. 36),

18

2. Defendant CCS’s Opposition to Plaintiff’s Motion to Certify Class (Dkt. No. 44),

19

3. Progressive Direct Insurance Company’s Opposition to Plaintiff’s Motion for Class

20
21
22

Certification (Dkt. No. 45),
4. Plaintiff’s Consolidated Reply in Support of Motion for Class Certification (Dkt. No.
54),

23
24

ORDER ON MOTION FOR CLASS CERTIFICATION - 1

1

5. Surreply of Defendant CCS in Opposition to Plaintiff’s Motion to Strike (Dkt. No.

2
3

67),
all attached declarations and exhibits, and relevant portions of the record, rules as follows:

4

IT IS ORDERED that Plaintiff’s motion to certify a class is DENIED.

5

IT IS FURTHER ORDERED that Plaintiff’s motion to strike is DENIED.

6

Background

7
Defendant CCS Commercial LLC (“CCS”) is a collection service employed by insurance
8
companies (including Defendant Progressive Direct Insurance Company; “Progressive”) to
9
collect payments from drivers who are involved in auto accidents with their insureds.
10
On July 13, 2013, Plaintiff (who was uninsured at the time) was involved in a collision
11
with one of Progressive’s insureds, David Waters. Progressive paid for the repair of Waters’
12
vehicle, then hired CCS to recover the cost of the repairs from Plaintiff. No suit was filed or
13
judgment obtained against Plaintiff. About a year after the accident, CCS sent two collection
14
notices to Plaintiff. (Dkt. No. 1-2, Class Action Complaint [“CAC”] ¶¶ 1.1 – 5.19.)
15
Plaintiff alleges that the form and content of the notices are intended to deceptively
16
mimic debt collection notices:
17

•

18
19
20

•
•

“CREDIT COLLECTION SERVICES” appears in capitalized and bolded letters across
the top.
“WARNINGNOTICE.COM” appears four times in the border around the notice.
The letter informs the recipient that “[i]n the absence of [insurance] coverage, our client
will consider you financially responsible for your portion of the damages determined by
their adjuster.”

21
(Dkt. No. 38-1, Decl. of Bulthuis, Ex. 1.) Plaintiff contacted CCS about the amount alleged in
22
the notice and received a second letter from CCS dated July 24, 2014 documenting the loss and
23
confirming that the amount was correctly stated. Plaintiff was instructed to “[e]ither remit full
24

ORDER ON MOTION FOR CLASS CERTIFICATION - 2

1

payment at this time, or contact this office immediately upon review of the attached supporting

2

documentation.” (Id. at Ex. 2.)

3

On August 3, 2014, Plaintiff received a second notice from CCS. It contained the same

4

“CREDIT COLLECTION SERVICES” header and “WARNINGNOTICE.COM” border and

5

stated:

6

The above referenced amount still remains unpaid. Unless we hear from you
directly, we will attempt to contact you at your residence and/or place of
employment, in compliance with applicable State and Federal Law(s).
Unless you can provide this office with valid insurance information that existed
on the date of incident, our client will consider you financially responsible for
your portion of the damages as determined by their adjuster.

7
8
9
10

Please be advised, failure to respond to this notice could result in a law suit being
filed against you and/or license suspension (contingent upon applicable state law).

11
12
13
14
15
16
17
18
19
20
21
22
23

(Id. at Ex. 3.)
Immediately after the accident, however (and before receiving any written notices),
Plaintiff contacted an attorney for whom she had previously worked. (Dkt. No. 46, Ex. A, Depo
of Plaintiff at 27:20-28:6, 76:5-9.) Her former employer referred her to an attorney with whom
he shared an office: Matthew Ide, Plaintiff’s current counsel and former class counsel in Panag v.
Farmer Ins. Co. of Wash., 166 Wn.2d 27 (2009), a class action suit wherein the class members’
standing to bring a CPA action against a collection agency’s allegedly deceptive attempts to
collect on subrogation claims was upheld. Plaintiff estimates she talked to Mr. Ide five times
before receiving any written communication from CCS. (Id. at 34:1-5, 44:7-10.)
In October, 2014, CCS believed it had exhausted all avenues for collecting from Plaintiff
and determined to close her file. However, before the file could actually be closed, Plaintiff
called and indicated she wished to set up payment arrangements on the subrogation claim. (Dkt.

24

ORDER ON MOTION FOR CLASS CERTIFICATION - 3

1

No. 48, Decl. of Shapiro, ¶15, Ex. B at 49.) As of November 14, 2014, Plaintiff had satisfied the

2

subrogation claim with CCS. (Id. at ¶ 13.)

3

Then, in July 2015, Plaintiff filed a small claims suit against the other driver in the

4

accident, Mr. Waters (Progressive’s insured). Significantly, she did not claim the amount she

5

had paid to CCS as part of her damages in that suit. (Depo of Plaintiff, 86:4-88:6; Exs. 6 and 7.)

6

Waters did not appear at the hearing and Plaintiff received a default judgment for $2,753.65.

7

(Dkt. No. 46, Decl. of Walsh, Ex. P.) Progressive paid the entire judgment. (Id. at Ex. Q.)

8
9
10

During discovery, CCS identified “the number of Washington residents who made a
payment/payments to CCS between September 12, 2012 and September 27, 2016 after receipt of
a subrogation recovery letter” as 4,605. (Dkt. No. 1-3, Decl. of Malone, ¶ 8.)

11

Plaintiff proposes the following Class:

12

All persons in the State of Washington, and all persons who were involved in a
collision with a Washington insured, who, after September 28, 2012, received a
debt collection-type notice identified as a “subrogation claims” from CCS where
CCS was attempting to recover a subrogated interest in the form of an
unadjudicated, unliquidated tort claim on behalf of an insurance company
(including but not limited to Progressive) and remitted payment to CCS or an
insurance company.

13
14
15
16

Plaintiff proposes the following Subclass:
17
All persons in the State of Washington, and all persons who were involved in a
collision with a Washington insured, who, after September 28, 2012, received a
debt collection-type notice identified as a “subrogation claims” from CCS where
CCS was attempting to recover a subrogated interest in the form of an
unadjudicated, unliquidated tort claim on behalf of Progressive and remitted
payment to CCS or Progressive. 1 (Dkt. No. 36, Motion at 12-13.)

18
19
20
21
22
23
24

1

Plaintiff has narrowed her Class and Subclass definitions from those stated in her complaint, and cites to case law
permitting such a narrowing without the necessity of amending her complaint. Abdeljalil v. General Elec. Capital
Corp., 306 F.R.D. 303, 306 (S.D. Cal. 2015). Defendants interposed no objections.

ORDER ON MOTION FOR CLASS CERTIFICATION - 4

1
2
3

Discussion
Motion to strike
Before analyzing the certification request, the Court turns to Plaintiff’s motion to strike

4

certain of Defendant’s evidentiary offerings. The motion appears within Plaintiff’s reply and

5

Defendant was allowed 6 pages of surreply to respond.

6

Portions of Declaration of Shapiro (COO)( Dkt. No. 48)

7

•

Paragraphs 6-9, 12, 18: Plaintiff moves to strike all mention of CCS’s

8

subrogation claims practice, including the number of insurers it collects for, on

9

the grounds that CCS was ordered to produce that information to Plaintiff and

10

failed to do so. The order Plaintiff refers to is an order on a motion to compel

11

which was issued on January 19, 2018 (Dkt. No. 40) ordering Defendant to

12

produce certain information regarding their subrogation claims practice.

13

However, as CCS points out, only one specific portion of the order contained a

14

date-certain deadline (“within 7 days”) and the agency produced that information

15

within the time allotted. There was no deadline on the remaining items and CCS

16

produced them by on March 28.

17

The Court notes initially that Plaintiff’s claim that “[t]he Court ordered

18

CCS to describe its practices for collecting on subrogation claims” is not accurate

19

– the order required Defendant to produce “any notices or written policies for

20

when collection notices are to be used and what notice should contain.” (Dkt. No.

21

40 at 1.) Second of all, Plaintiff does not claim or demonstrate any prejudice

22

from the failure. Defendant asserts that “Plaintiff had a full opportunity to

23

respond to this evidence in her reply brief,” but it must be referring to the

24

ORDER ON MOTION FOR CLASS CERTIFICATION - 5

1

evidence that CCS attached to its response brief because Plaintiff’s reply was filed

2

on March 9, almost three weeks before CCS actually produced the evidence in

3

accordance with the order.

4

The Court does not intend to strike the portions of the declaration

5

describing CCS’s business practices because they are not covered by the

6

discovery order and are within the scope of the COO’s personal knowledge.

7

Plaintiff’s failure to demonstrate any prejudice is also a factor. Additionally, the

8

Court’s determination to deny Plaintiff’s motion to certify is not based on this

9

portion of the evidence – it is harmless error on CCS’s part, at worst.

10

•

Exhibit D and Paragraph 17: these are the templates of the different notices that

11

CCS sends out, from which CCS argues that the variety of notices defeats

12

commonality for purposes of certification. Again, there is no demonstration of

13

prejudice – Plaintiff responds to the existence of the different notices in her reply

14

by arguing that they all have similarly deceptive elements, and lays in out detail

15

what those common elements are. And, as indicated in the paragraph above, the

16

Court does not find that the evidence was produced in an untimely fashion or in

17

violation of the Court’s order.

18

•

Paragraph 11: the COO discusses the various different reasons that drivers

19

choose to pay in response to the notices (e.g., they actually acknowledge fault or

20

do not want their licenses suspended for driving uninsured or do not want their

21

insurance companies notified) and Plaintiff moves to strike as hearsay (with no

22

further analysis). As CCS points out, the evidence is not being offered for the

23

truth of the matter asserted (e.g., that the driver actually was at fault), but simply

24

ORDER ON MOTION FOR CLASS CERTIFICATION - 6

1

to illustrate that there are a variety of reasons that people chose to pay the

2

subrogation claim that are dissimilar to Plaintiff’s and that it would require a case-

3

by-case analysis to determine whether or not the notices had had a “deceptive”

4

effect on the recipients.
For all the reasons cited above, the Court DENIES this portion of the motion to strike.

5
6

The recordings of phone calls with Plaintiff and the deposition testimony re: the calls

7

Plaintiff argues that, with the exception of one call (where the transcript includes a

8

preliminary warning that the call was being recorded) there is no indication in any of the

9

remaining transcripts that Plaintiff was aware that she was being recorded and/or gave her

10

consent thereto, a violation of RCW 9.73.030. Such recordings are inadmissible, as is any

11

evidence (e.g., Plaintiff’s deposition testimony regarding the conversations) derived from the

12

recordings. State v. Slemmer, 48 Wn.App. 48, 51 (1987) overruled on other grounds in State v.

13

Frohs, 83 Wn.App. 803 (1996).

14

CCS argues that Washington law does not apply – the calls originated from (and were

15

recorded in) New Hampshire 2, where there is no requirement that an announcement that the call

16

is being recorded be reflected in the transcript of the call (merely that “the surrounding

17

circumstances demonstrate that the consenting party knew” that the call was being recorded;

18

State v. Locke, 144 N.H. 348, 355 (1999)).

19

In the Court’s estimation, both parties are wide of the mark on this issue. In the first

20

place, neither makes any reference to the Erie doctrine, which holds that federal courts sitting in

21

diversity apply state substantive law and federal procedural law. Erie R.R. v. Tompkins, 304

22
23
24

2

State v. Fowler, 157 Wn.2d 387, 395 (2006): “[T]he test for whether a recording of a conversation or
communication is lawful is determined under the laws of the place of the recording.”

ORDER ON MOTION FOR CLASS CERTIFICATION - 7

1

U.S. 64, 78 (1938). At first glance, this request to exclude evidence certainly appears to be a

2

procedural matter, and thus subject to federal rules under Erie. However, there is also federal

3

case law (concerning a California wiretapping statute) which has found such a law to be

4

substantive in nature and thus bound to be applied even in federal court. See Feldman v. Allstate

5

Ins. Co., 332 F.3d 660, 667 (9th Cir. 2003). Although it is not on all fours with the facts of this

6

case, it is clearly relevant to the analysis and application of similar statutes in other cases. But

7

the Court finds that the issue has not been adequately briefed herein.

8

In any event, the Court indicates that (having reviewed the evidence sought to be

9

excluded) nothing in Plaintiff’s recorded telephone conversations nor the deposition testimony

10

based on those conversations played a decisive role in the Court’s ultimate determination of the

11

substantive issues involved in this motion. The operative information regarding Plaintiff’s

12

behavior (primarily the fact that she contacted her current counsel, by her own estimation, five

13

times before receiving a notice from Defendant CCS) is contained in deposition testimony which

14

Plaintiff has not sought to be excluded. (See Dkt. No. 46, Ex. A at 34:1-5, 44:7-10.)

15

Expert opinion of Dr. Rauschenberger

16

Plaintiff wants the Court to essentially conduct a Daubert analysis of Defendant’s

17

“human factors expert” (offered as an expert in “consumer behavior,” his opinion is that there is

18

no uniform response to notices of this type, necessitating a case-by-case analysis of how any

19

given recipient perceived the message; Dkt. No. 47) and strike it as unqualified. Plaintiff

20

criticizes Dr. Rauschenberger’s lack of qualifications (none of his experience appears related to

21

debt collection notices) and the unreliability of his statistical approach (his use of a self-selecting

22

web survey system, SurveyMonkey.com; his failure to show how the survey population

23

compares to the proposed class; the extremely low percentage of respondents – 2% – who had

24

ORDER ON MOTION FOR CLASS CERTIFICATION - 8

1

received subrogation notices related to auto accidents; and the fact that none of the respondents

2

were shown any of the debt collection notices sent out by CCS).

3

As Defendant points out, however, “[d]isputes as to the strength of [an expert’s]

4

credentials, faults in his use of [a particular] methodology, or lack of textual authority for his

5

opinion, go to the weight, not the admissibility…” Kennedy v. Collagen Corp., 161 F.3d 1226,

6

1231 (9th Cir. 1998)(quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2nd Cir. 1995).

7

The Court indicates that, while little weight was assigned to Dr. Rauschenberger’s analysis and

8

opinions and they were not a significant factor in the decision to deny, the Court will not strike

9

the declaration.

10
11

Class certification

12

The Court will engage in the traditional two-part inquiry. First, Plaintiff must satisfy the

13

FRCP 23(a) requirements: (1) numerosity, (2) typicality, (3) commonality, and (4) adequacy.

14

Once those are established, Plaintiff must then demonstrate that at least one of the 23(b)

15

requirements for certification has been met. It is Plaintiff’s burden to establish that all the

16

certification requirements have been satisfied. Comcast v. Behrend, 569 U.S. 27, 33 (2013).

17

FRCP 23(a)(2): Commonality

18

Satisfaction of this element simply requires a “single significant question of law or fact.”

19

Abdullah v. U.S. Sec. Assoc’s, Inc., 731 F.3d 952, 957 (9th Cir. 2013). Plaintiff lists the

20

following issues as common questions of law:
•
•

21
22
23
24

Were CCS’s collection notices deceptive or unfair?
Were CCS’s collection notices violative of Panag? 3

3

Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27 (2009), a landmark case finding that a collection services
“subrogation claim” notices were deceptive under the CPA, that the notices constituted “trade or commerce” under
the CPA, and that the class (uninsured motorist-recipients of the notices) had standing to sue under the CPA.

ORDER ON MOTION FOR CLASS CERTIFICATION - 9

•
•
•

1
2
3

Did CCS’s practices occur in “trade or commerce”?
Did CCS’s practices affect the public interest? 4
Whether the amounts sought by Progressive (as reflected in the “Amount Due” stated in
the collection notice) actually equaled the “liability determination” made by the insurance
company?

4
Both CCS and Progressive attack the existence of “common” questions of law and fact on
5
the basis of the “causation” element of the CPA, and both for the same reason; namely, that CCS
6
employed a variety of notices and phone call scripts with the persons whom they targeted for
7
collection. The permutations and combinations of different written and oral communications,
8
Defendants argue, make the determination of causation an individualized one.
9
The Court is forced to agree: given that CCS’s communication with the potential class
10
members is not limited to a single phone call, or a single written communication, but is instead
11
spread out over a series of communications represented by a variety of different letters and a
12
plethora of phone scripts with varying responses, the determination of whether (and at what
13
point, and how) an individual member was deceived cannot be reduced to a common question of
14
fact but will depend instead on case-by-case analyses incompatible with a class action
15
mechanism.
16
Furthermore, the Court notes that the inquiry would not be limited simply to the
17
deceptive nature of the collection notices. Plaintiff herself was contacted by phone prior to
18
receiving any notice from CCS. (Shapiro Decl. at ¶ 13, Ex. B at 3.) Any consideration of
19
whether the practices of CCS were deceptive would have to include an analysis of the phone
20
conversations as well; the Court does not even need to see the evidence of Defendant’s various
21
telephone scripts to know that such an undertaking would require an individualized analysis (not
22
23
24

4

These last two questions (“trade or commerce” and “public interest” have already been answered in the affirmative
in Panag, and Defs do not challenge certification on these bases.

ORDER ON MOTION FOR CLASS CERTIFICATION - 10

1

to mention the complications created by the evidentiary issues of the admissibility of the

2

transcripts of the phone calls).

3

FRCP 23(a)(3): Typicality

4

Plaintiff lists the factors supporting a finding of typicality as:

5

1. Conduct by Defendants which was not unique to Plaintiff and was experienced by the
class;
2. Plaintiff suffered an injury as a result of this conduct which is
3. Same or similar to the injuries of the members of the class.

6
7
8

Agne v. Papa John’s Int’l, 286 F.R.D. 559, 568 (W.D.Wa. 2012).
Although “[t]ypicality refers to the nature of the claim or defense of the class

9
10

representative, and not to the specific facts from which it arose or the relief sought" (Hanon v.

11

Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)(citation omitted)), a motion for

12

certification should not be granted “where a putative class representative is subject to unique

13

defenses which threaten to become the focus of the litigation." Id. (quoting Gary Plastic

14

Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir.

15

1990), cert. denied, 112 L. Ed. 2d 667, 111 S. Ct. 675 (1991)). 5 It is the rule in the Ninth Circuit

16

that a named plaintiff's motion for class certification should not be granted if "there is a danger

17

that absent class members will suffer if their representative is preoccupied with defenses unique

18

to it." Id. (citing Gary Plastic, 903 F.2d at 180.).

19
20
21
22
23

5

See also J.H. Cohn & Co. v. American Appraisal Assoc., Inc., 628 F.2d 994, 998-99 (7th Cir. 1980); Hoexter v.
Simmons, 140 F.R.D. 416, 422-23 (D. Ariz. 1991) (plaintiffs claims atypical of class because unique defense could
be asserted against them); Rolex Employees Retirement Trust v. Mentor Graphics Corp., 136 F.R.D. 658, 664 (D.
Or. 1991)("The certification of a class is questionable where it is predictable that a major focus of the litigation will
be on an arguable defense unique to the named plaintiff or to a subclass.").

24

ORDER ON MOTION FOR CLASS CERTIFICATION - 11

1

The Court has never seen a clearer case of “subject to unique defenses” in a proposed

2

class action. Plaintiff’s behavior – first in consulting with an attorney who specializes in class

3

actions related to subrogation claims by collection agencies prior to receving any notice from

4

Defendant, then in contacting CCS after it had decided to drop the claim and volunteering to pay

5

the requested amount (despite the fact that she contested liability), and finally in suing the other

6

driver for all her losses except the money she paid to CCS – seriously calls into question whether

7

she was deceived at all by the notices she received from CCS, and whether she either believed

8

she owed the money or was compelled by some circumstance other than liability to remit the

9

requested sum.

10

Defendants argue that the small claims judgment raises issues of res judicata and/or

11

collateral estoppel. Plaintiff disputes that, on the ground that a CPA/unjust enrichment case

12

against a collection agency and an insurance company is not subject to a res judicata/collateral

13

estoppel defense on the basis of a small claims negligence action against the other driver. The

14

Court is inclined to agree with Plaintiff but the issue is neither fully briefed nor necessary for a

15

disposition of this certification motion and the Court makes no finding either way.

16

The Court does find it beyond question, however, that the possible defenses listed above

17

are substantive and that they are defenses to which all the other class members would not be

18

subject. This alone compels the Court to deny Plaintiff’s request to certify a class.

19

FRCP 23(a)(4): Adequacy

20

CCS attacks Plaintiff’s adequacy as a class representative on several grounds, two of

21

which are fairly weak, one of which is dispositively strong.

22

First, Defendant points out that Plaintiff’s counsel is basically underwriting the

23

prosecution of this lawsuit; i.e., that Plaintiff does not have sufficient funds to hire counsel, and

24

ORDER ON MOTION FOR CLASS CERTIFICATION - 12

1

her attorney will be paid (if at all) out of the proceeds of a successful class action. The agency

2

points to several cases disapproving of this practice, but they are easily dismissed as being

3

outdated and not in line with current thinking on this topic. As Plaintiff points out, the Rules of

4

Professional Conduct (“RPCs”) now permit attorneys to advance the costs of litigation to a client

5

with the understanding that they will be reimbursed out of the recovery. RPC 1.8(e). The

6

financial resources of Plaintiff are considered irrelevant in analyzing their adequacy as a class

7

representative. 1 NEWBERG ON CLASS ACTIONS § 3:69; In re Intel Corp. Microprocessor

8

Antitrust Litigation, 526 F.Supp.2d 461, 464 (D. Del. 2007).

9

CCS also argues that Plaintiff lacks credibility, based on changes that she made to her

10

deposition testimony (primarily regarding which attorney – her former employer or Mr. Ide – she

11

talked to when). Plaintiff rebuts this accusation by pointing out that the events she was being

12

asked to recall were 3.5 years prior to her deposition and that the corrections were made after she

13

had had an opportunity to review her attorneys’ records and refresh her recollection. The Court

14

does not find that these corrections to Plaintiff’s recollections rise to a level that calls her

15

credibility into question.

16

However, the same “unique defenses” issues which render her atypical also call for a

17

ruling that she is not an adequate class representative. Whatever interests she has in common

18

with the remainder of the class are in danger of being overwhelmed by the attention she and her

19

counsel will need to put into mounting a defense against the decidedly unique circumstances

20

under which she initiated this lawsuit.

21

FRCP 23(b)(3): Predominance and superiority

22

FRCP 23(b)(3) requires a showing that

23

the questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class members predominate over any

24

ORDER ON MOTION FOR CLASS CERTIFICATION - 13

1

questions affecting only individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

Defendants make a couple of “insufficient class definition” arguments that seem to go
more to the “superiority” portion of 23(b)(3) than the “predominance” requirement. While they
are not invalid arguments, they are not fatal to certification in the sense that the wording of the
definition could be revised to resolve the problems.
CCS asserts that the phrase (found in the Class and Subclass definitions) “[a]ll persons in
the State of Washington” is too vague because it fails to mention when the person had to have
been “in the State of Washington.” Again, this is fairly easy problem to remedy and hardly fatal
to certification.
Progressive makes a stronger argument when it points out that the definitions only
require a class member to have “received a debt collection-type notice” – the definitions say
nothing about whether the recipient read and/or relied on the notice before remitting payment.
Again, this is a issue which can be remedied through rewording, but it does point to problems of
vagueness which could lead to massive problems of proof should a class with this definition be
certified.
The predominance requirement is much more demanding than the commonality
requirement. Amchen Prods. v. Windsor, 521 U.S. 591, 623-24 (1997). However, there is still
no necessity of unanimity of the common questions, simply that the common questions outweigh
individual issues. McCall v. Drive Financial Services, L.P., 236 F.R.D. 246, 254 (E.D.Pa. 2006).
CCS makes two related arguments that individual circumstances will predominate over
common questions in the class action litigation which Plaintiff proposes.
First (as discussed above), it argues that its subrogation claim practice involves a variety
of different notices and phone call scripts that are used in such a variety of permutations and

ORDER ON MOTION FOR CLASS CERTIFICATION - 14

1

combinations that it is not possible to reduce the proximate cause analysis to a single kind of

2

communication with a uniform content. In other words, deciding whether a class member relied

3

on a deceptive or unfair communication from CCS will require an individual determination of

4

the content of the notices and phone calls specific to each class member.
Plaintiff first response to this argument is her motion to strike the evidence of the

5
6

different notices and scripts as not having been timely produced in response to your earlier

7

discovery order. The Court has already denied that request.

8
9
10
11
12
13

Alternatively, Plaintiff argues that the fact that there are different forms of the collection
notice does not defeat certification; that the notices have common elements which produce the
same overall deceptive effect. She points to the fact that all the notices contain:
•
•
•
•
•

14
15
16
17
18
19
20
21
22

•
•

The phrase “subrogation claim”
A file number (not a claim number)
An indication that the recipient can “pay” by check or credit card
The words “COLLECTION” in all caps
An indication that the amount due has been “placed for recovery” based on the insurance
company’s “investigation”
A claim that the recipient is “financially responsible for the debt”
An indication that failure to respond will result in “further efforts” to recover the amount

Many of these features (e.g., whether the letter contains a “file number” or a “claim number,” the
indication that a non-response will result in “further efforts”) do not strike the Court as
sufficiently substantive or determinative of a deceptive impact to be considered as common
questions which will predominate in the litigation. But in the final analysis the same issues
which lead the Court to conclude that the issues of fact and law could not be reduced to a
common, class-wide series of determinations also force the conclusion that questions of law and
fact common to the class would not predominate over questions affecting individual members.

23
24

ORDER ON MOTION FOR CLASS CERTIFICATION - 15

1

CCS makes a further case for the predominance of individual issues over common ones

2

with its argument that, because different recipients pay the amount requested for different

3

reasons (e.g., the recipient acknowledges he/she was at fault, the recipient does not want a

4

license suspension because they are uninsured, the recipient does not want his/her insurance

5

company notified of the accident; see Dkt. No. 48, Decl. of Shapiro ¶ 11), a determination of

6

whether the class members relied on the allegedly deceptive features of the notice will require an

7

individual inquiry.

8

Plaintiff’s first objection to this assertion is evidentiary: the only evidence of this

9

contention of “different payment reasons for different recipients” is the hearsay declaration of

10

the COO of CCS. The Court has already ruled supra that this statement is not offered for the

11

truth of the matter asserted and will not be stricken on hearsay grounds.

12

Additionally, Plaintiff contends that the focus of the “but for” causation analysis is solely

13

on Defendants’ conduct and the fact that, had these collection notices not been sent out, no one

14

would have voluntarily paid the amounts requested. This is an overly simplistic analysis.

15

Plaintiff’s “but for” causation argument breaks down for those percentage of the

16

recipients who actually were at fault in the accident. Plaintiff says that it is speculative to

17

assume, in the absence of any admissible testimonial evidence, what the motives of the paying

18

recipients/potential class members are. The Court does not find it speculative to assert that,

19

among a potential class of 4600+ persons, a certain percentage of that group will actually have

20

been at fault in their accident. Which percentage is unimportant – the operative and fatal fact is

21

that it requires a case-by-case analysis to determine which members of the class fall into that

22

category.

23
24

ORDER ON MOTION FOR CLASS CERTIFICATION - 16

1

On the question of “whether a plaintiff who pays a valid debt in response to unlawful

2

collection activities is injured in the amount paid,” Judge Robart of this district found that there

3

was no Washington State CPA case authority. A survey of other jurisdictions who have

4

addressed a similar question led him to conclude: “[P]laintiffs are not injured in the amount

5

collected when the plaintiff owed the debt even where the debt collector violated state law in

6

doing so.” Moritz v. Daniel N. Gordon, P.C., 895 F.Supp.2d 1097, 1117 (W.D.Wa. 2012). See

7

Gray v. Suttell & Assoc’s, 2012 WL 1067962 at *6 (E.D.Wash. 2012)(“To the extent that Mr.

8

Scott alleges a [CPA] injury as a result of the garnished amount based solely on the underlying

9

debt [which he acknowledged he owed] and interest thereon, Mr. Scott fails to allege an injury to

10

business or property.”); Flores v. The Rawlings Co., LLC, 117 Haw. 153, 170 (2008); Camacho

11

v. Auto Club of S. Cal., 142 Cal.App.4th 1394, 1405 (2006).

12

Since this is the current state of the law, it would necessitate an inquiry into the

13

circumstances of every class member’s case to ascertain whether he/she acknowledged fault in

14

his/her particular accident, thus rendering Defendants immune from CPA/unjust enrichment

15

liability. Such an inquiry would surely predominate over any common questions among the

16

class members.

17
18

Conclusion
There are a number of factors dictating the Court’s conclusion that this matter is not

19

suitable for certification as a class action. The fact that individualized determinations on

20

questions of deceptiveness and motivations for paying the requested amount will far outnumber

21

questions common to the class as a whole defeats Plaintiff’s motion on both the issues of

22

commonality and predominance. Additionally, Plaintiff’s atypicality and inadequacy as a class

23
24

ORDER ON MOTION FOR CLASS CERTIFICATION - 17

1

representative based on the unusual circumstances of her individual case is further fatal to her

2

request.

3

The motion to certify a class in this matter is DENIED.

4
5
6

The clerk is ordered to provide copies of this order to all counsel.

7

Dated June 25, 2018.

A

8
9

The Honorable Marsha J. Pechman
United States Senior District Court Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

ORDER ON MOTION FOR CLASS CERTIFICATION - 18