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ordering that un-cashed settlement funds would be paid as a cy pres award to Neighborhood Economic Development Advocacy Project (NEDAP) in New York City and the Empire Justice Center in Albany, New York
Summary of this case from Zimmerman v. Portfolio Recovery Assocs., LLCOpinion
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Brian L. Bromberg, Bromberg Law Office, P.C., New York City, Lance A. Raphael and Stacy M. Bardo, Consumer Advocacy Center, P.C., Chicago, IL, for Plaintiff.
Douglas Garrett Tischler, Rivkin Radler LLP, Uniondale, NY, for Defendants.
MEMORANDUM AND ORDER
POHORELSKY, United States Magistrate Judge.
The plaintiff and defendants (hereafter " the parties" ) have filed a joint motion seeking preliminary approval of a proposed class action settlement in this case concerning alleged violations of the Fair Debt Collection Practices Act (" FDCPA" ). Specifically, the parties seek an order (1) certifying the proposed class for settlement purposes (hereafter " the settlement class" ), (2) preliminarily approving the proposed terms of the settlement agreement, (3) directing and sending notice to the certified settlement class, and (4) setting dates for opt-outs, objections, and a Rule 23 fairness hearing. For the reasons set forth below, the motion is GRANTED.
The parties have consented to this court's jurisdiction for all purposes including entry of judgment pursuant to 28 U.S.C. § 636(c). ( See Docket No. 16.)
BACKGROUND
The unlawful conduct at issue involves the alleged practice by defendant law firm, Davis Law Associates, of sending out collection letters which do not conform with FDCPA requirements, see generally 15 U.S.C § 1692 et seq. The complaint states two claims under the FDCPA, one under section 1692e and the other under section 1692g. The section 1692e claim alleges that Davis Law, in sending out the collection letters seeking the repayment of nonexistent debts, failed to conduct " adequate attorney review" as required under the FDCPA. (Compl.¶ ¶ 44-49.) The section 1692g claim attacks the sufficiency of the collection letter itself, contending that Davis Law had failed to include a proper " validation notice" in its collection letters, which, if properly drafted, would have informed recipients that disputes as to the validity of the debt would have to be " in writing." (Compl.¶ ¶ 38-43.)
Section 1692e provides in pertinent part,
Section 1692g provides in pertinent part,
DISCUSSION
I. Court Approval of Class Action Settlements-Generally
Rule 23(e) governs the settlement of class actions. The Rule, as amended in 2003, requires that " the court must approve any settlement, voluntary dismissal, or compromise of the claims ... of a certified class." Fed.R.Civ.P. 23(e) (emphasis added). The court-approval requirement, as the advisory committee explained, is intended " to strengthen the process of reviewing proposed class-action settlements." Fed.R.Civ.P. 23(e) advisory committee note 2003 amendments. The Committee noted in particular that while " [s]ettlement may be a desirable means of resolving a class action ... court review and approval are essential to assure adequate representation of class members who have not participated in shaping the settlement." Id.
II. Certification of Settlement Class- Rule 23(a) and (b)
Before reaching the merits of the proposed settlement, however, the court must first ensure that the settlement class, as defined by the parties, is certifiable under the standards of Rule 23(a) and (b). As the Second Circuit recently stated, " Before certification is proper for any purpose-settlement, litigation, or otherwise-a court must ensure that the requirements of Rule 23(a) and (b) have been met." Denney v. Deutsche Bank AG, 443 F.3d 253, 270 (2d Cir.2006) (concluding in part that " the District Court conducted a Rule 23(a) and (b) analysis that was properly independent of its Rule 23(e) fairness review." ). See also Reade-Alvarez v. Eltman, Eltman, & Cooper, P.C., 237 F.R.D. 26, 31 (E.D.N.Y.2006) ( " Certification of a class for settlement purposes only is permissible and appropriate, provided [the] standards [under Rule 23(a) and (b)] are met." ) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 619-21, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). The Denney court further cautioned that " [t]hese requirements should not be watered down by virtue of the fact that the settlement is fair or equitable." Denney, 443 F.3d at 270. One must keep in mind, however, that courts in this circuit employ a " ‘ liberal rather than restrictive construction’ of Rule 23, ‘ adopt[ing] a standard of flexibility’ in deciding whether to grant certification." Reade-Alvarez, 237 F.R.D. at 31 (quoting Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir.1997)) (additional citation omitted).
The party seeking class certification bears the burden of establishing the existence of all four Rule 23(a) requirements, often referred to as the criteria of " numerosity, commonality, typicality, and adequacy." See Fed.R.Civ.P. 23(a); Amchem, 521 U.S. at 613, 117 S.Ct. 2231. " In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3)." Amchem, 521 U.S. at 614, 117 S.Ct. 2231.
The named plaintiff seeks to assert her FDCPA claims, which rest upon the legality of form collection letters allegedly sent by the defendants, on an individual and class-wide basis. The class members consist generally of those individuals who received a collection letter substantially similar to that received by the named plaintiff, and specifically of
All persons who, according to [the defendants'] records: (a) have mailing addresses within New York State; and (b) between September 23, 2004 and September 22, 2005; (c) were sent a collection letter bearing Davis Law Associates' letterhead in a form materially identical or substantially similar to the letter sent to [the named plaintiff, Ms. Bourlas], attached as Exhibit " A" to the Complaint; and (d) which was not returned by the postal service as undelivered.
(Joint Settlement Agreement and Release ¶ 6, attached to Joint Mot. as Ex. A.) The court addresses the propriety of certification with respect to these allegations under Rule 23(a) and (b) in turn.
A. Rule 23(a) Factors
The Supreme Court, in Amchem, set forth concisely the parameters of the Rule 23(a) inquiry:
The Rule provides that,
Rule 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a " class [so large] that joinder of all members is impracticable" ); (2) commonality (" questions of law or fact common to the class" ); (3) typicality (named parties' claims or defenses " are typical ... of the class" ); and (4) adequacy of representation (representatives " will fairly and adequately protect the interests of the class" ).
521 U.S. at 613, 117 S.Ct. 2231.
1. Rule 23(a)(1) -Numerosity
Turning first to the numerosity requirement, the court focuses on whether the " num[ber] of injured persons makes joinder of all class members ‘ impracticable.’ " Edge v. C. Tech Collections, Inc., 203 F.R.D. 85, 89 (E.D.N.Y.2001) (citing Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993)). " Impracticability" in this context means " ‘ difficulty or inconvenience of joinder’ " rather than " ‘ impossibility of joinder.’ " In re Indep. Energy Holdings, 210 F.R.D. 476, 479 (S.D.N.Y.2002) (citation omitted). Courts in this circuit generally " find a class sufficiently numerous when it comprises forty or more members." Id. (citing Robidoux, 987 F.2d at 936). While " a precise quantification of [the] class, is not required," " some evidence ... or [a] reasonabl[e] estimate [of] the number of class members," must be provided. Edge, 203 F.R.D. at 89 (quoting Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y.2000)) (internal quotations and additional citation omitted). Finally, in determining numerosity, the court may " make some common sense assumptions" and " rely on reasonable inferences drawn from the available facts." Velez v. Majik Cleaning Serv., Inc., No. 03-Civ-8698, 2005 WL 106895, at *4 (S.D.N.Y. Jan.19, 2005) (footnote, citation, and internal quotations omitted).
The numerosity requirement is clearly satisfied here. The proposed class, as estimated by the parties in their joint motion, consists of 2,834 members. (Joint Mot. ¶ 4(e).) This number is based on the records kept by the defendants from previous mailings of collection letters. (Joint Mot. Ex. A ¶ 2.) The facts and circumstances therefore warrant a finding of numerosity under Rule 23(a)(1).
2. Rule 23(a)(2) -Commonality
Commonality in the class certification context refers to the need for " questions of law or fact common to the class," Fed.R.Civ.P. 23(a)(2); see Reade-Alvarez, 237 F.R.D. at 32 (" Commonality requires that class members' claims share a common question of law or fact." ) (citing Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir.2001)), and may be found when " ‘ injuries derive from a unitary course of conduct by a single system.’ " Reade-Alvarez, 237 F.R.D. at 32 (quoting Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir.1997)). Rule 23(a)(2), however, " does not require that all questions of law or fact raised be common," D'Alauro v. GC Services Ltd. P'ship, 168 F.R.D. 451, 456 (E.D.N.Y.1996) (citation omitted), and a sufficient showing is possible even where " a single common question" exists, Velez, 2005 WL 106895, at *2 (footnote and citation omitted).
Here, the proposed class members' claims all share a common issue regarding the receipt of collection letters which were in alleged nonconformance with FDCPA requirements. ( See Compl. ¶ 31.) As Judge Spatt has observed, " In cases where FDCPA plaintiffs have received similar debt collection letters from the defendants' mailing as the basis of the lawsuit, courts have found common questions of law or fact sufficient to certify the class." D'Alauro, 168 F.R.D. at 456 (collecting cases); see also Reade-Alvarez, 237 F.R.D. at 32 (finding commonality where " [t]he claims all allege violations of the Fair Debt Collection Practices Act," based on allegations that defendants sent illicit collection letters to plaintiffs). Accordingly, the commonality requirement under Rule 23(a)(2) is satisfied.
3. Rule 23(a)(3) -Typicality
A sufficient showing of Rule 23(a)(3) " typicality" " requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." Reade-Alvarez, 237 F.R.D. at 32 (quoting Robinson, 267 F.3d at 155). Put another way, " when the same unlawful conduct was directed at both the named plaintiff and the class to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims." D'Alauro, 168 F.R.D. at 456-57 (internal quotations and citations omitted). The purpose of this requirement is to " ensure[ ] that maintenance of a class action is economical and [that] the named plaintiff's claims and the class claims are so interrelated that the interest of the class members will be fairly and adequately protected in their absence." In re Risk Mgmt. Alternatives, Inc., Fair Debt Collection Practices Act Litig. ( In re Risk Mgmt. Alternatives Litig. ), 208 F.R.D. 493, 505 (S.D.N.Y.2002) (citing Marisol A., 126 F.3d at 376) (internal quotation and citation omitted).
The claims of the class representative, Ms. Bourlas, are based on a pattern of allegedly unlawful conduct substantially similar to the acts underlying the claims of the proposed class members. Stripped to its essentials, the claims of both the class representative and the proposed class members rest upon allegations that they were allegedly sent virtually identical collection letters from the defendants which did not conform to FDCPA requirements. The successful prosecution of both sets of claims would therefore require the named plaintiff make legal arguments similar to those of the proposed class members, i.e., that relief is warranted under FDCPA provisions governing collection letters. This satisfies the court " that the interest of the class members will be adequately protected in their absence," In re Risk Mgmt. Alternatives Litig., 208 F.R.D. at 505 (citation omitted). Accordingly, Rule 23(a)(3)'s typicality requirement is satisfied.
4. Rule 23(a)(4) -Adequacy of Representation
Finally, the parties seeking class certification must show that " the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). Meeting this so-called " adequacy" requirement requires the establishment of two elements: " (1) the representative plaintiffs' attorneys must be qualified, experienced, and generally able to conduct the litigation, and (2) the plaintiffs' interests must not be antagonistic to those of the remainder of the class." Reade-Alvarez, 237 F.R.D. at 32 (citing In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir.1992)). The first element is met here. While counsel for the plaintiff, Mr. Brian L. Bromberg, has not supplied this court with a profile attesting to his experience in class action litigation, a quick query on Westlaw has uncovered numerous other FDCPA class action cases which Mr. Bromberg has prosecuted in the past. See, e.g., Cinelli v. MCS Claim Services, Inc., 236 F.R.D. 118, 119-20 (E.D.N.Y.2006) (Boyle, Mag. J.); Larsen v. JBC Legal Group, P.C., 235 F.R.D. 191 (E.D.N.Y.2006) (Boyle, Mag. J.); Mailloux v. Arrow Fin. Services, LLC, 204 F.R.D. 38 (E.D.N.Y.2001) (Trager, J.). The court is therefore satisfied that Mr. Bromberg is qualified, experienced, and generally able to conduct the present action.
As to the second element, the court is not aware of any antagonistic interests harbored by the plaintiff toward the proposed class members. Nor have the parties pointed to the existence of any conflicting interests. In any event, the interests of the plaintiff are sufficiently aligned with those of the proposed class members to qualify for certification. Litigation of the plaintiff's claim will inevitably involve rather straightforward proof regarding the content of the collection letter she had received from the defendants and whether the letter was the product of illicit activity by the defendants, allegations which are also germane to the prosecution of the proposed class members' claims. Therefore, little, if any, risk exists that the plaintiff would not vigorously pursue the prosecution of the class action in the absence of the proposed class members. Accordingly, Rule 23(a)(4)'s adequacy requirement is satisfied.
The court notes that conflicting interests which would justify denial of class certification is not easily shown. As one court has observed, " in order to warrant denial of class certification, it must be shown that any asserted ‘ conflict’ is so palpable as to outweigh the substantial interest of every member in proceeding with the litigation." In re Nasdaq Market-Makers Antitrust Litig. ( In re Nasdaq Antitrust Litig. ), 169 F.R.D. 493, 514-15 (S.D.N.Y.1996).
B. Rule 23(b) -Class Actions Maintainable
As all Rule 23(a) requirements are met, certification now hinges upon whether the class action is maintainable under Rule 23(b)(1), (2), or (3). Amchem, 521 U.S. at 614, 117 S.Ct. 2231. The parties propose certification of the class action under subsection (b)(3) ( see Joint Mot. ¶ 3(a)(e)), and the court agrees certification under that subdivision is proper here.
Rule 23(b)(3) requires a showing " that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fair and efficient adjudication of the controversy," Fed.R.Civ.P. 23(b)(3). The " matters pertinent" to the court's Rule 23(b)(3) analysis include,
(A) [T]he interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
The Rule 23(b)(3) test is, on one hand, less arduous in the settlement context, since the Supreme Court has recognized that where a settlement class is involved, " a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed.R.Civ.P. 23(b)(3)(D), for the proposal is that there be no trial." Amchem, 521 U.S. at 620, 117 S.Ct. 2231. Yet, the Court left no doubt in Amchem that " other specifications of the Rule-those designed to protect the absentees by blocking unwarranted or overbroad class definitions-demand undiluted, even heightened, attention in the settlement context." Accord In re Initial Public Offering Securities Litig. ( In re IPO Litig. ), 226 F.R.D. 186, 190 (S.D.N.Y.2005); see also Denney, 443 F.3d at 270 (" [T]he Rule 23(e) inquiry into the fairness of a settlement cannot supplant the inquiries under Rules 23(a) and (b) regarding whether the requirements for class certification have been met." ) (citing Amchem, 521 U.S. at 616-21, 117 S.Ct. 2231).
In carrying out its Rule 23(b)(3) analysis, the court recognizes that substantial authority supports certification of FDCPA class actions under subsection (b)(3). See, e.g., McCall v. Drive Fin. Servs., L.P., 236 F.R.D. 246, 253-54 (E.D.Pa.2006) (finding Rule 23(b)(3) applicable for class certification in FDCPA case involving collection letters); Reade-Alvarez, 237 F.R.D. at 31 (same); Gross v. Washington Mut. Bank, No. 02-CV-4135, 2006 WL 318814, at *3 (E.D.N.Y. Feb.9, 2006) (Levy, Mag. J.) (same); Bonett v. Educ. Debt Servs., Inc., No. 01-6528, 2003 WL 21658267, at *4 (E.D.Pa. May 9, 2003) (same); Mailloux, 204 F.R.D. at 42-43 (same); D'Alauro, 168 F.R.D. at 458-59 (same).
The court turns first to Rule 23(b)(3)'s predominance requirement. In doing so, the court notes initially that Rule 23(b)(3) " [p]redominance is a test readily met in certain cases alleging consumer or securities fraud ...." Amchem, 521 U.S. at 625, 117 S.Ct. 2231 (citations omitted). Furthermore, " it has been recognized in this district that ‘ common questions of law and fact surrounding the contents and mailing of [standardized form collection] letters predominate over individual issues.’ " See Mailloux, 204 F.R.D. at 43 (quoting Harrison v. Great Springwaters of Am., Inc., No. 96-CV-5110, 1997 WL 469996, at *9 (E.D.N.Y. June 18, 1997) (additional citation omitted)). For further guidance in applying the predominance test, the court looks to the Second Circuit's opinion in Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir.2002):
" The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." [ Amchem, 521 U.S. at 623, 117 S.Ct. at 2249-50]. It is a more demanding criterion than the commonality inquiry under Rule 23(a). [ Id. at 623-24, 117 S.Ct. at 2249-50]. Class-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof. [ In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 132 (2d Cir.2001)].
There is little doubt that resolution of the key factual and legal issue here-specifically, whether the defendants violated the FDCPA by sending collection letters " en masse " without complying with FDCPA requirements-can be readily resolved through " generalized proof." This issue relating to the FDCPA also constitutes the crux of the proposed class action and is therefore " more substantial than the issues subject only to individualized proof," Moore, 306 F.3d at 1252 (citation omitted), if indeed any such individualized inquiries exist. Accordingly, Rule 23(b)(3)'s predominance requirement is satisfied.
As to Rule 23(b)(3)'s superiority requirement, the court finds that the proposed class action satisfies this element as well. As the court in D'Alauro observed, class actions are found to be the superior method of litigation " when the main objectives of Rule 23 are served," including " the efficient resolution of the claims or liabilities of many individuals in a single action, as well as the elimination of repetitious litigation and possibly inconsistent adjudications." 168 F.R.D. at 458 (citing Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). Allowing the present case to proceed as a class action would be an efficient means of resolving the claims at issue, where there exists more than 2,000 proposed class members, and each member possesses a claim based on form collection letters sent by the defendants in apparent violation of the FDCPA. Moreover, aggregating all possible FDCPA claims based on the form collection letters will eliminate the potential for " repetitious litigation" and " inconsistent adjudications" if the claims were brought separately, D'Alauro, 168 F.R.D. at 458 (citation omitted), and, which otherwise " might stand in the way of a beneficial comprehensive settlement," Reade-Alvarez, 237 F.R.D. at 32-33. Accordingly, Rule 23(b)(3)'s superiority requirement is satisfied as well.
The Rule 23(a) and (b)(3) requirements having been met, the following settlement class is hereby certified:
All persons who, according to [the defendants'] records: (a) have mailing addresses within New York State; and (b) between September 23, 2004 and September 22, 2005; (c) were sent a collection letter bearing Davis Law Associates' letterhead in a form materially identical or substantially similar to the letter sent to [the named plaintiff, Ms. Bourlas], attached as Exhibit " A" to the Complaint; and (d) which was not returned by the postal service as undelivered.
(Joint Settlement Agreement and Release ¶ 6, attached to Joint Mot. as Ex. A.) As a final matter, the court notes that the parties appear to seek certification of the proposed settlement class on a conditional basis, meaning that in the event the settlement is not consummated, the class would be automatically de-certified, The Second Circuit has expressly endorsed this approach to class certification, Denney, 443 F.3d at 270 (" [I]f the requirements of Rule 23(a) and (b) are met, certification may be granted, conditionally or unconditionally." ), and the proposed settlement class as delineated above is therefore certified on a conditional basis as well.
The Preliminary Approval Order proposed by the parties does not expressly provide for conditional class certification as was the case in Denney, but instead seeks a return to pre-settlement positions for the respective parties in the event settlement is not approved or consummated. Compare Denney, 443 F.3d at 269 (Preliminary Order there provided in pertinent part, " As agreed in the Stipulation of Settlement, if for any reason ... the Court declines to grant final approval of the Settlement, then the certification of the Class shall become null and void without further Court action." ) with (Proposed Prelim. Approval Order ¶ 2 (" If the above Settlement is not given final approval for any reason or in any way ... the Parties shall be restored to their respective positions in the Action as of the approximate dates prior to which the agreement-in-principle to settle the Action was reached. In such event, the terms and provisions of the Agreement shall have no further force and effect with respect to the Parties ...." ).) Nevertheless, the effect on class certification in the event of non-settlement under the present terms is no different than what would have resulted under the Denney provision. Conditional class certification is therefore warranted here.
III. Preliminary Approval of the Proposed Settlement-Legal Standard and Analysis
Having certified the settlement class, the court now turns to the merits of the proposed settlement. In carrying out this inquiry the court is guided by the Second Circuit's recognition that public policy favors the settlement of class actions. See Denney v. Jenkens Gilchrist, 230 F.R.D. 317, 328 (S.D.N.Y.) (" There is a ‘ strong judicial policy in favor of settlements, particularly in the class action context.’ ‘ The compromise of complex litigation is encouraged by the courts and favored by public policy.’ " ) (footnotes and citations omitted) aff'd in part and vacated in part, 443 F.3d 253 (2d Cir.2006). As Judge Weinstein has explained, " Class action suits readily lend themselves to compromise because of the difficulties of proof, the uncertainties of the outcome, and the typical length of the litigation. There is a strong public interest in quieting any litigation; this is ‘ particularly true in class actions.’ " In re Luxottica Group S.p.A. Sec. Litig. ( In re Luxottica Group Litig. ), 233 F.R.D. 306, 310 (E.D.N.Y.2006) (citations omitted).
That does not mean, however, that courts may " rubber stamp approval in favor of an independent evaluation.." Detroit v. Grinnell Corp., 495 F.2d 448, 462 (2d Cir.1974) abrogated on other grounds, Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir.2000). On the contrary, final approval of any proposed class settlement requires " careful balancing," In re Luxottica Group Litig., 233 F.R.D. at 310, of the three Rule 23(e) factors, " fair[ness], reasonable[ness], and adequa[cy]," Fed.R.Civ.P. 23(e)(1)(C).
As part of Rule 23(e)'s " fairness, reasonableness, and adequacy" inquiry the court must first determine whether the terms of the proposed settlement warrant " preliminary approval." See Fed.R.Civ.P. 23(e)(1)(B)-(C). Preliminary approval is a two-step process. See In re IPO Litig., 226 F.R.D. at 191; In re Nasdaq Antitrust Litig., 176 F.R.D. at 102 (citing Fed.R.Civ.P. 23(e); Manual for Complex Litigation (Third) § 30.41 (1995)). First, the court " make[s] a preliminary evaluation of the fairness of the settlement." In re Nasdaq Antitrust Litig., 176 F.R.D. at 102. Thus, " [w]here the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representative or segments of the class and falls within the reasonable range of approval, preliminary approval is granted." Id. (citing Manual for Complex Litigation (Third) § 30.41 (1995)); accord In re IPO Litig., 226 F.R.D. at 191. Upon preliminary approval, the court " must direct the preparation of notice of the certification of the settlement class, the proposed settlement and the date of the final fairness hearing." In re IPO Litig., 226 F.R.D. at 191. At the fairness hearing, " [c]lass members (and non-settling defendants whose rights may be affected by the proposed settlement) then have an opportunity to present their views of the proposed settlement, and the parties may present arguments and evidence for and against the terms, before the court makes a final determination as to whether the proposed settlement is ‘ fair reasonable, and adequate.’ " Id. (citing Manual for Complex Litigation (Fourth) § 21.632-21.635 (2004)).
Courts in this circuit generally apply a set of nine factors, also known as the Grinnell factors, when assessing the fairness of a proposed class settlement. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir.2005) (quoting Grinnell, 495 F.2d at 463). Significantly, some of these courts have applied the Grinnell factors at the preliminary approval stage. See, e.g., Reade-Alvarez, 237 F.R.D. at 32-33; Gross, 2006 WL 318814, at *4. Little is gained, however, in applying Grinnell at such an early stage since the proposed settlement has yet to be tested in a fairness hearing, after which the court would still be required to " make[ ] a final determination as to whether the proposed settlement is ‘ fair, reasonable and adequate.’ " In re IPO Litig., 226 F.R.D. at 191 (footnote and citation omitted). Furthermore, it is apparent that several of the Grinnell factors themselves were designed for application at a later stage in the class settlement approval process. The Reade-Alvarez court acknowledged as much when it stated that " [c]learly, some of [the Grinnell ] factors, particularly the reaction of the class to the settlement, are impossible to weigh prior to notice and a hearing." 237 F.R.D. at 33-34. Application of the Grinnell factors will therefore be postponed until the proposed settlement is ready for final approval.
Under the terms of the proposed settlement, the defendants would establish a fund totaling $21,759 (hereinafter " Settlement Fund" ). The Settlement Fund represents approximately one percent of defendant, Davis Law's net worth (Proposed Prelim. Approval Order ¶ 2), the maximum recovery allowable for FDCPA class actions, see 15 U.S.C. § 1692k(a)(2)(B)(ii). The parties propose that the Settlement Fund be divided in the following manner: Ms. Bourlas receives $1,000 in FDCPA statutory damages and in compensation for her role as the named plaintiff, see 15 U.S.C. § 1692k(a)(2)(B)(i), while the other class members, which the parties estimate to number approximately 2,834, are compensated on a pro rata basis (Proposed Prelim. Approval Order. ¶ 29; Joint Mot. ¶ 4(e)). Finally, in the event any part of the fund is not dispensed " from uncashed, expired Settlement Checks," a cy pres award in the remaining amount would be paid over in equal parts to the Neighborhood Economic Development Advocacy Project (NEDAP) in New York City and the Empire Justice Center in Albany, New York. ( Id. ) As part of the proposed settlement, the settling defendants will pay class counsel a fee of $15,000, separate and apart from the Settlement Fund. (Proposed Prelim. Approval Order ¶ 2.)
Class counsel will submit time sheets and other pertinent documentation in support of this fee award when moving for final approval of the proposed settlement. (Class Action Settlement Agreement ¶ 4), at which time the court will assess the propriety of such award. Even so, it should be noted at this preliminary stage that, in testing class action attorneys' fees awards, courts must be particularly vigilant in guarding against the award of " windfall fees" or even " the appearance of having done so" such that " their own integrity, the integrity of the legal profession, and the integrity of Rule 23," are not eroded. Grinnell, 495 F.2d at 469. As the Grinnell court elaborated further,
At this preliminary stage, the court finds the terms of the proposed settlement to be fair, thus falling within " the reasonable range of approval." In re Nasdaq Antitrust Litig., 176 F.R.D. at 102 (citation omitted). The plaintiff and the settling defendants assert that the settlement was reached after " extensive arm's-length settlement negotiations ...." (Joint Settlement Agreement and Release 2.) There is no indication that the settlement was the product of collusion. Nor has the court found any " obvious deficiencies" warranting denial of preliminary approval status. Finally, no evidence exists that the proposed settlement accords the class representative or any portion of the class " improper[ ] ... preferential treatment." In re Nasdaq Antitrust Litig., 176 F.R.D. at 102. Accordingly, the proposed settlement is preliminarily approved.
IV. Class Notice
For classes certified under Rule 23(b)(3), " the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." Fed.R.Civ.P. 23(c)(2)(B). See also Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 173, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (construing Rule 23(c)(2)(B) and stating that " [i]ndividual notice must be sent to all class members whose names and addresses may be ascertained through reasonable effort." ). The Rule also requires that any such notice,
[C]oncisely and clearly state in plain, easily understood language:
• the nature of the action
• the definition of the class certified
• the class claims, issues, or defenses
• that a class member may enter an appearance through counsel if the member so desires,
• that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and
• the binding effect of a class judgment on class members under Rule 23(c)(3).
Fed.R.Civ.P. 23(b)(2)(B). See also Reade-Alvarez, 237 F.R.D. at 34-35 (citing Weinberger v. Kendrick, 698 F.2d 61, 70-71 (2d Cir.1982)).
The parties have agreed to deliver notice by first class mail to each individual class member. (Proposed Prelim. Approval Order ¶ 5.) There is no indication that any of the class members cannot be identified through reasonable efforts. The court therefore finds the proposed manner of delivery sufficient under Rule 23(c)(2)(B). As to the form and content of the proposed class notice, the court finds the majority of the Rule 23(c)(2)(B) requirements satisfied. The only prominent deficiency here is the absence of any language informing class members that they " may enter an appearance through counsel if the member so desires." Fed.R.Civ.P. 23(c)(2)(B). A hearing will be held to discuss this and other minor revisions which the court deems necessary. The parties are therefore directed not to proceed with notifying the class until the form and content of the proposed notice is approved by the court.
CONCLUSION
Accordingly, the court certifies the class as defined above and preliminarily approves the proposed settlement. A hearing is scheduled for Tuesday, September 12, 2006 at 12:00 noon in Courtroom 13A of the United States Courthouse, Brooklyn, New York, at which time the form and content of the class notice will be finalized and dates set for opting-out, objections, claim form returns, and a fairness hearing. A preliminary approval order will be entered upon court approval of the class notice.
SO ORDERED:
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (2) The false representation of-(A) the character, amount, or legal status of any debt; [...] (3) The false representation or implication that any individual is an attorney or that any communication is from an attorney. [...] (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.15 U.S.C. § 1692e(2)(A), (3), (10).
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall ... send the consumer a written notice containing [...] (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector.15 U.S.C. § 1692e(a)(4) (emphasis added).
One or more members of a class may sue or be sued as representative parties on behalf of all 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).
If Rule 23 is to be preserved against deserved criticism, some attempt must be made by the court to suit the award of the fees to the performance of the individual counsel in light of the size of the settlement. Otherwise, the attorneys who are taking advantage of class actions to obtain lucrative fees will find themselves vulnerable to the criticism expressed in the Italian proverb, " A lawsuit is a fruit tree planted in a lawyer's garden."Id. (quoting Illinois v. Harper & Row Publishers, 55 F.R.D. 221, 224 (N.D.Ill.1972)).