Opinion
Civil Action No. 1:04-CV-1346.
February 7, 2005
ORDER
AND NOW, this 7th day of February, 2005, upon consideration of plaintiff's motion for class certification (Doc. 12), in which plaintiff seeks certification of a class comprising all persons with valid addresses in the Commonwealth of Pennsylvania who were, within one year prior to the filing of the complaint, sent debt collection letters from defendant, allegedly in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692- 1692o, and it appearing that the prospective class includes at least 10,000 persons, rendering "joinder of all members . . . impracticable," FED. R. CIV. P. 23(a)(1), that all persons in the prospective class are alleged to have received the same form of letter allegedly in violation of the same provisions of the FDCPA, demonstrating the presence of "questions of law [and] fact common to the class," id. 23(a)(2), that plaintiff's claims and the claims of the prospective class are all based on alleged deceptive statements contained in these letters, establishing that "the claims . . . of the representative part[y is] typical of the claims . . . of the class, id. 23(a)(3), that plaintiff's interests are generally coextensive with members of the prospective class and plaintiff's counsel has substantial experience in conducting class action litigation, meaning that "the representative parties will fairly and adequately protect the interests of the class,"id. 23(a)(4); see also Lester v. Percudani, 217 F.R.D. 345, 354 (M.D. Pa. 2003) (identifying "numerosity," "commonality," "typicality," and "adequacy of representation" as first four prerequisites to certification of a class), and it further appearing that issues of liability and damages with respect to the claims of plaintiff and members of the prospective class will be subject to substantially the same proof, establishing that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members," FED. R. CIV. P. 23(b)(3), and that members of the prospective class likely have little incentive to prosecute their claims individually and little interest in controlling the prosecution of separate actions, demonstrating that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy," id.; see also Lester, 217 F.R.D. at 354 (stating that class action may be maintained under Rule 23(b)(3) if "questions of law or fact common to the members of the class predominate over any questions affecting only individual members[and] a class action is superior to other available methods for the fair and efficient adjudication of the controversy"), it is hereby ORDERED that the motion for class certification (Doc. 12) is GRANTED as follows:
Defendant contends, without supporting citation, that plaintiff's claims are not typical of others in the prospective class because plaintiff did not "personally" negotiate the checks for which collection was later sought. This argument is without merit. As its name implies, the FDCPA targets debt collection practices, generally without regard to the circumstances of the underlying transaction from which the debt arose. See Johnson v. CRA Sec. Sys., 963 F. Supp. 859, 861-62 (N.D. Cal. 1997);see also Wayne Hill, Annotation, What Constitutes "Debt" For Purposes of Fair Debt Collection Practices Act ( 15 U.S.C.A. § 1692a(5)), 159 A.L.R. FED. 121 (2000). It is undisputed that defendant sent letters to collect debts purportedly owed by plaintiff and other members of the class. Whether or not the underlying debts were created in the same manner, the claims of unfair debt collection practices share a common base and clearly satisfy the typicality prerequisite of Federal Rule of Civil Procedure 23(a).
Defendant contends that class adjudication is not "superior" because the FDCPA caps damages in a class action to one percent of the defendant's net worth — claimed in this case to be $540,000 — meaning that each class member would receive only a small recovery if plaintiff is successful. See 15 U.S.C. § 1692k(a). This argument lacks merit. Many individuals subjected to unfair debt collection practices are likely unaware of potential remedies or lack the resources to pursue them, particularly in light of the limited recovery available under the FDCPA. See Lester, 217 F.R.D. at 354 (stating that courts, in gauging superiority of class litigation, should consider "the probable financial resources of members of the class and the financial incentives, or lack thereof, to vindicate their claims"). Class actions are essential to vindicate these claims, which would otherwise go unredressed. Weiss v. Regal Collections, 385 F.3d 337, 345 (3d Cir. 2004) (recognizing that "representative actions . . . [are] fundamental to the statutory structure of the FDCPA").
1. The above-captioned case is CERTIFIED as a class action under Federal Rule of Civil Procedure 23(b)(3). See FED. R. CIV. P. 23(b)(3), (c)(1)(A).
2. The class in the above-captioned case is DEFINED as all persons with addresses within the Commonwealth of Pennsylvania who were sent, between June 23, 2003, and June 23, 2004, one or more letters from defendant, which were in a form similar or identical to the letters attached to the complaint in the above-captioned case as Exhibits A and B, to recover a dishonored check written for personal, family, or household purposes and which were not returned undelivered by the United States Postal Service. See FED. R. CIV. P. 23(c)(1)(B).
3. The class claims in the above-captioned case are DEFINED as those claims presented in the complaint in the above-captioned case, alleging violations of 15 U.S.C. §§ 1692e(2), 1692e(3), 1692e(5), 1692e(10), and 1692f(1), arising from the sending of collection letters from defendant to class members. See FED. R. CIV. P. 23(c)(1)(B).
4. Joseph K. Goldberg, Esquire, is APPOINTED class counsel in the above-captioned case. See FED. R. CIV. P. 23(c)(1)(B), (g).
5. Plaintiff shall provide notice to all members of the class, as defined in this order, on or before March 7, 2005. See FED. R. CIV. P. 23(c)(2)(B).
a. Notice must be given individually to all class members who can be identified through reasonable effort.
b. Notice must satisfy the requirements of Federal Rule of Civil Procedure 23(c)(2)(B).
c. Plaintiff shall file, on or before March 11, 2005, a copy of the notice provided to class members and a certification by counsel detailing those members to whom individual notice was provided, the reasons why certain members of the class could not be identified through reasonable effort, and the method by which notice was provided to members who could not be identified through reasonable effort.
Plaintiff requests class certification also under Rule 23(b)(2), which permits claims seeking "injunctive relief or corresponding declaratory relief with respect to the class as a whole." See FED. R. CIV. P. 23(b)(2). However, the Third Circuit has recently held that the FDCPA provides for only monetary relief, not subject to class adjudication under subsection (b)(2). Weiss, 385 F.3d at 341-42. Therefore, the court declines to certify the class under this provision.
The court also granted, by separate order on this date, an unopposed motion to amend the complaint (Doc. 23) to name two agents of defendant as parties to this action. This amendment has no impact on the court's analysis of the certification issue, and the class action will proceed against the three defendants named in the amended complaint.
The official commentary to Rule 23 notes that "[t]he Federal Judicial Center has created illustrative clear-notice forms that provide a helpful starting point for actions similar to those described in the forms." FED. R. CIV. P. 23 advisory committee notes 2003.