290 F.R.D. 372
E.D.N.Y2013Background
- This is a putative FDCPA class action against Collecto for collection-fee practices on Verizon Wireless accounts.
- Plaintiffs Butto and Houser filed June 23, 2010; Butto seeks class certification with Lemberg as counsel.
- Judge Tomlinson recommended class certification for Class A and denied Class B.
- Class A covers NY consumers who received letters substantially similar to Butto’s with unrecovered Verizon fees.
- Class B would cover NY consumers from whom Collecto collected collection fees, which the recommendation denied.
- The Court adopted the Report and Recommendation, certifying Class A in part and denying Class B in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Class A should be certified under Rule 23(b)(3) | Butto—class appropriate given common letters and FDCPA violations | Collecto—common issues do not predominate due to consumer-debt questions | Class A certified in part; predominance satisfied for common letter issues |
| Whether Class B is certifiable given named plaintiff non-membership | Butto could represent Class B despite not paying a fee | Butto not a member of Class B; precludes certification | Class B denied as to representative eligibility |
| Whether debt-consumer threshold supports common class claims | Debt type can be treated collectively for FDCPA claims | Needs individualized debt-status determinations | Threshold consumer-debt question does not defeat class certification |
| Adequacy of class representative and counsel | Butto adequately represents the class; counsel qualified | Butto’s knowledge and settlement disclosure raise concerns | Adequacy findings adopted; counsel deemed adequate |
| Rule 23(b)(3) predominance and superiority analysis | Common questions predominate; class action superior | Potential individualized issues undermine predominance | Predominance and superiority satisfied for Class A; class action appropriate |
Key Cases Cited
- Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir.1999) (liberal approach to Rule 23, not a merits inquiry)
- In re IPO Sec. Litig., 471 F.3d 24 (2d Cir.2006) (rigorous analysis required for Rule 23 requirements)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (rigorous, commonality-focused class certification standard)
- Robidoux v. Celani, 987 F.2d 931 (2d Cir.1993) (typicality and commonality principles in FDCPA class actions)