Passafiume v. NRA Group, LLC
2010 U.S. Dist. LEXIS 143038
E.D.N.Y2010Background
- Plaintiff Kenneth Passafiume sues NRA Group, LLC d/b/a National Recovery Agency under the FDCPA on behalf of himself and those similarly situated.
- Alleged messages left on Plaintiff's voicemail were automated, factual content identical across calls, and failed to identify the debt collector or disclose debt-collection purposes as required by the FDCPA.
- Plaintiff asserts such messages violate §1692e(10) and §1692e(11), and §1692d by causing harassment and inadequate disclosure of the caller’s identity.
- Proposed class includes all New York residents who received a substantially similar voicemail between Feb 23, 2009 and Feb 22, 2010.
- Court grants conditional class certification for settlement purposes under Rule 23(b)(3) and preliminarily approves the proposed settlement.
- Settlement allocates $9,819.82 total fund: $1,000 to the named Plaintiff and $8,819.82 pro rata to class members who file claims; defendant pays $15,000 in fees/costs; notices will be mailed to class members.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA violation from voicemail messages | Plaintiff argues messages violated 1692e(10)/(11) by deception and non-disclosure. | NRA contends messages do not violate FDCPA as non-deceptive communications. | Messages alleged to violate FDCPA; court analyzes under least sophisticated consumer standard. |
| Class certification for settlement purposes | Passafiume seeks certification under 23(b)(3) for settlement only. | No explicit opposition beyond standard Rule 23 prerequisites. | Court certifies a settlement class under Rule 23(b)(3). |
| Preliminary approval of settlement | Settlement negotiated seriously and not collusive; fair on its face. | Settlements should be reviewed for fairness; no opposing showing. | Preliminary approval granted, signaling potential final approval after notice and hearing. |
| Proposed notice to class members | Notice must fairly inform about settlement terms and options. | First-class mail notice is adequate. | Court approves proposed notice plan under Rule 23(c)(2)(B). |
Key Cases Cited
- Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993) (establishes least sophisticated consumer standard)
- Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997) (typicality and commonality in FDCPA class actions)
- In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001) (predominance and superiority in class actions)
- Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993) (class certification requirements; typicality and adequacy)
- Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995) (numerosity presumption and class action standards)