MEMORANDUM OF DECISION AND ORDER
This is a putative class action brought against the Defendant Collecto Inc., d/b/a
I. BACKGROUND
In 2007 and 2009, Victoria Butto (the “Plaintiff’) entered into a cell phone service contract with Verizon Wireless (“Verizon”). Butto then failed to pay her cell phone bills, and in response, Verizon cancelled her service. After the service termination, Butto’s account remained unpaid, and, pursuant to a standing collection agreement that Verizon had with the Defendant Collecto, Verizon requested Collecto to attempt to collect the overdue charges. Collecto complied, and in February 2010, Butto received a “Notice of Collection Placement” in the mail from the Defendant Collecto. The letter demanded payment of both a “principal” amount of $181.94, and “Fees/Coll[ection] Costs” in the amount of $33.29.
In response to this letter, Butto and another plaintiff, Lakesha Houser, commenced the present putative class action against Collecto on June 23, 2010. Butto and Houser do not contest the principal amounts that Collecto seeks to recover, but rather assert that Collecto’s demand for collection costs was improper. The Plaintiffs maintain that, at the time Collecto mailed its Notices of Collection Placement, Collecto had no valid basis for seeking to recover collection costs from the plaintiffs
On October 6, 2012, the Court referred this matter to United States Magistrate Judge A. Kathleen Tomlinson for a recommendation as to whether (1) this ease should be certified as a class action pursuant to Fed.R.Civ.P. 23; (2) the Plaintiff Victoria Butto should be appointed as class representative; and (3) whether Lemberg & Associates, LLC should be appointed as class counsel. On February 16, 2013, Judge Tomlinson issued a thorough Report and Recommendation (“the Report”), recommending that the Plaintiffs motion for class certification be granted in part and denied in part.
First, Judge Tomlinson reviewed the two classes of consumers put forth by the Plaintiff, including the revised definition for Class B, which was proposed to include “[a]ll consumers in the State of New York from whom Defendant collected ‘collection fees’ on behalf of Verizon on Verizon Wireless accounts.” (Pl.’s Reply at 4.) Judge Tomlinson found that because Plaintiff Butto never paid a collection fee, she could not be a member of Class B and as such, recommended that the Plaintiffs motion for class certification as to proposed Class B should be denied.
Next, Judge Tomlinson analyzed the Rule 23 requirements in connection with the Plaintiffs amended definition of Class A, namely: numerosity; commonality; typicality; and adequacy of representation.
With regard to numerosity, Judge Tomlin-son reasoned that based upon the 18,949 collection letters sent to Verizon customers, common sense would dictate that a least some percentage of these were sent to Verizon Wireless customers as opposed to Verizon Business and Telecom customers. The latter customers could not recover under the FDCPA. She also found that despite the Defendant’s argument that customers may have received collection letters with varying language, the Plaintiffs amendment to the Class A definition to include the language “[a]U customers in the State of New York who were sent a collection letter by Defendant substantially similar to the Letter sent to Plaintiff for a Verizon Wireless account [,]” sufficiently alleviated that concern. For these reasons, Judge Tomlinson concluded that the Plaintiff established the first criterion of numerosity.
In addition, the Defendant contended that class certification was not appropriate because there are particular defenses unique to Butto which preclude class certification, namely that the Plaintiff did not first seek relief under the FDCPA debt dispute procedure before filing an action with this Court. Nevertheless, Judge Tomlinson found that because the Plaintiff was not attacking the accuracy of the bill standing alone, it would be unnecessary for her to engage in the debt dispute procedure as a prerequisite to filing a federal action. Thus, the Report ultimately concluded that the class members’ claims are typical of one another.
With regard to the adequacy of representation, Judge Tomlinson found that she could not identify any antagonism between the Plaintiffs claims and those of the proposed Class A, which would interfere with the Plaintiffs ability to act as class representative. Judge Tomlinson also explored whether Lemberg & Associates, LLC should be appointed lead counsel and concluded that the firm would adequately represent the class.
Finally, in engaging in the relevant Rule 23(b) analysis, Judge Tomlinson determined that questions of law or fact predominated over the individual issues presented, and that a class action was superior to other methods for adjudicating this controversy. In this regard, she rejected the Defendant’s repeated arguments that individual questions concerning the nature of the debt as personal or business, as well as other individualized issues, would preclude a finding that a class action here is a superior method for the “fair and efficient adjudication” of a suit potentially involving over 18,000 individuals with identical or nearly identical claims.
Therefore, in sum, Judge Tomlinson recommended that the Plaintiffs motion for class certification be denied with respect to Class B, but granted with respect to Class A, as reflected in the following amended definition:
All consumers in the State of New York who were sent a collection letter by Defendant substantially similar to the Letter sent to Plaintiff for a Verizon Wireless account within one year prior to the filing of this action, and which was not returned as undeliverable, which letter included a collection fee for Verizon Wireless service which had not yet been incurred at the time the letter was sent.
II. DISCUSSION
A. Standard of Review
A court is required to make a de novo determination as to those portions of the Report and Recommendation to which objections were made. 28 U.S.C. § 636(b)(1)(C); Grassia v. Scully,
B. Collecto’s Objections
On March 4, 2013, the Defendant filed several objections to Judge Tomlinson’s Report and Recommendation. The Defendant raises several arguments, including: (1) that the Report applied an improper standard in determining whether to certify the class; (2) that the Report erred analyzing the threshold requirement of a consumer debt; (3) that the Report erred in determining that an individualized defense does not warrant denial of class certification; (4) that the Report incorrectly concluded that the Plaintiff had met her burden of establishing her own adequacy as a class representative and that of proposed class counsel; and (5) that the Report’s analysis under Rule 23(b)(3) is lacking. The Court will address each contention in turn.
1. As to Whether the Report Applied an Improper Standard
First, the Defendant argues that the Report failed to hold the Plaintiff to her proper burden of proof under Rule 23. The Report stated the relevant standard, in part, as follows:
In determining whether to certify a class, eoxirts take a liberal rather than a restrictive approach. See Caridad v. Metro-North Commuter RR,191 F.3d 283 , 291 (2d Cir.1999) (finding that “the Second Circuit has directed district courts to apply Rule 23 according to a liberal rather than a restrictive interpretation”). Indeed, a motion for class certification is not an occasion for examination of the merits of the case. See Eisen v. Carlisle and Jacquelin,417 U.S. 156 , 178 [94 S.Ct. 2140 , 40 L.Edüd 732] (1974) (“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”) (internal quotation marks omitted); In re IPO Sec. Litig.,471 F.3d 24 , 41 (2d Cir.2006) (holding that it is improper for a court to assess “any aspect of the merits unrelated to a Rule 23 requirement”).
(Report & Recommendation at 6-7). Collecto asserts that this statement of the guiding principles of Rule 23 is inaccurate because the current state of the law is that a class may only be certified if after a rigorous analysis, the prerequisites of Rxxle 23(a) have been satisfied. In this regard, the Defendant contends that the party seeking clarification bears a “heavy burden” of establishing that each of these prerequisites has been met. In addition, the Defendant points out that the Caridad decision cited in the Report has since been overruled, and that it is now acceptable for courts to examine the merits when determining the propriety of class certification when it is necessary to do so.
The Defendant is correct in that the Caridad decision has been expressly overruled by the Second Circuit. Nevertheless, the Report does not contain a legal error. While Caridad was overruled, the main principle that was subsequently rejected in that decision was not the language cited to by Judge Tomlinson—that in determining whether to certify a class, courts take a liberal rather than a restrictive approach—but an entirely discrete notion. Previously under Caridad, plaintiffs needed to only make “some showing” that certain perquisites of Rule 23 were met. However, in In re IPO Sec. Litig.,
Next, the Defendant takes issue with the language in the Report that “a motion for class certification is not an occasion for examination of the merits of the case.” Collecto is correct that if a factual dispute arises concerning one of the Rule 23 requirements, the Court must resolve the dispute irrespective of whether it involves a merit issue. Indeed, in In re IPO, in addition to overruling Caridad, the Second Circuit declined to follow the dictum in another prior decision, Heerwagen v. Clear Channel Commc’ns,
To be clear, “[t]he party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23’s requirements has been met.” Myers v. Hertz Corp.,
Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. ... [S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and [ ] certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. Frequently that rigorous analysis will entail some overlap with the merits of the plaintiffs underlying claim. That cannot be helped.
Wal-Mart Stores, Inc. v. Dukes, __U.S.__,__,
In the Court’s view, Judge Tomlinson did comply with this legal standard and engaged in a rigorous analysis with respect to each necessary element. The Report’s examination of the Rule 23 requirements utilized accurate statements of the law, as evi
Therefore, the Court rejects the objection by the Defendant that the Plaintiff was not held to the proper burden of proof or that the Report applied an incorrect legal standard.
2. As to Whether the Report Erred in Analyzing the Threshold Requirement of a Consumer Debt
Next, the Defendant argues that the Report and Recommendation erred in analyzing the threshold requirement of a consumer debt.
A claim under the FDCPA must involve a consumer debt, meaning it applies to the obligation of a consumer to pay money arising from a transaction for personal, family, or household purposes. See 15 U.S.C. § 1692(a). Thus, in order to recover in the present case, each class member would bear the burden of establishing that the debt they have with Verizon is a consumer debt, as opposed to a non-consumer debt. The Defendant contends that the standard utilized by Judge Tomlinson was not “sufficiently rigorous” to determine that the Plaintiff met her burden of establishing that the potential class members are “consumers” for purposes of the FDCPA.
The Report stated that “common-sense suggests that at least some percentage of the 18,949 letters were sent to Verizon Wireless customers, and that potential class members likely number in the thousands.” (R & R at 13.) The Defendant argues that this assumption was not based on any admissible evidence submitted by the Plaintiff. Rather, it asserts that this finding was based in part on language in the contract that requires Collecto to comply with the FDCPA whenever it applies, but that this does not transform business debt to consumer debt. In addition, the Defendant points out that the Report’s determination also relied on the nomenclature used in the Plaintiffs proposed Class A definition—inserted for the first time in the Plaintiffs Reply Memorandum—that the Plaintiff seeks to represent only Verizon Wireless account holders, as opposed to Verizon Business or Verizon Telecom customers.
However, according to the Defendant, merely because an account is a Verizon Wireless account does not mean that it is consumer debt for purposes of the FDCPA. It is the purpose for which the debt is incurred that is dispositive. In short, the Defendant argues that the assumption that the proposed class is comprised of consumers is inconsistent with the rigorous analysis required by the Supreme Court. Furthermore, the Defendant maintains that the threshold issue of a consumer debt weighs against commonality, typicality, and superiority. In particular, it states that this case would require an individualized inquiry into each and every class member’s debt to determine whether the underlying financial obligation is consumer debt for purposes of the FDCPA, which is a highly fact driven determination.
With regard to numerosity, as an initial matter, there is no requirement that the exact number of class members be known for class certification. In re Med. X-ray Film Antitrust Litig., No. CV-93-5904,
More importantly, the Defendant’s argument for the denial of class certification because of the requirement of a personal debt for purposes of recovering under the FDCPA is without merit. “Contrary to [the D]efendant[’s] assertion, the need to determine the consumer nature of a debt does not automatically preclude class certification. Instead, courts should examine the general nature of the debts and the ease of separating consumer from business debts finding class certification appropriate in a variety of circumstances.” Berrios v. Sprint Corp., No. CV-97-0081(CPS),
In a similar FDCPA action, Selburg v. Virtuoso Sourcing Group, LLC, No. 1:11-cv1458-RLY-MJD,
Moreover, Judge Young noted, as several other courts have, that “the need to show that the transactions involved in a particular case are consumer transactions is inherent in every FDCPA class action. If that need alone precluded certification, there would be no class actions under the FDCPA.” Wilkerson v. Bowman,
The Defendant asserts that it cannot be determined on an administrative basis by looking at the records of Collecto or Verizon whether a particular proposed class member’s account is properly subject to the FDCPA. However, it appears to the Court that the process of determining whether a debt is a consumer debt would be “relatively straightforward.” There is no reason to believe that the information could not be obtained from Verizon’s own customers. For instance, in Ditty v. CheckRite, Ltd., No. 2:95-CV-430C,
Further, even if Collecto cannot differentiate between consumer debt and non-consumer debt for the 18,949 collection letters it has sent out, as in Selburg, “this fact alone does not preclude class treatment.” Selburg,
Finally, any potential hardship in determining the class can be alleviated by Rule 23(c)(1)(C), which allows the court to alter or amend an order that grants class certification before final judgment. “In addition, any disputes regarding whether a particular class member’s debt is consumer or commercial can be remedied through proper drafting of the claim form, and at the damages phase of this case.” Macarz v. Transworld Sys., Inc.,
As noted in Selburg, “[a]t bottom, a class action is the superior method to the fair and efficient adjudication of this controversy even if additional ministerial inquiries are necessary.”
Therefore, whether considered as part of the ascertainability and numerosity inquiries, or whether viewed as part of the elements of commonality, typicality, and superiority, the Court does not find that under the circumstances of this ease, individualized inquiries into each class member’s debt precludes class certification. Accordingly, the objection as to that portion of Judge Tomlinson’s Report with regard to the threshold requirement of a consumer debt is rejected.
3. As to Whether the Report Erred with Regard to Individualized Defenses
The Defendant also claims that the Report overlooks the class certification problem created by a unique defense applicable to the Plaintiff.
The Defendant emphasizes that for the Plaintiff to recover for allegations that a debt referenced in a collection letter is not valid, she is required to follow a certain procedure set forth in the FDCPA. Specifically, a consumer may not institute an immediate lawsuit alleging that the letter violates the FDCPA. Instead, a party is required to
The Defendant argued before Judge Tomlinson that Butto is subject to the individualized defense of failing to first comply with this debt dispute procedure before commencing an action in federal court. If this defense is meritorious, then the Plaintiff would arguably be unable to recover under the FDCPA. Thus, the Defendant argues that because Butto failed to follow this debt validation procedure, Judge Tomlinson did not adequately analyze whether this unique defense might apply.
However, the Report found that while But-to did not first attempt to dispute the debt with Collecto, she is not mandated to do so under the relevant precedent of Bleich v. Revenue Maximization Group, Inc.,
To the extent that Judge Tomlinson suggested that this individual defense as to But-to would not be successful, the Court declines to adopt that precise finding. The Court recognizes that a valid argument could be made as to the merits of that defense. In particular, if one characterizes the tacked on collection fee as part of the “debt”—even though not the original debt—it may be said that the Plaintiff is disputing the accuracy of the debt as a whole. Nevertheless, the Court will not resolve at this early stage of the litigation whether, as a matter of law, the Plaintiff Butto was required to comply with the debt dispute procedures outlined in the FDCPA. As the Plaintiff points out in her opposition, the merits of the purported unique defense are not necessarily relevant at the certification stage.
What is relevant and what ultimately drives this analysis is that even if this defense is presumed valid, the existence of such an individualized defense would not preclude class certification. This is because Colleeto has not explained how this potential defense would threaten to become the focus of the litigation. As Judge Tomlinson explained in her Report, the existence of defenses unique to the named plaintiff may preclude class certification only if the unique defenses “threaten to become the focus of the litigation.” Gary Plastic Packaging v. Merrill Lynch,
Here, Collecto largely focuses on why But-to would be subject to this particular defense. In this regard, the Defendant merely asserts that Butto should not be permitted to represent a class of individuals who actually meet the prerequisites to an FDCPA claim. However, the Court finds that this unique defense does not overshadow the common issues that dominate this class action proceeding.
4. As to Whether the Report Erred with Regard to Adequacy of the Class Representative and the Proposed Class Counsel
As another basis for its objections, the Defendant argues that the conclusion in the Report that the Plaintiff met her burden of establishing her own adequacy and that of the proposed class counsel is incorrect.
Rule 23(a)(4) requires a plaintiff to establish both the ability of the named plaintiff to fairly and adequately protect the interests of the class and the adequacy of counsel retained to represent the class. Here, the Defendant attacks both elements, asserting that Butto’s deposition testimony reveals her lack of knowledge concerning her own claims in this action. Also, it argues that her testimony indicates that she had abdicated control of the litigation to her attorneys, who did not inform her of a settlement offer that had been made. In this regard, the Defendant contends that the Report misinterprets the Plaintiffs deposition testimony as to these matters.
In the Court’s view, the Report reasonably construed the Plaintiffs deposition testimony in finding that the Plaintiff was an adequate representative and that class counsel was qualified, experienced, and able to conduct the litigation. Also, the Court notes that the Defendant does not assert a conflict of interest between Butto and the other potential class members, which is the relevant inquiry.
Instead, the Defendant contends only that the Plaintiff has not met her burden to demonstrate her familiarity with the action; her participation in decision-making in the ease; her ability or willingness to bear the costs of the action; or her understanding of the comparative merits of class and individual actions. As to these matters, the Court agrees with Judge Tomlinson that while the deposition testimony may raise some questions as to the comprehensiveness of Butto’s knowledge, this testimony does not warrant denial of class certification. Indeed, the Court agrees with the Plaintiffs response, including that as an unsophisticated customer, she should not be charged with applying the damages calculation in order to comprehend what a potential class recovery might be. Again, the Court notes that the Defendant has not identified any antagonism between the Plaintiffs claims and those of the proposed class that would interfere with her ability to act as class representative. While the Defendant again relies upon the possibility of a unique defense applicable to Butto, the Court has already found that this would not prevent class certification, which is in accordance with the findings made by Judge Tomlinson in her Report.
With regard to the adequacy of class counsel, the Court agrees with the Report’s analysis of the relevant factors, including counsel’s experience in handling class actions; counsel’s knowledge of the applicable law; and the resources counsel will commit to representing the class. As for the issue raised by the Defendant of whether class counsel informed the Plaintiff of any settlement proposals, Butto’s testimony is somewhat ambiguous. However, reviewing But-to’s testimony in its entirety, the court does not find that class counsel has abdicated his duty under the Rules of Professional Conduct to inform his client of any settlement proposals, or otherwise engaged in any other unethical conduct. Therefore, the Court does not find that class counsel is inadequate on this basis.
In sum, the Court dismisses the Defendant’s objections that the Report contains errors as to the requirements of adequacy of representation pursuant to Rule 23(a)(4).
5. As to Whether the Report’s Rule 23(b)(3) Analysis is Lacking
Finally, the Defendant asserts that the Report’s analysis under Rule 23(b)(3)—in particular, whether a class action is superior to other available methods to resolve the current controversy and whether common issues predominate—-was entirely insufficient. As to predominance, it contends that the Report found conelusorily that “the issues regarding the substantially same collection letters sent by Defendant predominate over
In reviewing the Report, it is apparent to the Court that the portion devoted to the Rule 23(b)(3) analysis was brief only because the Defendant merely repeated the same arguments it had asserted on the issues of commonality and typicality, such as the potential differences in the collection letters sent by the Defendant and other potential individualized issues. In the Court’s view, it was unnecessary for Judge Tomlinson to repeat her earlier findings in connection with these arguments, as they had already been explored at length. Thus, her findings as to predominance and superiority were not conclusory and were firmly supported by the well-stated reasoning throughout the Report.
Further, although the Report did not expressly analyze the relevant factors for superiority, it does not appear that the Defendant raised any arguments before Judge Tomlinson as to many of these factors. In any event, the Court concurs with and adopts her conclusion as to superiority. The Court firmly agrees that a class action here is the superior method for the fair and efficient adjudication of this case. The Defendant now asserts that potential class members may stand to recover more in individual actions than in a class action, rendering the class action an inferior action from the perspective of potential class members. This argument is rejected by the Court. Under Rule 23(e)(2)(A), members of class actions maintained under Rule 23(b)(3) who determine that their interests are better served by an individual action, and provide timely notice of this election to the Court, will be excluded from the class through an “opt out” provision. This would ensure that individual interests are respected. Moreover, the possibility that a putative class member may be entitled to a greater recovery if they pursue claims on their own arises in every class action. That vague possibility is not a ground for denying class certification. In this regard, the Court finds that challenging the content of a standard form letter is the type of suit that is more efficiently brought as a class action than as a series of individual actions, with the inefficiency, high costs, and the risk of inconsistent outcomes posed by that method.
As for any other considerations not expressly considered in the Report, the parties did not brief any arguments surrounding those factors beyond what has already been discussed in this decision. The Court finds that all the relevant conditions with regard to a valid proper class action are met. The interest of litigants in raising separate actions is preserved by the opt-out procedures; there is no evidence of any related existing litigation; this forum is ideal since one of the Plaintiff’s claims is based on New York State law, namely New York General Business Law § 349; and no particular difficulty in managing the class action has been identified beyond the concerns raised by the Defendant that have already been discussed.
Therefore, despite the relative brevity of the Report’s section on the Rule 23(b)(3) analysis, the Court agrees with the ultimate finding and accordingly rejects the Defendant’s objection that this precludes class certification.
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Judge Tomlinson’s Report and Recommendation is adopted in its entirety; and it is further
ORDERED that the Plaintiffs motion for class certification is granted in part and denied in part, as set forth in this Decision and Order.
SO ORDERED.
A. KATHLEEN TOMLINSON, United States Magistrate Judge:
Plaintiff Victoria Butto has moved for class certification in this Fair Debt Collection Practices Act ease.
I. Background
A. Factual Allegations
Plaintiff Victoria Butto (“Plaintiff’ or “But-to”) stopped paying her Verizon Wireless cellular phone bill in 2008 due to a dispute over charges on the bill. See Affidavit of Victoria Butto in Supp. of Class Cert. (“Butto Aff.”) [DE 51-11], ¶ 4. Plaintiffs Verizon Wireless account was subsequently transferred to Defendant Collecto, a debt collection company, for collection of the debt. Collecto Supp. Int. Resp., Ex. F to Pl.’s Mem., No. 8. The Verizon Wireless Services Agreement between Butto and Verizon (“ButtoVerizon Agreement”) provides that Verizon may charge Butto with any collection fees that Verizon is charged by a collection agency used to collect a debt from Butto. ButtoVerizon Agreement, Ex. B to Pl.’s Mem. Further, pursuant to a collection agreement between Verizon and Collecto (the “Collection Agreement”), Collecto is compensated by Verizon on a contingency basis, and a commission is earned only when the debt is collected, not before. Collection Agreement, Ex. E to Pl.’s Mem., at 10.
Shortly after Butto’s Verizon account was transferred to Collecto, Butto received a collection letter from Collecto concerning the account (“Collection Letter”). See Collection Letter, Ex. G to Pl.’s Mem. The letter demanded payment of a “principal” amount of $379.31, $0.00 in interest, and “Fees/Coll Costs” of $68.27 (the “Fees & Costs”). Id. Plaintiff alleges that these Fees & Costs were contingent fees and at the time Collecto sought to collect them, they had not been charged by Collecto to Verizon. Pl.’s Mem. at 3. Therefore, Plaintiff maintains, at the time the Collection Letter was sent, no commission had been earned and Butto owed no fees to Verizon. Id. (citing Collection Agreement, Butto-Verizon Agreement, Collecto Int. Resp., Ex. D to Pl.’s Mem.). Further, Plaintiff argues that because Collecto is compensated by Verizon on a contingency basis only—or when the debt is actually collected—the Fees & Costs were not expressly authorized by the Collection Agreement because Verizon was never charged by Collecto. Pl.’s Mem. at 3 (citing Collection Agreement at 10). Plaintiff does not appear to be asserting that she actually paid the Fees & Costs; rather, she claims that the Defendant’s actions in charging collection fees not yet owed violates the FDCPA. See generally Am. Compl. In the year prior to the initiation of this action, Collecto sent 18,949 letters to Verizon customers whose accounts were placed with Collecto for collection. Those letters included a collection fee. Collecto Supp. Int. Resp. No. 10. Collecto accumulated $14,986.00 in fees on Verizon debts in the year preceding the filing of this action. See id. No. 14; Pl.’s Mem. at 3.
B. Procedural Posture
On June 23, 2010, Plaintiffs Butto and Houser (“Plaintiffs”) filed the Complaint in this action alleging common law fraud as well as violations of the Fair Debt Collection Practices Act, 15 U.S.C. et seq. (“FDCPA”) and New York General Business Law, against Defendant Collecto, Inc. (“Collecto”), a debt collection company. DE 1. On October 26, 2010, before Defendant interposed an answer, Plaintiffs filed an Amended Complaint. DE 3. Plaintiffs allege that Defendant attempted to recover a collection fee on a debt before the fee was incurred, in violation of the FDCPA. Am. Compl. ¶¶ 19-24.
On August 9, 2012, Plaintiff Butto filed a Motion for Class Certification. See DE 50. Defendant opposed the Motion [DE 55] and Plaintiff submitted a Reply in Support [DE 59], modifying the class definitions in response to Defendant’s objections, as described below. Plaintiffs Motion has been referred to this Court to issue a Report and Recommendation regarding: (i) whether this case should be certified as a class action pursuant to Federal Rule 23; (ii) whether the Plaintiff Butto should be appointed as class representative; and (iii) whether Lemberg & Associates, LLC, should be appointed as class counsel. See DE 60.
II. The Applicable Law
A. FDCPA
“The FDCPA was enacted to ‘eliminate abusive debt collection practices by debt collectors, [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.’ ” Bank v. Pentagroup Fin., LLC, No. 08-CV-5293,
Section 1692e of the FDCPA provides that “[a] debt collector may not use any false, deceptive, or misleading representations or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. The Section specifically identifies conduct by a defendant which violates the statute. See 15 U.S.C. § 1692e(l)-(16); see also Clomon,
Section 1692f(l) prohibits “[t]he collection of any amount (including any interest, fee, charge or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(l). Pursuant to Section 1692g(a), a debt collector must send the consumer a written notice containing the amount of the debt, among other things. See 15 U.S.C. § 1692g(a). Conduct such as that alleged here has been found to violate the statute.
When a plaintiff establishes a violation, he or she may recover statutory damages in an amount not to exceed $1,000, plus any actual damages sustained. See 15 U.S.C. §§ 1692k(a)(l), (a)(2)(A). Recovery in FDCPA class actions is limited to $1,000 in statutory damages for each named plaintiff, and the lesser of $500,000 or one percent of the net worth of the defendant debt collector for the remainder of the class. See 15 U.S.C. §§ 1692k(a)(l), (a)(2)(B).
B. Rule 23
Rule 23(a) provides that:
[o]ne 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, (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a).
In addition to satisfying Rule 23(a), a plaintiff must satisfy one of three criteria set forth in Rule 23(b). Comer v. Cisneros,
In determining whether to certify a class, courts take a liberal rather than a restrictive approach. See Caridad v. Metro-North Commuter RR,
III. Discussion
A. Rule 23(a) Analysis
1. The Proposed Classes
Plaintiff initially proposed to certify two classes, as follows:
Class A
All consumers in the State of New York who were sent a collection letter by Defendant within one year prior to the filing of this action, and which was not returned as undeliverable, which letter included a collection fee for Verizon service which had not yet been incurred at the time the letter was sent.
ClassB
All consumers in the State of New York from whom Defendant collected unauthorized “collection fees” on behalf of Verizon.
Pl.’s Mem. at 3-4 (emphasis in original).
As a first concern, Defendant argues that Plaintiffs Class B definition is flawed in part because “Plaintiff is not a member of Class B and therefore cannot serve as its representa
The Supreme Court has “repeatedly held that ‘a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.’” Gen. Tel. Co. of Southwest v. Falcon,
In her Reply, Plaintiff does not cite any authority which deviates from this line of cases. Plaintiff argues that Keele v. Wexler,
Plaintiff Butto does not allege in the Complaint or Amended Complaint that she ever paid a collection fee. See generally DE 1, 3. Defendant claims that Butto also denied paying any such fee during her deposition. Def.’s Opp. at 9 (citing Butto Tr. at 33, 38-40, 49). While Plaintiff does not appear to affirmatively state in the deposition excerpts provided that she did not pay the collection fee, she certainly indicates that she was not willing to pay such fee. See Butto Tr. 38:24-40:11. Further, Plaintiff in the instant motion does not argue that she in fact paid a collection fee. See PL’s Reply at 4. Since it seems that Defendant never collected a fee from her, Butto cannot be a member of Class B. As noted, under the relevant precedents, a determination that the named plaintiff is not a member of the class is dispositive, and other class certification requirements need not be considered. See Bentley,
2. Class A Analysis
Unlike the proposal regarding the composition of Class B, Plaintiff Butto has alleged facts which place her within the framework of the proposed Class A plaintiffs.
a. Numerosity
Numerosity is satisfied when the class is numerous enough to make joinder of all members impracticable. Fed.R.Civ.P. 23(a). A plaintiff is not obligated to identify the exact number of class plaintiffs. See Robidoux v. Celani,
Plaintiffs argue that the 18,949 collection letters Collecto sent on behalf of Verizon establish numerosity. PL’s Mem. at 6-7. Defendant does not appear to dispute that these letters were sent. Rather, Defendant argues that many of the individuals receiving these letters may not be members of the proposed class because individuals receiving the letters may have had differing agreements with Verizon and may have used Verizon accounts for business purposes, and business debt is not regulated by the FDCPA. See Def.’s Mem. at 12 (citing 15 U.S.C. § 1692a(5)). Defendant further argues that Plaintiff does not offer any evidence allowing for an estimation of how many consumers receiving the form letter would fall within the class. Def.’s Mem. at 12.
In response, Plaintiff submits a series of Verizon Wireless Customer Agreements from 2006-2010, illustrating that these agreements have identical language pertaining to collection fees. See PL’s Reply at 1 (citing
Plaintiff also argues that Verizon Wireless customers such as Plaintiff are “consumers” under the FDCPA, using their Verizon accounts “primarily for personal, family, or household purposes” as required under 15 U.S.C. § 1692a(5). See Pl.’s Reply at 2. Plaintiff here seeks to represent Verizon Wireless account holders only and not holders of Verizon Business or Verizon Telecom accounts. Pl.’s Reply Mem. at 3. Under the Collection Agreement, Plaintiff argues, Collecto was mandated to comply with all provisions of the FDCPA for Verizon Wireless Accounts, indicating that these accounts are consumer-related. Pl.’s Reply Mem. at 2; Collection Agreement at 52. Moreover, Verizon mandated FDCPA compliance for Verizon Wireless accounts only—not for Verizon Business and Verizon Telecom. Pl.’s Reply Mem. at 3; see generally Collection Agreement. The Defendant asserts that the definition of the class proposed as Class A has the potential to encompass non-class members. Pl.’s Reply Mem. at 3. In response, Plaintiff is amending the Class A definition to read as follows below. The Court has placed in boldface and italics the additional wording included in the amended definition:
All consumers in the State of New York who were sent a collection letter by Defendant substantially similar to the Letter sent to Plaintiff for a Verizon Wireless account within one year prior to the filing of this action, and which was not returned as undeliverable, which letter included a collection fee for Verizon Wireless service which had not yet been incurred at the time the letter was sent.
Pl.’s Reply at 3-4. The amendment clarifies that Plaintiff seeks to represent only Verizon Wireless account-holders and not Verizon Business or Verizon Telecom customers. Further, the amended definition clarifies that Class A members are individuals who were sent collection letters “substantially similar” to the letter sent to Plaintiff.
The Court notes that it is not clear that all of Defendant’s 18,949 collection letters were sent to Verizon Wireless account-holders as opposed to Verizon Business or Verizon Telecom customers. See Def.’s Supp. Int. Resp. No. 10 (collection letters were sent to 18,949 “Verizon customers.”) However, commonsense suggests that at least some percentage of the 18,949 letters were sent to Verizon Wireless customers, and that potential class members likely number in the thousands. Based on the foregoing, the Court concludes that Plaintiff has established the first criterion of numerosity.
b. commonality and typicality
Commonality and typicality, although two distinct requirements for class certification, are closely related. As the Supreme Court recently clarified, “[w]hat matters to class certification ... is not the raising of common ‘questions’—even in droves— but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores Inc. v. Dukes, __U.S.__,
With regard to typicality, “Rule 23(a)(3) requires that ‘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.’ ” Assif v. Titleserv, Inc.,
Defendant argues that commonality and typicality are not met here because individualized inquiries must be made into each and every class member’s debt to determine whether it is a consumer debt, since potential class members may have used their Verizon accounts for business purposes. Def.’s Opp. at 12-13. This inquiry is difficult, Defendant alleges, because whether the underlying debt is “consumer” in nature cannot be determined ministerially from any readily available set of records, and the proportion of any particular account used for business purposes will vary greatly. Id. at 13.
Contrary to Defendant’s assertion, “the need to determine the consumer nature of a debt does not automatically preclude class certification.” Berrios v. Sprint Corp., No. CV-97-0081,
In Berrios, for example, the court granted certification of a class encompassing residential telephone accounts that may have been used for business purposes, because there was a “substantial likelihood” that the account-holders used the accounts “primarily for personal, family, or household purposes.” Id. As noted, Plaintiff has amended the Class A definition to include only Verizon Wireless account-holders. Pl.’s Reply at 3-4. Here, as in Berrios, there is a “substantial likelihood” that the Verizon Wireless accounts were used primarily for personal, family, or household purposes, especially given the fact that Verizon has separate lines for Verizon Business and Verizon Telecom accounts. Further, as noted previously, under the Collection Agreement, Verizon mandated compliance with the FDCPA for Verizon Wireless accounts but not for Verizon Business and Verizon Telecom accounts. This agreement language indicates that at least Verizon believed Verizon Wireless accounts were subject to FDCPA regulations. Pl.’s Reply Mem. at 2-3; see Collection Agreement.
Defendant further argues that commonality and typicality are not met because individualized inquiries must be made into the particular agreements each potential class member had with Verizon, as well as into the content of the collection letters Defendant
Finally, Defendant contends that class certification is not appropriate because there are particular defenses unique to the named Plaintiff which preclude class certification. Def.’s Opp. at 14 (citing Gary Plastic Packaging v. Merrill Lynch,
The existence of defenses unique to the named plaintiff may preclude class certification if the unique defenses “threaten to become the focus of the litigation.” Gary Plastic Packaging,
Defendant also contends that Plaintiff But-to has denied signing the Butto-Verizon Agreement, which may “result in differing legal issues” among class members. Def.’s Opp. at 15 (citing Butto Tr. at 16:25-32). Defendant does not explain how this might constitute a unique defense. Plaintiff maintains that Butto has not denied signing the Agreement. Rather, Plaintiff could not authenticate her signature on a copy of the Agreement shown to her during her deposition. Pl.’s Mem. at 7 n. 1. In any case, Plaintiff asserts that whether or not Butto or other class members signed a Verizon Wireless customer agreement does not preclude recovery under the FDCPA. Id. at 6-7 (citing Fedotov, v. Peter T. Roach & Associates, P. C.,
In sum, the central issue in this case is whether the Defendant mailed a substantially similar collection letter which violated the FDCPA. Therefore, common issues exist sufficient to satisfy the commonality requirement. Further, all of the alleged class members’ claims arise out of identical or substantially similar collection letters, resulting in the same violations of the FDCPA being implicated for each class member. Thus, the
c. Adequacy of Representation
To satisfy this factor, a plaintiff must demonstrate two elements: (1) “there is no conflict of interest between the named plaintiffs and other members of the plaintiff class” and (2) “class counsel is qualified, experienced, and generally able to conduct the litigation.” Marisol A,
Defendant does not assert a conflict of interest between Plaintiff Butto and other potential class members. Instead, Defendant argues that Butto has made no showing as to her “familiarity with the action, her participation in decision-making in the case, her ability or willingness to bear the costs of the action or her understanding of the comparative merits of class and individual actions.” See Def.’s Opp. at 16.
Although some of the deposition testimony highlighted by the Defendant in its brief may raise some question, that testimony itself does not warrant denial of class certification. Sections of Butto’s deposition testimony reflect which that she read and approved the Complaint (Butto Tr. 46:20-47:1); understood that individuals receiving a similar collection letter could be members of the proposed class and would get a percentage of the recovery (id. 49:24-50:04, 59:4-7); and that she would be hable for her fair share of class costs (id. 54:25-55:14). The proposed class representative in this case is not merely “a key to the courthouse door” for her attorneys; she is an unsophisticated consumer allegedly victimized by the Defendant. See Weisman v. Darneille,
With respect to appointing class counsel, the Court considers the following factors:
(1) the work counsel has done in identifying or investigating potential claims in the action;
(2) counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action;
(3) counsel’s knowledge of the applicable law; and
(4) the resources counsel will commit to representing the class.
See Fed.R.Civ.P. 23(g)(A) (cited in Iglesias-Mendoza v. La Belle Farm, Inc.,
Plaintiff Butto is represented by Sergei Lemberg of Lemberg & Associates, L.L.C. Defendant claims that Butto’s alleged unfamiliarity with the action, her “complete abdication of the case to counsel” and counsel’s alleged failure to inform Butto about settlement proposals precludes class certification. Def.’s Opp. at 18. As indicated above, But-to’s deposition testimony does not reflect that she is unfamiliar with this case or that she has abdicated all responsibility to counsel. Further, it is unclear from Butto’s deposition testimony whether counsel failed to inform her of any settlement proposals. See Butto Tr. 50:16-25.
Plaintiffs counsel has ample experience to serve as counsel to a class certified under the FDCPA. Sergei Lemberg graduated from the University of Pennsylvania Law School in 2001. Decl. of Sergei Lemberg in Supp. of
B. Rule 23(b) Analysis
Under Rule 23(b)(3), before certifying a class, the Court must determine whether questions of law or fact predominate over the individual issues presented. Fed. R.Civ.P. 23(b)(3); Massey v. On-Site Manager, Inc.,
Defendant here argues that predominance is not satisfied, referring the Court to the same arguments it asserted on the issues of commonality and typicality. Def.’s Opp. at 19. These arguments consist of the potential differences in (i) the Verizon customer agreements and (ii) the collection letters sent by Defendant, and (iii) other “potential” individualized issues. Def.’s Opp. at 13. As noted, Plaintiff has provided copies of the Verizon Wireless customer agreements from 2006-2010 illustrating that these agreements have identical language pertaining to collection fees. See 2006-2010 Verizon Wireless Customer Agreements; Pl.’s Reply at 1. Plaintiff has also amended the definition of Class A to include as potential class members only those individuals who received collection letters “substantially similar” to the letter received by Plaintiff Butto. Thus, the Court finds that the issues regarding the substantially similar collection letters sent by Defendant predominate over any issues that are subject to individualized proof. Likewise, a class action here appears to be the superior method for the “fair and efficient adjudication” of a suit potentially involving over 18,-000 individuals with identical or nearly identical claims.
IV. Conclusion
For all of the foregoing reasons, this Court respectfully recommends to Judge Spatt that Plaintiffs Motion for Class Certification be DENIED with respect to Class B, but GRANTED with respect to Class A, as reflected in the amended definition:
Class A
All consumers in the State of New York who were sent a collection letter by Defendant substantially similar to the Letter sent to Plaintiff for a Verizon Wire*397 less account within one year prior to the filing of this action, and which was not returned as undeliverable, which letter included a collection fee for Verizon Wireless service which had not yet been incurred at the time the letter was sent.
See Pl.’s Reply at 3^4 (emphasis in original). The Court further recommends that Plaintiff Victoria Butto be appointed as Class A representative and that Lemberg & Associates, LLC, be appointed as class counsel.
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.CivP. 6(a) and (e). Such objections shall be filed with the Clerk of the Court via ECF. A courtesy copy of any objections filed is to be sent to the Chambers of the Honorable Arthur D. Spatt, and to the Chambers of the undersigned. Any requests for an extension of time for filing objections must be directed to Judge Spatt prior to the expiration of the fourteen (14) day period for filing objections. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn,
SO ORDERED.
Dated: February 16,2013
Notes
. Co-Plaintiff Lakesha Houser maintains only individual claims and is not a proposed class representative. Pl.’s Mem. of Law in Supp. of Class Cert. ("Pl.’s Mem.”), at 1 n. 1.
. During Butto’s deposition, she first denied having received a settlement offer from Defendant. Butto Tr. 50:16-18. Then, when asked if it would come as a surprise to her that Collecto had offered to pay her $1,001, Butto answered "no." Id. at 50:19-23. Then, when asked if she had heard of the settlement offer before, she answered "no.” Id., at 50:24-25.