MIDLAND FUNDING LLC, PLAINTIFF-APPELLEE, v. CASSANDRA COLVIN, DEFENDANT-APPELLANT.
CASE NO. 5-18-15
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
December 30, 2019
2019-Ohio-5382
PRESTON, J.
Appeal from Hancock County Common Pleas Court, Trial Court No. 2013-CV-459. Judgment Reversed and Cause Remanded.
APPEARANCES:
Ronald I. Frederick and Gregory S. Reichenbach for Appellant
H. Toby Schisler for Appellees, Midland Funding LLC, Midland Credit Management, Inc., and Encore Capital Group, Inc.
{¶1} Defendant/counterclaim-plaintiff/third-party-plaintiff-appellant, Cassandra Colvin (Colvin), appeals the June 12, 2018 judgment of the Hancock County Court of Common Pleas denying her motion for class certification. For the reasons that follow, we reverse.
{¶2} On April 22, 2013, plaintiff/counterclaim-defendant-appellee, Midland Funding LLC (Midland), filed a complaint against Colvin in the Hardin County Municipal Court. (Doc. No. 8). Midland alleged that Colvin had defaulted on a Chase Bank credit-card account, that it had purchased Colvin‘s delinquent account from Chase Bank, and that, despite Midland‘s informal efforts to collect the amount owing, Colvin failed to pay the balance due. (Id.). Midland requested judgment against Colvin in the amount of $950.60 along with other related relief. (Id.).
{¶3} On June 5, 2013, Colvin filed a motion to dismiss Midland‘s complaint. (Id.). In her motion, Colvin alleged that she lives in Hancock County, Ohio, and has never lived in Hardin County, Ohio. (Id.). In addition, she noted that Midland made no allegation that there was any contract signed in Hardin County, or any other connection to Hardin County. (Id.). Colvin thus argued that the Hardin County Municipal Court did not have subject-matter jurisdiction over Midland‘s action because Midland‘s action did not have a territorial connection to the court.
{¶4} On June 27, 2013, the Hardin County Municipal Court issued its ruling on Colvin‘s motion to dismiss. (Id.). The court found that Colvin at all times relevant lived in Hancock County, Ohio and that there does not appear to be any nexus to the territory over which [the Hardin County Municipal Court] has jurisdiction. (Id.). However, the court did not dismiss Midland‘s action outright. (Id.). Instead, the court transferred Midland‘s action to the Findlay Municipal Court at Midland‘s cost. (Id.).
{¶5} On September 3, 2013, after the case had been transferred to the Findlay Municipal Court, Colvin filed a combined answer to Midland‘s complaint, counterclaim against Midland, and third-party complaint adding third-party defendants-appellees, Midland Credit Management, Inc. (Midland Credit) and Encore Capital Group, Inc. (Encore), as third-party defendants.1 (Id.). In her counterclaim and third-party complaint, Colvin alleged that the Midland parties violated the federal Fair Debt Collection Practices Act (FDCPA) when Midland filed suit against her in the Hardin County Municipal Court because she did not reside within the territorial jurisdiction of the Hardin County Municipal Court at the time Midland filed its complaint and she did not sign the contract underlying her
{¶6} The same day that Colvin filed her answer, counterclaim, and third-party complaint, Colvin filed a motion to transfer the case to the Hancock County
{¶7} On November 7, 2013, the Midland parties filed their joint answer to Colvin‘s counterclaim and third-party complaint. (Doc. No. 20). On December 5, 2013, the Midland parties filed their amended joint answer to Colvin‘s counterclaim and third-party complaint. (Doc. No. 23).
{¶8} In March 2015, Colvin moved to consolidate her case with case number 2015-CV-94, Caitlin Gilbert v. Midland Funding LLC (Gilbert). See Gilbert v. Midland Funding, L.L.C., 3d Dist. Hancock No. 5-19-11, 2019-Ohio-5295, ¶ 5. On May 21, 2015, the trial court ordered that Colvin‘s case be consolidated with Gilbert for purposes of discovery. Id.
{¶9} On November 30, 2015, Colvin moved for leave to file an amended counterclaim/third-party complaint. (Doc. No. 68). On December 28, 2015, the Midland parties filed a memorandum in opposition to Colvin‘s motion for leave to file an amended counterclaim/third-party complaint. (Doc. No. 71). On January 15, 2016, the trial court granted Colvin‘s motion. (Doc. No. 73). On February 22, 2016, Colvin filed her amended counterclaim/third-party complaint. (Doc. No. 78). On March 4, 2016, the Midland parties filed their answer to Colvin‘s amended counterclaim/third-party complaint. (Doc. No. 79).
- All persons who have been sued in Ohio Courts by [the Midland parties] from April 22, 2012 until the time this class is certified;
- where the address on the face of the complaint and/or the address at which the Defendant was served are not within the geographical limits of the court where the suit was filed; or
- where [the Midland parties] filed suit in a court where the contract was not signed; and
- the debt alleged by [the Midland parties] was incurred for personal, family or household use.4
(Id.). On June 22, 2017, the Midland parties filed their memorandum in opposition to Colvin‘s motion for class certification.5 (Doc. No. 107). On July 14, 2017, Colvin filed a reply in support of her motion for class certification. (Doc. No. 108). On July 20, 2017, the Midland parties filed a reply memorandum in support of their motion to strike Colvin‘s class claims. (Doc. No. 109).
{¶12} On July 11, 2018, Colvin filed a notice of appeal. (Doc. No. 116). She raises two assignments of error for our review.
Assignment of Error No. I
The Trial Court abused its discretion in denying Ms. Colvin‘s motion for class certification based on the incorrect premise that her claims were not common or typical of the purported class and that she was not an adequate representative, because she has differing damages.
{¶13} In her first assignment of error, Colvin argues that the trial court abused its discretion by denying her motion for class certification. Colvin contends
{¶14}
(1) an identifiable class must exist and the definition of the class must be unambiguous; (2) the named representatives must be members of the class; (3) the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact common to the class; (5) the claims or defenses of the representative
parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequately protect the interests of the class; and (7) one of the three
Civ.R. 23(B) requirements must be met.
Id., quoting Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 71 (1998), citing
{¶15} A trial judge has broad discretion in determining whether a class action may be maintained and that determination will not be disturbed absent a showing of an abuse of discretion. Id. at ¶ 25, quoting Marks v. C.P. Chem. Co.,Inc., 31 Ohio St.3d 200, 201 (1987). [T]he appropriateness of applying the abuse-of-discretion standard in reviewing class action determinations is grounded not in credibility assessment, but in the trial court‘s special expertise and familiarity with case-management problems and its inherent power to manage its own docket. Hamilton at 70. Abuse of discretion has been defined as more than an error of law or judgment; it implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable. Stammco II at ¶ 25, quoting Marks at 201, citing Ojalvo v. Bd. of Trustees of Ohio State Univ., 12 Ohio St.3d 230, 232 (1984). A finding of abuse of discretion, particularly if the trial court has refused to certify, should be made cautiously. Id., quoting Marks at 201.
{¶16} However, the trial court‘s discretion, while expansive, is not unlimited, and indeed is bounded by and must be exercised within the framework of
{¶17} In this action, Colvin maintains that the Midland parties’ litigation activities against putative class members violated the FDCPA. Congress enacted the FDCPA * * * to eliminate abusive debt collection practices, to ensure that debt collectors who abstain from such practices are not competitively disadvantaged, and
Consumer debts covered by the [FDCPA] are usually too small to justify a lawsuit unless the suit is promptly defaulted, thereby enabling the debt collector to obtain—without incurring significant litigation cost—a judgment that it can use to garnish the debtor‘s wages. * * * [O]ne common tactic for debt collectors is to sue in a court that is not convenient to the debtor, as this makes default more likely; or in a court perceived to be friendly to such claims; or, ideally, in a court having both of these characteristics. In short, debt collectors shop for the most advantageous forum. By imposing an inconvenient forum on a debtor who may be impecunious, unfamiliar with law and legal processes, and in no position to retain a lawyer (and even if he can
afford one, the lawyer‘s fee is bound to exceed the debt itself), the debt collector may be able to obtain through default a remedy for a debt that the defendant doesn‘t actually owe.
Suesz v. Med-1 Solutions, LLC, 757 F.3d 636, 638-639 (7th Cir. 2014). Accordingly, Congress included a fair-venue provision in the FDCPA to combat abusive forum shopping. Taylor at ¶ 72. See
(1) any actual damage sustained by such person [or persons] as a result of such failure;
(2)(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney‘s fee as determined by the court.
{¶18} In its judgment denying Colvin‘s motion for class certification, the trial court concluded that the proposed class is identifiable, unambiguously defined, and sufficiently numerous. (Doc. No. 115). The trial court also concluded that Colvin is a member of the proposed class. (Id.). None of these conclusions is before this court for review. Instead, in this appeal, Colvin argues only that the trial court abused its discretion by concluding that the commonality, typicality, and adequacy-of-representation prerequisites to class certification are not satisfied. See
{¶20} Commonality may be found where the basis for liability is common to the proposed class or where a common factual question exists on issues of negligence, breach of contract, illegal practice, or other applicable causes of action[.] Berdysz at ¶ 29, quoting Grant v. Becton Dickinson & Co., 10th Dist. Franklin No. 02AP-894, 2003-Ohio-2826, ¶ 36. Courts generally have given a
{¶21} In determining that the proposed class fails to satisfy the commonality requirement, the trial court observed:
[T]here are different questions of law and facts between Colvin and the proposed class members. Colvin‘s suit was transferred to the correct jurisdiction after it was shown that the original suit was improperly filed and is still pending. Colvin has not had judgment rendered against her or been subject to any collection efforts. These facts do not match the majority, if any, of the proposed class members. Despite Colvin‘s contentions, it is not the difference in possible damages alone that make her different from the rest of the proposed class members. Significant factual differences exist between her situation and the rest of the class.
(Doc. No. 115).
{¶22} We conclude that the trial court erred when it decided that the proposed class fails to satisfy the commonality requirement. First, we note that, at least for purposes of determining whether the proposed class satisfies the commonality requirement, the trial court should not have compared Colvin‘s individual circumstances to the circumstances of absent members of the proposed
{¶23} More importantly, the particular dissimilarities between Colvin and other members of the proposed class identified by the trial court are not meaningful at this stage in the class-certification analysis. While the trial court found that [s]ignificant factual differences exist between [Colvin‘s] situation and the rest of the class, it failed to pinpoint any of these differences, other than noting that Midland‘s action against Colvin was transferred from the allegedly improper venue, that judgment has not been entered against Colvin, and that she has not had her wages or bank account garnished. (Doc. No. 115). The differences the trial court highlighted are relevant only to a determination of the damages to which Colvin may be entitled as compared to the damages to which absent class members may be entitled. For purposes of the fair-venue provision, the violation and injury occurs as soon as the debt collector brings the lawsuit in the improper forum, in other words the moment the complaint is filed. Hill v. Freedman Anselmo Lindberg, LLC, N.D.Ill. No. 14 C 10004, 2015 WL 2000828, *2 (May 1, 2015), quoting Komisar v. Blatt, Hasenmiller, Leibsker & Moore LLC, N.D.Ill. No. 14 C 7948, 2015 WL 427845, *2 (Jan. 29, 2015); McInerney v. Roosen Varchetti & Olivier PLLC, E.D.Mich. No. 17-10037, 2017 WL 4778724, *4 (Oct. 23, 2017) (By its terms, a violation of [1692i] occurs when a lawsuit is initiated in an improper venue.). Contra Orellana-Sanchez v. Pressler & Pressler, LLP, D.N.J. No. 12-6309, 2015 WL 532517, *6 (Feb. 6, 2015) ([A] violation does not arise under § 1692i(a)(2) until the alleged debtor receives notice of the suit and is forced to respond.). Therefore, provided that the Midland parties did in fact file suit against Colvin and the rest of the proposed class in improper venues, Colvin and the rest of the proposed class suffered the exact same, complete injury as soon as suit was filed against them.
{¶24} Although absent members of the proposed class may have incurred litigation expenses that they would not otherwise have incurred had suit been filed against them in the correct venue or paid money to the Midland parties to satisfy judgments entered against them in improper venues, because each member of the proposed class allegedly sustained an identical injury, these potential differences between Colvin and absent class members pertain only to the severity of the injuries suffered and, accordingly, to the damages to which absent class members may be entitled for more-severe injuries as compared to the damages to which Colvin may be entitled for her apparently less-severe injury. Ultimately, a trial court should
{¶25} By focusing on the shared attributes of the proposed class, rather than the differences between Colvin and the rest of the class, we have little difficulty concluding that the proposed class satisfies the commonality requirement. As discussed in the previous paragraph, Colvin and the rest of the proposed class allegedly suffered the same injury when the Midland parties filed suit against them in supposedly improper venues. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-350, 131 S.Ct. 2541 (2011) (Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury * * *.), quoting Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364 (1982). Moreover, the basis for liability,
{¶26} Furthermore, Colvin has sufficiently alleged that the Midland parties have engaged in a pattern of filing suit against class members in jurisdictions where class members did not reside at the time suit was filed and where class members did not sign the contracts underlying their alleged debts. Colvin has also satisfactorily alleged that a common practice is responsible for the Midland parties’ alleged
{¶27} Therefore, the common question of fact is whether the Midland parties actually filed suit against Colvin and the rest of the class in jurisdictions in which Colvin and other class members did not reside at the time suit was filed and in which they did not sign any contract underlying their alleged debts; the common issue of law is whether the Midland parties’ pattern of filing suit in such jurisdictions, if proven, resulted in violations of the FDCPA. See Tedrow v. Cowles, S.D.Ohio No. 2:06-cv-637, 2007 WL 2688276, *6-7 (Sept. 12, 2007); Holloway v. Pekay, N.D.Ill. No. 94 C 3418, 1995 WL 736925, *2 (Dec. 11, 1995). These questions of law and fact are central to [Colvin‘s] and to the proposed class‘[s] claims, * * * and resolution of them will unquestionably affect a significant number of the proposed
{¶28} Having concluded that the trial court erred by determining that the proposed class fails to satisfy the commonality requirement, we now consider whether the trial court erred by holding that Colvin‘s claims and defenses are not typical of the claims and defenses of the proposed class.
As with commonality, Colvin fails to meet [the typicality] prong. Her claim is limited to the actions of Midland filing a complaint against her in the wrong jurisdiction, a problem later rectified. In comparison, other potential class members have had judgments taken against them and been subject to collection activities. Their range of potential damages far exceeds those of Colvin. Colvin argues that her different circumstances are no bar to representation of the class because her claim arises out of the same conduct by [the Midland parties] as all other class members. Despite her arguments and citations to the contrary, it is clear that her injury is different than the rest of the class members, irrespective of the fact that she meets the class definition.
(Doc. No. 115).
{¶30} We conclude that the trial court erred by determining that Colvin cannot satisfy the typicality requirement. In its typicality analysis, the trial court committed an error similar to the one it made in its examination of the commonality requirement—concluding that Colvin‘s alleged injury is different from the alleged injuries of the rest of the class members. As explained in our analysis of the commonality requirement, the injury suffered by an alleged debtor due to a violation of the
{¶31} However, while the trial court incorrectly determined that Colvin‘s alleged injury is different from the injuries allegedly sustained by the rest of the class, the trial court correctly observed that the “range of potential damages [for absent class members] far exceeds those of Colvin.” (Doc. No. 115). As Colvin concedes, because Midland‘s action against her was quickly transferred and because she has not had judgment entered against her, she seeks only statutory damages for herself. (Appellant‘s Brief at 3); (Doc. No. 106). As a result, her individual potential recovery is capped at $1,000—a sum that is considerably less than the potential recoveries of those class members with actual damages. See
{¶33} Still, the Midland parties contend that other differences between Colvin and the rest of the proposed class make Colvin atypical of the class. The Midland parties argue that Colvin cannot satisfy the typicality requirement because she is subject to defenses that are different from the defenses of absent members of the proposed class. (Appellees’ Brief at 10-11). They maintain that “[t]he impact of the res judicata defense from prior lawsuits between the Midland Parties and the proposed class members would, by itself, create atypical circumstances sufficient to preclude class certification.” (Id. at 10). The Midland parties also suggest that the
{¶34} The Midland parties’ arguments are without merit. “‘The defenses * * * of the class representatives must be typical of the defenses * * * of the class members.‘” Baughman, 88 Ohio St.3d at 485, quoting Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 64 (1990). However, “‘[t]hey need not be identical.‘” (Emphasis sic.) Id., quoting Project Jericho at 64. “‘[A] unique defense will not destroy typicality * * * unless it is “so central to the litigation that it threatens to preoccupy the class representative to the detriment of the other class members.“‘” Id. at 487, quoting Hamilton, 82 Ohio St.3d at 78,
{¶35} Here, the res judicata and bona fide error defenses are unlikely to preoccupy Colvin to the detriment of the rest of the proposed class. Concerning the defense of res judicata, the Midland parties rightly point out that the defense is almost certainly inapplicable to Colvin because the action originally filed in the Hardin County Municipal Court by Midland against Colvin has not yet resulted in a final judgment. (See Doc. Nos. 105, 109); (Appellees’ Brief at 7, 10). However, while Colvin is probably not subject to the defense of res judicata, she is not atypical of the class because the defense is likely inapplicable to many, if not the majority, of the members of the proposed class.
{¶36} “‘“The doctrine of res judicata encompasses the two related concepts of claim preclusion, also known as res judicata or estoppel by judgment, and issue preclusion, also known as collateral estoppel.“‘” Crown Chrysler Jeep, Inc. v. Boulware, 10th Dist. Franklin No. 15AP-162, 2015-Ohio-5084, ¶ 18, quoting State ex rel. Schachter v. Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1704, ¶ 27, quoting O‘Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, ¶ 6. The concept germane to this case, claim preclusion, “‘prevents subsequent actions, by the same parties or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous action.‘”
{¶37} “[T]he Ohio Supreme Court has identified four elements necessary to bar a claim under the doctrine of res judicata: (1) there is a final, valid decision on the merits by a court of competent jurisdiction; (2) the second action involves the same parties or their privies as the first; (3) the second action raises claims that were or could have been litigated in the first action; and (4) the second action arises out of the transaction or occurrence that was the subject matter of the previous action.” State ex rel. Dept. of Edn. v. Ministerial Day Care, 8th Dist. Cuyahoga No. 103685, 2016-Ohio-8485, ¶ 14, citing Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, ¶ 84, quoting Hapgood v. Warren, 127 F.3d 490, 493 (6th Cir.1997) (construing Grava v. Parkman Twp., 73 Ohio St.3d 379 (1995)). The Supreme Court of Ohio has defined “transaction” as a “‘common nucleus of operative facts.‘” Grava at 382, quoting 1 Restatement of the Law 2d, Judgments, Section 24, Comment b (1982).
{¶38} Turning to the facts of this case, the doctrine of res judicata is likely inapplicable to a substantial percentage of the members of the proposed class because putative class members’
[The plaintiff] certainly could—and should—have raised improper venue as a defense in the underlying [debt collection] action. But * * * the venue defense would not have gone to the validity or collectability of the debt itself. Rather, its effectiveness would have been limited to forcing a transfer of the underlying action to, or a refiling of the underlying action in, the proper venue. * * * [T]he question of proper venue does not share a “common nucleus of
operative fact” with the question of the validity of the debt itself * * *.
(Citations omitted.) Frazier at 903-904. A number of additional courts, both in Ohio and in other jurisdictions, have reached similar conclusions with respect to other provisions of the
{¶39} In this case, the Midland parties’ collection actions against Colvin and the rest of the proposed class were based on class members’ alleged use of credit cards, resulting in alleged debts to various credit card issuers, and class members’ alleged failure to pay these debts, which the Midland parties had purchased from the credit card issuers who originated the debts. In contrast, the instant action
{¶40} Next, we consider the extent to which Colvin‘s susceptibility to the
A debt collector may not be held liable in any action brought under [15 U.S.C. 1692 et seq.] if the debt collector shows by a
preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
”
{¶41} In the instant case, the bona fide error defense does not make Colvin‘s defenses atypical, at least with respect to a segment of the proposed class. The lead attorney of record who filed the complaint against Colvin in the Hardin County Municipal Court hailed from Midland‘s in-house legal team. (See Doc. No. 8). This same attorney, Kimberly Klemenok (“Klemenok“), filed complaints against at least 50 members of the proposed class. (See Nov. 5, 2015 Tr., Colvin‘s Ex. A). In her deposition, Klemenok described the procedures that Midland‘s Ohio-based in-house attorneys used to determine where to sue alleged debtors. Klemenok testified that all lawsuits that Midland itself files in the state of Ohio, as opposed to lawsuits filed on behalf of Midland by outside counsel, are filed out of Midland‘s offices in Cleveland. (Kimberly Klemenok‘s Feb. 4, 2015 Depo. at 24). There, the process of filing suit against an alleged debtor began with a team of legal specialists that prepared and assembled the documents necessary to file suit. (Id. at 39). To determine where to file suit against alleged debtors, the legal specialists
{¶42} Once this process was concluded, completed lawsuits were then forwarded by the legal specialists to Klemenok. (Id. at 39). Klemenok testified that, before filing the lawsuits, she used Midland‘s internal database, Q-Law, to “review every fact pertinent to the lawsuit, starting with the consumer‘s address; making sure it‘s in the correct court * * *.” (Id. at 40). According to Klemenok, she
[l]ook[ed] at the consumer address in the system. Venue[] [had] already been checked at this point by [the] team of legal specialists trained to check venue and trained in the
FDCPA . [She] just look[ed] for things that may [have] be[en] incorrect. [She] ma[de] sure that the address in the system matche[d] the address in the Complaint. [She] ma[de] sure that the address on the Complaint[was] complete and that the court line[d] up with the consumer‘s address.
(Id. at 41-42). Klemenok observed that, in making the venue determination, “[a] lot of it [was] just obvious. * * * [I]f you ha[d] one court caption, if [she] file[d] in one county, and [she] kn[ew] that the city is another county, that [was] wrong. [They were] going to reject the suit.” (Id. at 42). However, she stated that when discrepancies were not obvious, she had to “rely on the people below [her], that the legal specialists follow procedure for checking venue and that [it was] correct.” (Id.). Finally, though Klemenok was able to describe the procedures used by Midland‘s internal legal team, she was not able to detail the processes that outside attorneys use to file suit on behalf of Midland. (See id. at 56).
{¶43} Throughout the proceedings in this case, Colvin has not contended that the Midland parties intentionally filed suit against putative class members in improper venues. (See Doc. Nos. 106, 108). Consequently, the only real issue to be litigated with respect to the Midland parties’ possible bona fide error defenses is whether the Midland parties maintain procedures reasonably adapted to avoid filing suit against alleged debtors in improper venues. As suggested by Klemenok‘s deposition testimony, concerning members of the proposed class who were sued by the Midland parties’ in-house legal team, the same process was employed to ascertain the appropriate venue in which to file suit. Therefore, by determining
{¶44} However, it is likely that the same cannot be said of the bona fide error defenses that the Midland parties may assert against members of the proposed class who were sued by outside counsel on behalf of the Midland parties. This is because the procedures used to decide where to file lawsuits might differ between the Midland parties’ in-house attorneys and the Midland parties’ outside counsel. Nevertheless, while the bona fide error defense to which Colvin might be subject may not be typical of the bona fide error defenses to which members of the proposed class who were sued by outside counsel may be subject, this does not necessitate a conclusion that Colvin is completely unable to satisfy the typicality requirement. Rather, under the particular circumstances of this case, it would be appropriate to slightly modify the class definition to include only those alleged debtors sued by the Midland parties’ internal legal team working in Cleveland. See Shaver v. Standard Oil Co., 68 Ohio App.3d 783, 796 (6th Dist.1990) (concluding that “the trial court
{¶45} To summarize, although Colvin is claiming only statutory damages, her claims are not atypical of the claims of class members who may be entitled to both statutory damages and actual damages. Furthermore, the fact that Colvin is not subject to the defense of res judicata does not make her atypical of the class because res judicata is likely inapplicable to many members of the proposed class as well. Similarly, the bona fide error defense that the Midland parties may assert against Colvin is not atypical of the bona fide error defenses that the Midland parties may assert against class members who were sued by the Midland parties’ internal legal department. Ultimately, Colvin‘s
{¶46} Finally, we consider whether the trial court erred by concluding that Colvin cannot fairly and adequately protect the interests of the proposed class as required by
{¶47} Regarding
As stated above in considering commonality and typicality, Colvin‘s circumstances are significantly different than that of the rest of the proposed class members. This Court agrees with Colvin‘s legal precedent that differences which are not antagonistic may be deemed adequate, but such significant factual disparities create antagonisms in this particular case. Colvin has not had judgment rendered against her and has not faced the same injuries as the rest of the class. This distinction is significant because the remedies to which she may be entitled are significantly different than those who have already had judgment rendered against them.
Accordingly, Colvin is unable to adequately represent the interests of the class.
(Doc. No. 115).
{¶48} As with the commonality and typicality requirements, we conclude that the trial court erred by determining that Colvin cannot satisfy the adequacy-of-representation requirement. In its analysis of the adequacy-of-representation requirement, the trial court only discussed Colvin‘s supposed inadequacy as class representative; it did not conduct an analysis to determine whether Colvin‘s counsel is adequate. Therefore, our analysis of the adequacy-of-representation requirement will focus solely on Colvin‘s adequacy as class representative.
{¶49} In its analysis of the adequacy-of-representation requirement, the trial court again erred by concluding that Colvin‘s injury is not the same injury suffered by the rest of the proposed class. As explained earlier, Colvin and the rest of the proposed class allegedly suffered the same injury when the Midland parties filed suit against them in purportedly improper venues. All of the “factual disparities” identified by the trial court pertain only to differing damages between Colvin and the rest of the class, not differing injuries, and there is no indication in the record that Colvin is unable to fairly and adequately protect the interests of class members with claims to both actual damages and statutory damages simply because she is seeking only statutory damages. See Petrolito, 221 F.R.D. at 310.
{¶51} Likewise, in Shaver, the Sixth District Court of Appeals concluded that the proposed class representative, a former gasoline dealer, could not adequately represent a class composed of both current gasoline dealers and former gasoline dealers against a defendant oil company. 68 Ohio App.3d at 795-796. The
{¶52} Antagonisms like those in Amchem and Shaver are not present in this case because Colvin‘s interests are entirely aligned with the interests of the rest of the proposed class. Colvin and the rest of the proposed class all seek a declaration that the Midland parties violated the
{¶53} In sum, we conclude that the trial court erred by holding that
{¶54} Colvin‘s first assignment of error is sustained.
Assignment of Error No. II
Even if Ms. Colvin‘s claims were not common and typical of class members claiming recovery for actual damages and, therefore, she was not an adequate representative for this subclass, the Trial Court abused its discretion by denying Ms. Colvin‘s motion for class certification with respect to those class members claiming only statutory damages.
{¶56} Having found error prejudicial to the appellant herein in the particulars assigned and argued, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed and Cause Remanded
ZIMMERMAN, P.J. and SHAW, J., concur.
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