OPINION AND ORDER
I. INTRODUCTION
Plaintiffs Darla Stewart and George Lexington filed this class-action lawsuit against Defendants Cheek & Zeehandelar, LLP, a law firm; Emerson Cheek, a principal at the firm; and Krishna Velayudhan, an attorney associated with the firm (collectively, “Cheek & Zeehandelar”). Plaintiffs claim that Cheek & Zeehandelar has engaged in misleading and deceptive business practices in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), and Ohio’s Consumer Sales Practices Act, Ohio Revised Code (“O.R.C.”) § 1345.01 (“CSPA”). In particular, Plaintiffs allege that Cheek & Zeehandelar seeks to garnish or attach the property of Ohio consumers who have defaulted on credit and loan agreements, without having first investigated the nature of the debtors’ property to determine if it is legally exempt from garnishment or attachment.
II. BACKGROUND
A. Plaintiffs’ Allegations
Cheek & Zeehandelar is a Columbus, Ohio based law firm that primarily litigates collection actions, meaning that it works to collect on consumers’ unpaid debts. Cheek & Zeehandelar does this in part by petitioning the courts to issue writs of attachment over the bank accounts of consumers who have allegedly defaulted on consumer payment obligations owed to Cheek & Zeehandelar’s clients. Plaintiffs allege that through the use of standardized and uniform policies and practices, Cheek & Zeehandelar seeks writs of attachment by representing to Ohio courts that it has “good reason to'believe and does believe [that the debtor’s bank account] has property other than [the debtor’s] personal earnings.” In fact, plead Plaintiffs, Cheek & Zeehandelar makes these representations without regard to their truth or falsity because, pursuant to its standard business practices, Cheek & Zeehandelar routinely fails to investigate the nature of the property it seeks to attach.
Under Ohio law, a judgment creditor may institute a proceeding for garnishment of property by filing an affidavit identifying the judgment debtor and stating that the affiant “has a reasonable basis to believe that the person named in the affidavit as the garnishee may have property, other than personal earnings, of the judgment debtor that is not exempt under” either Ohio or federal law.
B. The Defendants
Defendant Cheek oversees his firm’s consumer collections department. Defendant Velayudhan is one of the attorneys in this department who, along with Cheek, regularly executes affidavits to attach the property of purported debtors, and in doing so, affirms that he has a reasonable basis to believe that the property is not exempt from attachment. The consumer-collections department primarily collects on credit-card debts and defaulted promissory notes. It has filed cases in all of Ohio’s eighty-eight counties.
Velayudhan testified that the firm had a standard protocol in place for processing the garnishment affidavits he signed. Administrative staff at Cheek & Zeehandelar prepared the affidavits for his review and signature. Velayudhan reviewed the files of each debtor with an eye towards spotting any red flags suggesting that filing the affidavit would be improper. These red flags included such things as whether the debtor was deceased, had filed for bankruptcy, or had funds exempt from attachment under Ohio or federal law. To identify exempt property or funds, Velayudhan looked through the file for evidence that the debtor was employed, owned property, or contacted the firm to explain that the property or funds were exempt. Velayudhan testified that he never personally contacted the debtors to deter
C. The Plaintiffs
Plaintiff Stewart is a kindergarten teaching assistant. Cheek & Zeehandelar initiated a collection action against her in Ohio state court. Although the court had served Stewart with notice of the suit, she did not realize its importance, and set the notice aside. Cheek & Zeehandelar obtained a default judgment against her on May 10, 2006.
On May 16, 2006, Velayudhan signed an affidavit affirming that he had “good reason to believe and d[id] believe that [Century National Bank] may have property other than personal earnings of [Darla J. Stewart] that is not exempt under the laws of the State of Ohio or the United States.” In reliance on Velayudhan’s affidavit, the state court issued a writ of attachment for Stewart’s checking and savings accounts on May 23, 2006. Stewart and her husband learned what had happened when they were prevented from withdrawing money from their checking account. Stewart responded by hiring an attorney to contest the attachment of her accounts. On June 9, 2006, the state court issued an order finding that $555.15 of the $681.30 in her checking account constituted exempt personal earnings that had to be restored to her.
Plaintiff George Lexington served in the United States military, from which he was honorably discharged. Beginning in 2002 or 2003, he began receiving disability benefits from the Department of Veterans’ Affairs. When Cheek & Zeehandelar contacted him about paying off his defaulted debt, Lexington told the firm that his only source of income was his VA benefits. Nonetheless, Lexington agreed to pay what he could, $50 a month, to extinguish the debt. This arrangement continued for some period of time. Lexington testified at his deposition that if he was short a month, he would notify Cheek & Zeehandelar of this and then work to make up the shortage in subsequent payments. Ultimately, though, after Lexington missed two payments, Velayudhan filed an affidavit on May 24, 2006, affirming that he had “good reason to believe and d[id] believe that the Andover Bank [] may have property other than personal earnings of the Judgment Debtor that is not exempt under the laws of the State of Ohio or the United States.” The state court issued the attachment order and Lexington’s bank account was swept. He thereafter enlisted the assistance of Legal Aid and on July 11, 2006, the state court issued an order finding that the funds in the attached bank account were Lexington’s VA benefits and were therefore exempt from attachment. The court ordered the funds returned to Lexington and his bank account released.
Plaintiffs now move for class certification.
III. ANALYSIS
A. Legal Standards
Federal Rule of Civil Procedure 23 governs class actions. A plaintiff seeking class certification bears the burden of establishing compliance with all four requirements of Rule 23(a), referred to by the shorthand of “(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy.” Fed.R.Civ.P. 23(a); Alkire v. Irving,
As described above, Plaintiffs seek certification of a proposed class under Rule 23(b)(2), and certification of a proposed subclass under Rule 23(b)(3). The primary distinction between (b)(2) and (b)(3) classes is in the relief sought: Rule 23(b)(2) classes are confined to declaratory and injunctive relief actions (with certain limited exceptions discussed below), whereas Rule 23(b)(3) classes apply to damages actions. Reeb v. Ohio Dep’t of Rehab. & Corr., Belmont Corr. Inst.,
In this section, the Court will consider the propriety of certifying Plaintiffs’ proposed (b)(2) class. In section C below, the Court will turn to whether Plaintiffs’ proposed (b)(3) subclass should be certified.
1. Rule 23(a)
Under Rule 23(a), Plaintiffs must show that the proposed class is precisely defined and ascertainable. In addition, Plaintiffs must satisfy each of the Rule’s four enumerated requirements.
(a) Ascertainability
Ascertainability goes to whether the class has been defined such that it encompasses an identifiable group. Although this requirement is not expressly spelled out in Rule 23(a), it has been implied by courts. Kurihara v. Best Buy Co., No. 06-01884,
Here, Plaintiffs’ proposed class is defined as
all consumers who have been subject to an order of garnishment or attachment of exempt property or funds, whether temporary or permanent, based on an affidavit signed by any principal, partner, or employee of defendant Cheek & Zeehandelar, at any time on or after August 24, 2004.
The problem with this definition is that membership in the class cannot be determined except through individualized factual inquiries. The Court would have to resolve whether the property or funds of each putative class member was actually exempt from garnishment or attachment just to determine whether that person is included within the class. To do so, the Court would have to come up with a mechanism for contacting all persons who had been subject to an order of garnishment or attachment as a result of a garnishment affidavit filed by Cheek & Zeehandelar, afford them an opportunity to submit relevant documents establishing that their property or funds were exempt at the time the affidavit was filed, and then carefully review all this information and make case-by-case determinations regarding who is a member of the class. For these reasons, Plaintiffs’ proposed class definition is unworkable.
Since courts are less exacting about enforcing the ascertainability requirement with respect to (b)(2) classes, the Court could perhaps overlook the flaw in Plaintiffs’ class definition. The better practice, however, is for the Court simply to exercise its discretion to modify the class definition to eliminate any reference to “exempt property or funds.” See, e.g., Powers,
all consumers who have been subject to an order of garnishment or attachment, whether temporary or permanent, based on an affidavit signed by any principal, partner, or employee of defendant Cheek & Zeehandelar, at any time on or after August 24, 2004.
This revised class definition is precise, objective, and ascertainable based on records in Cheek & Zeehandelar’s possession establishing against whom it procured orders of garnishment or attachment.
Besides ensuring that the Court will not be overwhelmed with individualized mini-hearings, modifying the class definition is appropriate for a second reason. Plaintiffs’ central allegation is that Cheek & Zeehandelar has engaged in a common course of conduct of failing to perform an adequate investigation prior to attesting to courts that the property it seeks to attach is not exempt from such attachment under either Ohio or federal law. Since Plaintiffs seek to certify a(b)(2) class and enjoin Cheek & Zeehandelar from persisting in this faulty business practice, it makes sense to broaden the class to all those who have been subject to an order of garnishment or attachment at the instigation of Cheek & Zeehandelar, irrespective of whether the property sought to be attached is exempt or not. That is, because Plaintiffs’ objective is to get Cheek & Zeehandelar to conduct an adequate investigation into the exempt or non-exempt status of debtors’ property before filing garnishment affidavits, “it is proper and desirable to define [the] class ... to encompass the entire class of persons affected,” which here means all those who have been subject to an order of garnishment or attachment at the behest of Cheek & Zeehandelar. Hohider,
(b) Numerosity
Rule 23(a) says that the class must be “so numerous that joinder of all members is impracticable.” There is “no strict numerical test” that Plaintiffs must meet to satisfy this requirement. Thrope v. Ohio,
The Court has no trouble concluding that the numerosity requirement is satisfied here. Cheek & Zeehandelar’s consumer-collection practice is statewide and Velayudhan testified that he signs between thirty and forty garnishment affidavits each business day. Moreover, Cheek & Zeehandelar has already produced to Plaintiffs 1,236 of these affidavits. This evidence is sufficient to satisfy the numerosity requirement.
(c) Commonality
The second criterion of Rule 23(a) requires that the case present issues of law or fact common to the class. “[T]here need only be one question common to the class, [but] that question must be a ‘common issue the resolution of which will advance the litigation.’” Alkire,
The overriding common question presented by this case is whether Cheek & Zeehandelar breached its legal duties under the FDCPA and Ohio’s CSPA by filing garnishment affidavits against class members without undertaking a proper investigation into the exempt or non-exempt status of class members’ property. The resolution of that question will advance the litigation by either establishing or relieving Cheek & Zeehandelar of its alleged liability. The Court therefore finds that Plaintiffs satisfy Rule 23(a)(2)’s commonality requirement.
(d) Typicality
Under Rule 23(a)(3), “the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). “To satisfy the typicality requirement, the representative plaintiffs interests must be aligned with those of the class.” Powers,
Here, Plaintiffs’ claims are typical of those of the class as a whole because Plaintiffs allege that Cheek & Zeehandelar engaged in unlawful business practices by filing garnishment affidavits without adequately inquiring into the exempt or non-exempt nature of debtors’ property or funds. Because “[t]his is the same allegation any other class member would bring against [Cheek & Zeehandelar], ... resolution of [Cheek & Zeehandeler’s] liability under [the FDCPA and the CSPA] with regards to [Plaintiffs’] claim will also resolve the [firm’s] liability as to claims brought by other class members.” Beattie,
(e) Adequacy
“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods. v. Windsor,
Cheek & Zeehandelar does not dispute that Plaintiffs and their counsel have carried their burden with respect to the adequacy requirement, and with good reason. The declaration of attorney Edward Icove shows that he has substantial experience litigating consumer class actions in both state and federal courts. Attorney Amy Gullifer is also experienced in consumer class actions. The Court further observes that to date Plaintiffs’ counsel’s work in this case has been excellent. Plaintiffs have filed an amended complaint, which Cheek & Zeehandelar did not challenge through a motion to dismiss. Plaintiffs have also successfully resisted Cheek & Zeehandelar’s efforts to moot their
Plaintiffs Stewart and Lexington have shown that they too will vigorously litigate the ease to advance the interests of the class. Both have submitted declarations affirming that they understand the responsibilities of a class representative and are willing and able to undertake these responsibilities.
For these reasons, the Court finds that the adequacy requirement is satisfied.
2. Rule 23(b)
Certification under Rule 23(b)(2) is proper where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(2) class actions are reserved for those predominantly seeking declaratory and/or injunctive relief. Karnette,
Cheek & Zeehandelar argues that Plaintiffs are primarily seeking actual damages and that therefore (b)(2) certification is unavailable. The Court disagrees. Although Plaintiffs do request actual damages pursuant to both the FDCPA and Ohio’s CSPA, they seek certification of these claims under Rule 23(b)(3), not (b)(2). Moreover, Plaintiffs are broadly challenging the lawfulness of Cheek & Zeehandelar’s business practice of filing form garnishment affidavits without properly inquiring into the status of the property purportedly subject to garnishment or attachment. Plaintiffs’ primary goal, therefore, is to obtain a declaration that Cheek & Zeehandelar has engaged in deceptive and misleading business practices, and to force Cheek & Zeehandelar to comply with its legal duties. The Court finds that Plaintiffs’ money damages claims do not predominate over their equitable-relief claims and that certification under Rule 23(b)(2) is proper.
Following the lead of the many other courts who have considered the issue, the Court will also certify Plaintiffs’ FDCPA statutory-damages claims under (b)(2). Ac
Finally, this Court would be remiss were it not to address two other recent cases decided in this District, at first blush similar to this one, in which class certification was denied. In both Lee v. Javitch, Block & Rathbone, LLP,
It is to Plaintiffs’ proposed (b)(3) sub-class that the Court now turns.
C. Certification of Plaintiffs’ Proposed Class Under Rule 23(b)(3)
Rule 23(b)(3) imposes two requirements that are not part of (b)(2) classes. First, Plaintiffs must show that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). Second, Plaintiffs must establish “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. “To satisfy the predominance requirement ... a plaintiff must establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, ... predominate over those issues that are subject only to individualized proof.” Beattie,
Plaintiffs propose certifying a(b)(3) sub-class defined as
all consumers whose exempt property or funds were attached or garnished, temporarily or permanently, based on an affidavit signed by any principal, partner, or employee of defendant Cheek & Zeehandelar at any time on or after August 24, 2004.
It’s easy to see that this sub-class definition suffers from the same defect as Plaintiffs’ proposed class definition: The inclusion of the word “exempt” makes it impossible to ascertain who is a member of the class without examining the unique circumstances of each putative class member to determine whether his or her attached or garnished property was exempt under either federal or state law. As already described, this would be a laborious process that would eliminate the benefits of litigating Plaintiffs’ claims in a class action.
Further, modifying the sub-class definition, as the Court did with Plaintiffs’ proposed class, will not save it. Even if the Court were to delete the term “exempt,” so that the sub-class was defined as “all consumers
Plaintiffs minimize this concern by contending that a claims-processing mechanism will efficiently identify which class members’ property was exempt and how much in damages they are owed. Plaintiffs say that “[f]or instance, by presenting a Social Security award letter and bank account statement, a class member can demonstrate that [he] or [she] had exempt funds in [his] or [her] account, while proving the amount of exempt funds wrongfully garnished and the associated bank charges.” Plaintiffs overstate the ease and ability of such a claims process to eliminate the manageability problems associated with the individual issues present here. If the individual damages issues raised with respect to Plaintiffs’ (b)(3) class could be resolved through a mathematical formula or through consulting identical written records applicable to each class member, a claims process might be appropriate. In re Genetically Modified Rice Litig.,
For these reasons, the Court declines to certify Plaintiffs’ (b)(3) damages claims. However, it is worth noting that if Plaintiffs prevail on their certified (b)(2) liability claims, class members will be able to take the resulting judgment against Cheek & Zeehandelar and use it as a basis for recovering their individual damages in their own lawsuits. See e.g. Hiser v. Franklin,
For the reasons described above, the Court GRANTS Plaintiffs’ motion to certify the proposed Rule 23(b)(2) class, as modified, and DENIES Plaintiffs’ motion to certify the proposed (b)(3) sub-class.
IT IS SO ORDERED.
Notes
. The statute was recently amended by the Ohio Legislature and the new version, which will become effective on September 30, 2008, dispenses with the "reasonable basis” requirement. Thus, judgment creditors will no longer have to aver that they have "a reasonable basis to believe” that the judgment debtor's property is not exempt under Ohio and federal law. Under the new law, judgment creditors will need only identify the judgment debtor, provide a description of the property, and identify the garnishee who may have or control the property of the judgment debtor.
. In their complaint, Plaintiffs request declaratory and injunctive relief pursuant to Ohio's CSPA, not the FDCPA. Based on the statutory text of the FDCPA, it appears as though injunctive relief is not authorized, but "numerous FDCPA class actions seeking declaratory relief have been certified pursuant to Rule 23(b)(2).” Karnette,
. The absence of injury as to some members of a(b)(2) class is not similarly problematic because the relief available there is declaratory and injunctive in nature. Class members who were not harmed would not accrue any benefits as a result of the issuance of a declaratory judgment or injunction, nor presumably would they care that they had been included in such a class.