Lead Opinion
Thеse consolidated appeals are taken from the September 4, 2012 class certification opinion, Sykes v. Mel Harris & Assocs., LLC,
The district court’s March 28, 2013 order certified two classes. The first class, certified pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, comprises “all persons who have been or will be sued by the Mel Harris defendants as counsel for the Leucadia defendants ... asserting] claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961; New York General Business Law (GBL) § 349; and New York Judiciary Law § 487.” Special App’x at 46.
The second class, certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, comprised “all persons who have been sued by the Mel Harris defendants as counsel for the Leucadia defendants in ... New York City Civil Court and where a default judgment has been obtained. Plaintiffs in the Rule 23(b)(3) class assert claims under RICO; the Fair Debt Collection Practices Act [ (FDCPA) ], 15 U.S.C. § 1692; GBL § 349; and New York Judiciary Law § 487.” Special App’x at 47.
We conclude that the district court did not abuse its discretion in certifying either class.
Affirmed.
BACKGROUND
We draw our facts from the district court’s class certification opinion, which depended on “the depositions, declarations, and exhibits submitted ... in connection with” the motion for class certification. Sykes II,
I. Plaintiffs
“Monique Sykes, Rea Veerabadren, Kelvin Perez, and Clifton Armoogam are New York City residents who were each sued by various defendants in debt collection actions commenced in New York City Civil Court between 2006 and 2010.” Sykes II,
II. Defendants’ Alleged Default Judgment Scheme
A. Default Judgments
These default judgments, in the words of plaintiffs, are the result of defendants’ construction of a “default judgment mill.” The “mill” operates in this fashion: first, by obtaining charged-off consumer debt; second, by initiating a debt-collection action by serving a summons and complaint on the purported debtor; and third, by submitting fraudulent documents to the New York City Civil Court in order to obtain a default judgment.
At the first step, “[pjlaintiffs allege that the Leucadia and Mel Harris defendants entered into joint ventures to purchase
At the second step, Mel Harris would employ “a software program ... designed by [Mel Harris employee] Mr. [Todd] Fabacher.” Appellees’ App’x at 157. Fabacher is employed as a “director of information technology for Mel Harris.” Sykes II,
To effectuate this second step, Leucadia and Mel Harris defendants would hire a process server, often Samserv. Sykes II,
Having generated these documents, at the third step, “[a]fter a debtor failed to appear in court for lack of notice of the action, the Leucadia and Mel Harris defendants would then apply for a default judgment by providing the court with ... an ‘affidavit of merit’ attesting to their personal knowledge regarding the defendant’s debt and an affidavit of service as proof of service.” Sykes II,
Before the district .court at the class certification stage, there was substantial evidence of the scope and impacts of this alleged scheme. “Between 2006 and 2009, various Leucadia entities filed 124,838 cases,” and Mel Harris represented Leucadia in 99.63 percent of those cases. Id. at 284. “The ‘vast majority’ of such cases were adjudicated without appearance by the defendant debtors, indicating the likelihood that а default judgment was entered.” Id. Further, “[bjetween 2007 and 2010 various Leucadia entities obtained default judgments in 49,114 cases in New York City CM Court.” Id.
B. Affidavits of Service
The district court concluded that “[bjetween January 2007 and January 2011, Samserv defendants performed service of process in 94,123 cases filed by Mel Harris in New York City Civil Court, 59,959 of which were filed on behalf of Leucadia defendants.” Id. In evaluating the evidence submitted by plaintiffs with respect to Samserv’s practice of engaging in sewer service, the district court concluded that there was “substantial support for plaintiffs’ assertion that defendants regularly engaged in sewer service.” Id. This conclusion was based on the fact that “[records maintained by defendants reveal hundreds of instances of the same process server executing service at two or more locations at the same time,” id., as well as the fact that “[t]here were ... many other occasions where multiple services were
Plaintiffs point out that the record before the district court also included a number of other irregularities. For example, “in 2,915 instances, a process server claimed to have attempted or completed service before the date that the service was assigned to that process server — [a] physical impossibility.” Appellees’ App’x at 163. Additionally, process servers often reported 60 service attempts in a single day, Appellees’ App’x at 183, and the six particular process servers who accounted for a majority of service performed by Samserv for Mel Harris “reported high volumes of service, including hundreds of days on which they claimed to have made more than 40 visits in a single day,” Appellees’ App’x at 165. However, an experienced process server attested to the fact that “based on [his] experiencе, ... it is unlikely that a process server could regularly make more than 25 service attempts at personal residences in one day.” Appellees’ App’x at 153. Finally, “[t]he six process servers also reported widely divergent rates of personal, substitute, and nail and mail service.” Appellees’ App’x at 165. There was no evidence in the record at class certification that would explain the divergent rates for the means of service. Plaintiffs finally point out that, despite the district court’s order that Samserv defendants produce logbooks recording their service attempts by October 6, 2009, which could ostensibly confirm service, none have been turned over.
C. Affidavits of Mterit
The district court provided a complete overview of the process for generating affidavits of merit, the facts of which are not challenged on appeal. “The affidavits of merit submitted by the Mel Harris and Leucadia defendants ... follow a uniform format.” Sykes II,
The district court explained the crux of the issue as follows:
Typically, Fabacher does not receive the original credit agreements between the account holders and the creditors. Instead, he receives a bill of sale for the portfolio of debts purchased that includes ‘sample’ credit agreements and ‘warranties’ made by the seller regarding the debts in the portfolio. In many instances, such agreements do not exist. If they do exist, Fabacher’s ‘standard practice’ does not entail reviewing them before endorsing an affidavit of merit. He instead relies on the warranties made by the original creditor.... Fabacher produces the affidavits of merit for signature in batches of up to 50 at a time. He ‘quality checkfs]’ one affidavit in each batch and if it is accurate, he signs the remaining affidavits in the batch without reviewing them. The quality check consists of ensuring that information printed on the affidavit matches the information stored in the Debt Master database.
Id. at 285 (alteration in original). Reviewing these allegations at an earlier stage in the proceedings, the district court conclud
Plaintiffs point out that the practice of Leucadia defendants in purchasing these charged-off debts, which involves acquiring only limited information with respect to the character of this debt, is not uncommon in the secondary consumer debt market. Typical information transmitted in the purchase of a consumer debt will include the consumer’s name, address, and the amount owed. See Federal Trade Commission, The Structure and Practices of the Debt Buying Industry, 34-35 (Jan. 2013), available at http://www.ftc.gov/sites/ default/files/documents/reports/structureandpractices-debt-buying-industry/ debtbuyingreportpdf (last visited Feb. 6, 2015). It is extremely rare, however, that the purchaser of the debt will receive any underlying documentation on the debt. Id.
III. Proceedings Below
Monique Sykes commenced this action against “some of the Leucadia, Mel Harris, and Samserv defendants” on October 6, 2009, alleging FDCPA and GBL claims. Sykes II,
Defendants moved to dismiss, and the district court denied the motion. In adjudicating the motion to dismiss, the district court reasonеd, inter alia, that the FDCPA claims were not time-barred under the relevant one-year statute of limitations for Sykes and Perez on the grounds that those claims had been equitably tolled. Sykes I,
For their part, Samserv defendants moved to dismiss the FDCPA claims on the grounds that they were not “debt collectors” for the purposes of the FDCPA. Id. at 423 (citing exemptions for process servers under 15 U.S.C. § 1692a(6)(D)). The district court disagreed, reasoning that the FDCPA “protects process servers only ‘while’ they serve process,” and therefore “Samserv defendants’ alleged failure to serve plaintiffs process and provision of perjured affidavits of service remove them from the exemption.” Id.
Leucadia and Samserv defendants further argued that plaintiffs lacked standing to bring their claims under RICO. Id. at 427. This was because, according to defendants, plaintiffs could neither establish an injury to their property interest nor that “the RICO violations were [] the proximate cause of their injuries” Id. The district court disagreed, reasoning that “defendants’ pursuit of default judgments and attempts to enforce them against plaintiffs proximately caused their injuries, see Baisch v. Gallina,
Finally, Leucadia and Mel Harris defendants challenged the district court’s sub
Following the district court’s decision, plaintiffs moved for class certification, as well as for another opportunity to amend their complaint. Sykes II,
On March 28, 2013, the district court adopted plaintiffs’ proposed class certification order. The two classes certified are as follows.
Pursuant to Federal Rule of Civil Procedure 23(b)(2), a class is certified of all persons who have been or will be sued by the Mel Harris defendants as counsel for the Leucadia defendants in actions commenced in New York City Civil Court and where a default judgment has been or will be sought. Plaintiffs in the Rule 23(b)(2) class assert claims under [RICO], [GBL] § 349, and New York Judiciary Law § 487.
Pursuant to Rule 23(b)(3), a class is certified of all persons who have been sued by the Mel Harris defendants as counsel for the Leucadia defendants in actions commenced in New York City Civil Court and where a default judgment has been obtained. Plaintiffs in the Rule 23(b)(3) class assert claims under RICO; the [FDCPA]; GBL § 349, and New York Judiciary Law § 487.
Special App’x at 46-47.
JURISDICTION
The district court exercised jurisdiction under 28 U.S.C. § 1331, 28 U.S.C. § 1367, and 15 U.S.C. § 1692k(d). After certification, each defendant timely petitioned for leave to appeal the grant of certification pursuant to Rule 23(f) of the Federal Rules of Civil Procedure. Our court granted these petitions July 19, 2013. We have jurisdiction pursuant to 28 U.S.C. § 1292(e).
STANDARD OF REVIEW
‘We review a district court’s decision to certify a class under Rule 23 for abuse of discretion, the legal conclusions that informed its decision de novo, and any findings of fact for clear error.” In re U.S. Foodservice Inc. Pricing Litig.,
DISCUSSION
I. Legal Standards
A. Class Certification
“The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Wal-Mart Stores, Inc. v. Dukes, — U.S.-,
1. Rule 23(a) Prerequisites
Rule 23(a) of the Federal Rules of Civil Procedure provides that a class may be certified only if four prerequisites have been met: numerosity, commonality, typicality, and adequacy of representation. See Dukes,
One or more members of a class may sue or be sued as representative parties on behalf of all members 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; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). These remaining requirements “do[] not set forth a mere pleading standard. A party seeking class certification must ... be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes,
The Supreme Court has recently clarified the commonality requirement under Rule 23(a). “Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. This does not mean merely that they have all suffered a violation of the same provision of law.” Id. (internal quotation marks and citation omitted). Interpreting this requirement in the context of sexual discrimination claims in violation of Title VII of the Civil Rights Act, the Court instructed that such claims “must depend upon a common contention — for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 2551 (emphasis added). Furthermore, the Court noted that in certain “eontext[s] ... ‘[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in them absence.’ ” Id. at 2551 n. 5 (alteration in original) (quoting Gen. Tel. Co. of Sw. v. Falcon,
2. Rule 23(b)(2) Requirements for Injunctive Relief
Beyond these prerequisites, Rule 23(b) provides additional considerations for a district court to- consider prior to the certification of a class. Under Rule 23(b)(2), a class action may only be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief ... is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). The Supreme Court has clarified that certification of a class for injunctive relief is only appropriate where “a single injunction ... would provide relief to each member of the class.” Dukes,
Rule 23(b)(3) imposes two additional burdens on plaintiffs attempting to proceed by class action, namely, predominance and superiority. Specifically, a class may be certified only if the district court determines as follows:
[T]he questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action. ,
Fed.R.Civ.P. 23(b)(3).
In assessing the justifications for the creation of Rule 23(b)(3) classes the Supreme Court has observed as follows:
While the text of Rule 23(b)(3) does not exclude from certification cases in which individual damages run high, the Advisory Committee had dominantly in mind vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.... “The policy at the very core of the class action mechanism is to overcome the problem that small-recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by
aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.” Mace v. Van Ru Credit Corp.,109 F.3d 338 , 344 (7th Cir.1997).
Amchem Prods., Inc. v. Windsor,
With respect to common issues, Rule 23(b)(3), by its plain terms, imposes a “far more demanding” inquiry into the common issues which serve as the basis for class certification. Id. at 623-24,
Furthermore, “[c]ommon issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues.” In re Visa Check/MasterMoney Antitrust Litig.,
[t]he plaintiffs must ... show that they can prove, through common evidence, that all class members were ... injured by the alleged conspiracy.... That is not to say the plaintiffs must be prepared at the certification stage to demonstrate through common evidence the precise amount of damages incurred by each class member. But we do expect the common evidence to show all class members suffered some injury.
In re Rail Freight Fuel Surcharge Antitrust Litig.,
Finally, the disjunctive inquiry that district courts must engage in prior to class certification requires analysis of the predominance of common issues, as well as a determination that class certification is the superior method for adjudicating these claims. Fed.R.Civ.P. 23(b)(3). Rule 23(b)(3) also lists four factors — individual control of litigation, prior actions involving the parties, the desirability of the forum, and manageability — which courts should consider in making these determinations. Fed.R.Civ.P. 23(b)(3)(A)-(D). By the structure of the rule, these factors seem to apply both to the predominance and superiority inquiry. However, while these factors, structurally, apply to both predominance and superiority, they more clearly implicate the superiority inquiry. See, e.g., Vega v. T-Mobile USA Inc.,
While Rule 23(b)(3) sets out four individual factors for courts to consider, manageability “is, by the far, the most critical concern in determining whether a class action is a superior means of adjudication.” 2 William B. Rubenstein, Newberg on Class Actions § 4.72 (5th ed. West 2014). As a component of manageability, in determining whether a class action in a particular forum is a superior method of adjudication, courts have considered “when a particular forum is more geographically convenient for the parties ... or, for example, when the defendant is located in the forum state.” Id. § 4.71.
B. Claims for Relief
1. FDCPA
Plaintiffs allege that Leucadia, Mel Harris, and Samserv defendants acted in violation of various provisions of the FDCPA. The FDCPA was enacted “to eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692(e). The statute provides for civil liability for a wide range of abusive actions, and plaintiffs focus their claims on violations of Section 1692e and Section 1692f of the statute.
Section 1692e prohibits “false or misleading representations,” and provides as follows:
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: ... (2) The false representation of — (A) the character, amount, or legal status of any debt ... (8) Communicating or threatening to communicate toany person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.... (10) The use of any false representation or deceptive means to collect or attempt to collect any debt....
15 U.S.C. § 1692e(2), (8), (10). Section 1692f, for its part, prohibits a debt collector from “us[ing] unfair or unconscionable means to collect or attempt to collect any debt.” Id. § 1692f. The FDCPA limits actions to those brought “within one year from the date on which the violation occurs.” Id. § 1692k(d).
Violations of these provisions expose a debt collector to civil liability. 15 U.S.C. § 1692k. The district court concluded, and defendants do not meaningfully challenge, that “[l]iability under the FDCPA can be established irrespective of whether the presumed debtor owes the debt in question.” Sykes II,
2. RICO
To prevail on their civil RICO claims in this case, “plaintiffs must show (1) a substantive RICO violation under [18 U.S.C.] § 1962, (2) injury to the plaintiffs business or property, and (3) that such injury was by reason of the substantive RICO violation.” In re U.S. Foodservice,
3. State Law Claims
Plaintiffs finally bring two claims under state law. First, plaintiffs bring claims pursuant to New York’s General Business Law, which prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. L. § 349(a). “To maintain a cause of action under § 349, a plaintiff must show: (1) that the defendant’s conduct is ‘consumer oriented’; (2) that the defendants is engaged in a ‘deceptive act or practice’; and (3) that the plaintiff was injured by this practice.” Wilson v. Nw. Mut. Ins. Co.,
Second, plaintiffs bring a claim pursuant to the New York Judiciary Law against the Mel Harris defendants. New York law provides that “[a]n attorney ... who ... [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with the intent to deceive the court or any party ... [i]s guilty of a misdemeanor, and ... he forfeits to the party injured treble damages, to be recovered in a civil action.” N.Y. Jud. L. § 487.
II. Application
A. The Proposed Classes Satisfy the Requirements of Commonality & Typicality Under 23(a)
Rule 23(a)’s commonality prerequisite is satisfied if there is a common issue that “drivefs] the resolution of the litigation” such that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes,
[Plaintiffs’] overarching claim is that defendants systematically filed false affidavits of merit and, in many instances, false affidavits of service to fraudulently procure default judgments in New York City Civil Court. Whether a false affidavit of merit or a false affidavit of service or both were employed in a particular instance, the fact remains that plaintiffs’ injuries derive from defendants’ alleged unitary course of conduct, that is, fraudulently procuring default judgments.
Sykes II,
1. Affidavits of Merit
At the outset, Leucadia and Mel Harris defendants principally argue that, by char
Second, such a framework makes sense, as it is not disputed that these false affidavits of merit are necessary to the scheme to procure fraudulently obtained default judgments based on what is required in state court. The New York City Civil Court has jurisdiction over debt collection actions that seek to recover damages of $25,000 or less. N.Y.C. Civ.Ct. Act § 202. Section 3215 of the New York Civil Practice Law and Rules governs the procedures for obtaining a default judgment in these courts. Section 3215(a) permits plaintiffs seeking “a sum certain” to make an application “to the clerk within one year after the default. The clerk, upon submission of the requisite proof, shall enter judgment for the amount demanded in the complaint....” N.Y. C.P.L.R. § 3215(a). Requisite proof, in turn, is defined in Section 3215(f) as “proof of service of the summons and the complaint ... and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party.” Id. § 3215(f). Thus, both affidavits of service, as well as affidavits of merit, are necessary to obtain default judgments, though neither, independently, is sufficient.
Plaintiffs’ contention is that Fabacher’s statement in each one of the affidavits of merit, that he is “personally familiar with, and [has] personal knowledge of, the facts and proceedings relating to” the default judgment action, see, e.g., Appellees’ App’x at 10, is false. The reason such statements are false is that Fabacher has not reviewed, nor do defendants actually possess, documents relevant to the underlying debt.
Resolving the question of whether this contention is false “will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes,
2. Affidavits of Service
Moreover, even assuming that the district court was required to determine that the false affidavits of service were susceptible to class-wide proof, we would still conclude that the district court did not abuse its discretion in finding that the requirements of Rule 23(a) were satisfied. The district court found, on the basis of the evidence before it, that there was “substantial support for plaintiffs’ assertion that defendants regularly engaged in sewer service.” Sykes II,
Plaintiffs articulate two distinct reasons why they will be able to bring forward at trial competent evidence which will prove the fraudulent nature of the affidavits of service. First, they suggest that the affidavits of service will not be entitled to credibility, given the district court’s finding that “defendants regularly engaged in sewer service.” Sykes II,
Second, plaintiffs aver that, because Samserv defendants have been ordered to turn over their logbooks to plaintiffs, but have not, they will be able to prove fraud by spoliation. Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure permits, in the case of a failure to comply with a discovery order, the district court to, inter alia, “direct! ] that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims.” Fed.R.Civ.P. 37(b)(2)(A)®. Proof of fraudulent service might thus be achieved on a class-wide level. Defendants misread the requirements of Rule 23(a) when they suggest that these theories of class-wide proof fail to “affirmatively demonstrate [plaintiffs’] compliance with” Rule 23(a). Dukes,
In sum, the district court did not abuse its discretion in determining that plaintiffs had demonstrated sufficiently common questions of law or fact to satisfy the prerequisites of Rule 23(a).
B. The District Court did Not Abuse its Discretion in Certifying the 23(b)(3) Class
While Rule 23(b)(3) also speaks in terms of commonality, it imposes a “far more demanding” inquiry. Amchem,
1. Common Questions of Law and Fact Predominate
Defendants submit that individual issues will predominate over common issues in this case because the district court will be forced to confront individual issues with respect to damages, timeliness, and service. We conclude that the district court did not abuse its discretion in finding that these issues, even if they are individualized in certain respects, do not predominate over class issues.
a. Damages
In making its decision on the propriety of class certification, the district court reasoned as follows:
Every potential class member’s claim arises out of defendants’ uniform, widespread practice of filing automatically-generated, form affidavits of merit based on ‘personal knowledge’ and, in many instances, affidavits of service, to obtain default judgments against debtors in state court. Whether this practice violates the FDCPA, New York GBL § 349, New York Judiciary Law § 487, and/or constitutes a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c) and (d) does not depend on individualized considerations.... The Court recognizes that should defendants be found liable on some or all of these claims, individual issues may exist as to causation and damages as well as to whether a class member’s claim accrued within the applicable statute of limitations. This, however, does not preclude a finding of predominance under Rule 23(b)(3).
Sykes II,
Plaintiffs’ operative complaint seeks three kinds of damages: statutory damages; “actual and/or compensatory damages ... in an amount to be proven at trial”; and what plaintiffs refer to as “incidental damages.” Joint App’x at 219-20. It is not disputed that statutory damages under GBL § 349 can be assessed on the basis of common proof, as they are capped at $50. N.Y. Gen. Bus. L. § 349(h). Furthermore, Congress has devised a generally applicable formula for class action dam
The only individualized damages inquiries that “may exist,” Sykes II,
Second, defendants misstate the central holding of Comcast in an attempt to advance the argument that individual damages issues predominate in this case. It is true that the Court, in Comcast, reversed a grant of class certification on the grounds that individual damages issues precluded certification. But these damages claims were individual because, based on undisputed evidence, the plaintiffs’ “model f[e]ll[ ] ... short of establishing that damages [were] capable of measurement on a classwide basis.”
Third, defendants suggest that the district court did not engage in the “rigorous analysis” required at the class certification stage. In doing so, they emphasize that the district court’s statement that individualized questions “do[ ] not preclude a finding of predominance under Rule 23(b)(3)” was not sufficient to make out the opposite conclusion, namely, that common questions did predominate. Sykes II,
(1) whether defendants’ practice of filing affidavits of merit and/or affidavits of service with respect to the plaintiff class members violates the FDCPA; (2) whether defendants collectively constitute a RICO enterprise within the meaning of 18 U.S.C. § 1961(4); (3) whether defendants have engaged in a pattern of racketeering activity in connection with the collection of debt in violation of 18 U.S.C. § 1962(c) and (d); (4) whether defendants have used deceptive acts and practices in the conduct of their businesses in violation of New York GBL § 349; and (5) whether the Mel Harris defendants have engaged in deceit and collusion with intent to deceive the courts and any party therein in violation of New York Judiciary Law § 487.
Sykes II,
b. Timeliness
The district court acknowledged, as well, that individualized issues of timeliness may inhere in the class “should defendants be found liable on some or all of these claims.” Id. at 293. Defendants argue, again, that the district court was wrong to find that the presence of such individual issues did not indicate that individual issues would predominate. Plaintiffs respond that they do not invoke equitable tolling. Plaintiffs are correct: in support of their motion for class certification before the district court, plaintiffs averred that they “do not seek to include as class members persons whose claims accrued outside the statute of limitations for each substantive claim.... Indeed, only individuals whose claims accrued within one year prior to the filing of the Complaint will seek relief on the FDCPA claim.” Sykes v. Mel Harris & Assocs., No. 09-cv-8486 (DC), ECF No. 99, at 27.
Defendants point out that the district court had earlier relied on equitable tolling in order to determine that the claims of Sykes and Perez were timely under the FDCPA. They do not claim that plaintiffs are estopped from arguing that equitable tolling does not apply based on the district court’s determination that Sykes and Perez could bring actions under the FDCPA on the basis of equitable tolling. Sykes I,
While it may be true that disclaiming equitable tolling for Sykes and Perez may necessitate the district court to limit the sorts of claims that these named plaintiffs may bring, that is a determination for the district court to make in the first instance. It is certainly not a justification for reversing the district court’s grant of class certification: at the most, if Sykes’s and Perez’s FDCPA claims are time-barred, this only means that they cannot assert claims under the FDCPA. The practical import of such a rule is that Sykes and Perez may be members of a subclass, advancing only a portion of the claims certified under Rule 23(b)(3). Such subclasses are contemplated by the Federal Rules, see Fed.R.Civ.P. 23(c)(5), and may be certified after the original certification order is upheld. See Marisol,
It is within plaintiffs’ prerogative to disclaim equitablе tolling, and they may do so without sacrificing the adequacy of representation, especially as defendants make no actual attempt to show why such a disclaimer may be antagonistic. It is for the district court to determine the impact of this disclaimer on the specific claims particular plaintiffs may bring, but it may do that at a future date, without our disturbing the class certification order.
c. Causation
The district court also determined that individual causation issues may exist in this case, Sykes II,
Individual issues related to causation in this case are formulated by defendants on appeal as individual issues related to service. Thus, for example, Mel Harris advance the argument that “a class member who was properly served and paid debts that he actually owed has sustained a radi
First, with respect to the FDCPA claims, the district court concluded that the existence of an underlying debt was unnecessary in order to establish liability under that statute. Sykes II,
Second, where causation does seem most relevant to us, and where we presume the district court recognized such individualized causation issues, was with respect to plaintiffs’ claims under RICO. This is because RICO requires that the alleged injury to plaintiffs’ “business or property ... was by reason of the substantive RICO violation.” In re U.S. Foodservice,
Third, none of the potential causation issues related to service suggest that Samserv is not a proper class defendant in this case. It is true that Samserv was kept in this litigation with respect to the FDCPA claims on the basis that it could not claim the benefits of the FDCPA’s exemption for process servers on the grounds that the district court concluded, at the motion to dismiss stage, that plaintiffs adequately alleged that Samserv engaged in sewer service.. Sykes I,
2. Proceeding by Class is a Superior Method of Adjudication
a. Defendants’ Theory of Superiority is Unpersuasive
Mel Harris defendants raise, for the first time on appeal, the novel theory that the district court’s superiority analysis was incorrect because it undervalued the obligation to consider the “desirability ... of concentrating the litigation of the claims in the particular forum.” Fed. R.Civ.P. 23(b)(3)(C). In particular, Mel Harris suggest that “[i]f the gravamen of this case ... really were the adequacy of the affidavits of merits filed with the New York City Civil Court, surely that court is the superior forum to hear the complaint and devise any remedies.”
This is a fine rhetorical point that depends for its strength on a complete misreading of (1) the jurisdiction of the New York City Civil Court, (2) the requirements of Rule 23(b)(3), and (3) the gravamen of plaintiffs’ complaint.
In the first place, there is no basis to assert that plaintiffs’ claims even could be heard as a .class in the New York City Civil Court. These courts have jurisdiction only over those actions in which the value of the controversy is $25,000 or less. N.Y.C. Civ.Ct. Act § 202. While individual plaintiffs might seek to bring their actions in such a court based on this amount-in-contróversy limitation, there is no basis to conclude that plaintiffs could proceed as a class there. The argument amounts to little more than Mel Harris’s expression of a preference that their alleged widespread fraudulent behavior be dealt with in a piecemeal fashion. That is not how plaintiffs have chosen to proceed. The fact that Mel Harris would have preferred plaintiffs to have advanced their claims differently cannot make it a rеquirement under Rule 23(b)(3).
Second, the forum analysis of Rule 23(b)(3) is not grounded in a consideration of the comparative value of pursuing a claim in federal or state court. Defendants’ authorities on this issue, which are apparently the only authorities that have ever conducted a superiority analysis by reference to the availability of relief in a federal or state forum, have not considered claims analogous to those brought by
Third, Mel Harris’s argument depends on a misreading of the gravamen of plaintiffs’ allegations. It is ultimately not the procedures of New York City Civil Court, or the ultimate default judgments, that are at issue in this case. It is, rather, the fraudulent means that defendants employed in order to obtain those judgments. These means are the basis of claims that sound both in federal and in state law. To the extent that the district court had jurisdiction to entertain these claims, we see no basis for rewriting Rule 23(b)(3)(C) to impose a limit on the district court’s power.
Even if we were to credit Mel Harris’s argument that forum analysis requires us to consider state fora as opposed to federal fora, we would not conclude that the district court abused its discretion in concluding that proceeding by class is superior to alternatives for adjudicating these claims. Fed.R.Civ.P. 23(b)(3). Defendants engage in no other consideration of the 23(b)(3) factors. They do not even engage with the district court’s conclusions that a class action “is, without question, more efficient than requiring thousands of debtors to sue individually.” Sykes II,
Nor are we convinced that proceeding in state court is, as the dissent suggests, “superior in every way” to class action. See infra Op. pp. 98, 101-02. New York law provides for the en masse vacatur of
b. Defendants’ Rooker-Feldman and Full Faith & Credit Arguments are Unavailing at the Class Certification Stage
Just how far Mel Harris’s superiority arguments fall from the mark of requiring reversal of the district court’s class certification order under Rule 23(b)(3)(C) becomes even clearer when considered in light of the two doctrinal bases on which defendants argue that class certification was inappropriate in light of federalism concerns, namely, the Rooker-Feldman doctrine and the Full Faith and Credit Act. We take these arguments in order.
Rooker-Feldman bars the federal courts from exercising jurisdiction over claims “brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
First, the federal-сourt plaintiff must have lost in state court. Second, the plaintiff must complain of injuries caused by a state-court judgment. Third, the plaintiff must invite district court review and rejection of that judgment. Fourth, the state-court judgment must have been rendered before the district court proceedings commenced.
Hoblock,
The district court concluded, at the motion to dismiss stage, that “plaintiffs assert claims independent of the state-court judgments and do not seek to overturn them.” Sykes I,
Leucadiá defendants, for their part, offer the more subtle argument that the causation components of Rooker-Feldman required the district court to exclude from its class certification order “remittance” damages, by which Leucadia means the compensatory damages that plaintiffs claim defendants have extracted as a result of the entry of a default judgment. We disagree.
The crux of the issue, as identified by Leucadia, is not simply Rooker-Feldman, but rather the requirement that the district court’s certification order “define the class and the class claims, issues, or defenses, and must appoint class counsel.” Fed.R.Civ.P. 23(c)(1)(B). Leucadia’s argument is that the certification order under Rule 23(b)(3), which identifies all of the above but does not exclude the certain category of damages that Leucadia believes is not cognizable under Rooker-Feldman, finds no basis in the text of Rule 23, nor in the class certification decisions that we have identified.
Even if we credited Leucadia’s contention that the state court judgment satisfied the causal requirements of Rooker-Feldman, rather than acting as ratification of a 'harm that rеsulted from fraudulent conduct on behalf of defendants, Hoblock,
There are good reasons for these limited requirements. The district court’s order is not a final statement of the merits, just as class certification is not an opportunity to “engage in free-ranging merits inquiries.” Amgen,
Nor, in our view, do defendants’ arguments sounding under the Full Faith and Credit Act fare much better. The act requires that state court proceedings must be afforded “the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.” 28 U.S.C. § 1738. Defendants urge that such doctrine bars us from considering plaintiffs’ damages claims seeking the return of default judgments, because state courts treated judgments entitling them to recovery as valid. We decline to consider this argument, however, for the same reasons that the district court declined to carve out specific damages that might be available to the class based on its certification order: such a determination is simply not required under Rule 23(c)(1)(B).
Whether or not Fabacher was required to attest to personal knowledge of the underlying debt in his affidavit of merit, as plaintiffs contend, or whether a more lax standard governs his affidavits, as Mel Harris contend, is ultimately irrelevant to adjudicating liability under any of the claims that plaintiffs have brought. What matters is that, in hundreds of thousands of forms, he did attest to this knowledge, despite the undisputed fact, at the class certification stage, that he did not in fact actually review underlying documentation related to these loans. , Whatever was required in New York City Civil Court will not decide the issue of liability for these defendants. The conduct of defendants, and the question of whether this conduct was ultimately fraudulent, will decide their liability. The federal system, with its guarantees of concurrent jurisdiction, and the federal laws under which plaintiffs seek relief, permit as much.
3. We Decline to Decide, in the First Instance, Whether the FDCPA Permits Claims for the False Statements Alleged Here
Defendants raise a final issue relatеd to the propriety of class certification, namely, the question of whether or .not the FDCPA permits a plaintiff to assert claims for a false statement that was made to a party other than the debtor.
We must determine the propriety of making a decision on this issue at this stage in the proceedings. Plaintiffs point out that we are not to “engage in free-ranging merits inquiries at the certification stage.” Amgen,
We decline to address this question, in the first instance,
C. The District Court Did Not Abuse its Discretion in Certifying the Rule 23(b)(2) Class
1. Proposed Injunctive Relief Benefits All Class Members
Injunctive relief is appropriate if “the party opposing the class has acted or refused to act on grounds that apply generally to the class.” Fed.R.Civ.P. 23(b)(2). The district court concluded that such relief was appropriate because of “defendants’ uniform filing of false affidavits in state court to fraudulently procure default judgments against putative class members.” Sykes II,
The Supreme Court has clarified that certification of a class for injunctive relief is only appropriate where “a single injunction ... would provide relief to each member of the class.” Dukes,
This claim is without merit. “[R]elief to each member of the class,” does not require that the relief to each member of the class be identical, only that it be beneficial. Dukes,
2. We Decline to Decide, in the First Instance, Whether RICO Permits Private Injunctive Relief
Defendants finally argue that injunctive relief is not available under RICO. For the same reasons that we found the district court did not commit error in declining to rule on the availability of relief under the FDCPA, we find that the district court did not commit error in declining to decide, at the’ class certification stage, whether RICO permits private injunctive relief.
Because the district court did not reach this question below, we decline to address it for the first time
CONCLUSION
For the foregoing reasons, the opinion and order of the district court is hereby affirmed.
Notes
. As previously noted, the Supreme Court has acknowledged that, in certain "contexts] ... '[t]he commonality and typicality requirements of Rule 23(a) tend to merge.’ ” Dukes,
. For similar reasons, defendants' — and the dissent's, see infra p. 105 — contentions regarding the inappropriateness of certifying a class to bring claims against Samserv, when Samserv admittedly did not serve process on all individuals who were sued or will be sued in New York City Civil Court by Mel Harris on behalf of Leucadia, are also misplaced. Plaintiffs who were not served by Samserv allege no FDCPA or GBL claims against Samserv — they only bring RICO claims. Carving out such claims may also be the subject of an appropriate subclass under Rule 23(c)(5), but this is for the distriсt court to determine in the first instance. See Marisol,
. The dissent intimates that Mel Harris cannot be expected to have previously raised this superiority theory, as their arguments below were tailored to plaintiffs’ emphasis on sewer service, which involved questions of fact unique to each debtor. See infra Op. p. 101— 02. According to the dissent, class counsel’s shift in the focus of the complaint, to the submission of false affidavits of merit, accounts for the new state-forum argument. But this explanation falls flat, as any shift in the focus of plaintiffs’ allegations has not affected the nature of defendants’ contentions. Mel Harris defendants continue to insist that resolution of plaintiffs' claims will require "individualized showings,” now related to the affidavits of merit, which will result in “one hundred thousand mini-trials.” Further, the state procedural remedy the dissent endorses to address these claims concurrently, see infra Op. pp. 101-03, could have been raised by Mel Harris before the district court, as that provision applies to sewer service, see N.Y. C.P.L.R. § 5015(c) (providing, upon application of an administrative judge, for en masse vacatur of default judgments obtained, inter alia, by "fraud, misrepresentation, ... lack of due service, ... or other illegalities” (emphasis added)).
. It may also be, on full adjudication of the merits of this issue, that the district court may determine that the issue has not been properly raised. The requirement that federal courts afford full faith and credit to state court judgments is an argument that federal courts must give res judicata effect to the state court judgment. See Kremer v. Chem. Constr. Corp.,
. We have not ruled on whether an FDCPA claim may be brought for misrepresentations made to third parties. Kropelnicki v. Siegel,
. We have yet to decide whether RICO allows for private injunctive relief. See, e.g., Motorola Credit Corp. v. Uzan, 202 F.Supp.2d 239, 243 (S.D.N.Y.2002).
Dissenting Opinion
dissenting:
This class action alleges that the defendant firms cut sharp corners in obtaining default judgments аgainst the class members in the Civil Court of New York City. On this interlocutory appeal from class certification, the panel concludes that the superiority and predominance prerequisites to a Rule 23(b)(3) damages class have been satisfied. I respectfully dissent.
The superiority ruling is error because a statutory procedure is available, in the Civil Court itself, for redressing such an allegedly wide-ranging fraud — one that is superior in every way to this unwieldy federal class action. The district court’s predominance ruling cannot be sustained because the court failed to perform, as is necessary, a rigorous weighing of common and individualized issues. The majority also holds that a Rule 23(b)(2) equitable and declaratory relief class was properly certified even though the named plaintiffs can get no benefit from that supposed relief because they have already achieved vacatur (or discontinuance) of the default judgments against them.
This is class litigation for the sake of nothing but class litigation.
I
Four plaintiffs, on behalf of a class of over 100,000, sued a buyer of bad debts (the “Leucadia defendants”), a law firm (the “Mel Harris defendants”), and a process server (“Samserv”), alleging that they fraudulently obtained default judgments against the class members. The alleged scheme proceeded in two steps: (1) a process server, sometimes a Samserv employee (but more often than not, not) engaged in sewer service, and then prepared a fraudulent affidavit of service; and (2) the debt buyer and the law firm generated and submitted standardized affidavits of merit
The dominant focus of the complaint is the fraud in service of process;
To patch this hole, plaintiffs changed focus to the affidavits of merit (all of which were generated by a software program used by a single Mel Harris employee) as the “glue” holding together this miscellaneous and diverse class. Wal-Mart Stores, Inc. v. Dukes, — U.S.-,
The district court certified two classes: (1) a Rule 23(b)(3) class seeking money damages for “all persons who have been sued by the Mel Harris defendants as counsel for the Leucadia defendants in actions commenced in New York City Civil Court and where a default judgment has been obtained”; and (2) a Rule 23(b)(2) class seeking equitable and declaratory relief for “all persons who have been or will be sued by the Mel Harris defendants as counsel for the Leucadia defendants in actions commenced in New York City Civil Court and where a default judgment has or will be sought.” Sykes v. Mel Harris & Assocs., LLC,
II
It is useful and diplomatic to set out first the points of my agreement with the majority. I agree that it was no abuse of discretion to find that the Rule 23(a) prerequisites — numerosity, commonality, typicality, and adequacy of representation— are met. There is a common issue as to whether the affidavits of merit were fraudulent, and the claims asserted about the affidavits of merit are typical. Fed. R.Civ.P. 23(a)(2), (3); see also, e.g., Gen. Tel. Co. of Sw. v. Falcon,
I also agree that the amount of debt owed by each class member, which defendants urge as an individualized issue that defeats certification, is beside the point. The harm can be viewed as the obligation created by a fraudulent default judgment, so that it should not matter that the original debt may remain, and be unaffected. See Hamid v. Stock & Grimes, LLP,
The last point of my agreement with the majority is that the substantive legal questions the defendants invite us to answer either counsel in favor of commonality and typicality, or are entirely tangential to the class certification decision and best left unanswered at this stage. One such question — what is required for an affidavit of merit under New York law?' — -is a common question of law in this case. In any event, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent — but only to the extent — that they are relevant to
Ill
In my view, the damages class was improperly certified. Rule 23(b)(3) requires first, that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy” and second, that “the questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). The Rule specifies, as “matters pertinent to these findings,” “the desirability or undesirability of concentrating the litigation of the claims in the particular forum ” and “the likely difficulties in managing a class action.” Fed.R.Civ.P. 23(b)(3)(C)-(D) (emphasis added). These very factors counsel against certification here. See Madison v. Chalmette Refining, LLC,
A
The district court concluded that a federal class action is a superior method for resolving this litigation over state court proceedings, because: (1) it is more efficient than requiring thousands of individual suits; (2) most class members would not litigate given the small recovery and their limited means; (3) the conduct all occurred in New York; and (4) any problems could be alleviated through use of class management tools. See Sykes II,
Even if a federal, class action were a good way to remedy an allegedly massive and pervasive fraud perpetrated on a New York court, it cannot be superior to the adequate remedial scheme already offered by the courts of New York. State law provides that, “on motion of any interested person,” a party may be relieved from a judgment based on the grounds of, inter alia, “excusable default,” “fraud, misrepresentation, or other misconduct of an adverse party.” N.Y. C.P.L.R. 5015(a)(1), (3). And, on an application by an administrative judge, vacatur may be granted en masse “upon a showing that default judgments were obtained by fraud, misrepresentation, illegality, unconscionability, lack of due service, violations of law, or other illegalities.” Id. 5015(c); cf. Jack Mailman & Leonard Flug DDS, P.C. v. Whaley, No. 31880/02,
The majority observes that the availability of recourse to state avenues for relief was not raised in the district court. See supra Op. pp. 91 & n. 4. True, defendants’ superiority arguments in their opposition to class certification focused on the existence of issues personal to each class member, as well as manageability, and the prospect of “mini-trials just to determine' the threshold issue of class membership.” See Mem. of Law in Opp’n to Class Cert., Dkt. No. 90 at 22-23. But that is because the complaint was chiefly predicated on sewer service, an issue as to which facts
Rule 23 requires consideration of any other “available method[] for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3); see also id. advisory committee notes (observing the court “ought to assess the relative advantages of alternative procedures” and stating that “[ajlso pertinent is the question of the desirability of concentrating the trial of the claims in the particular forum”). One such “method” that is “available” is afforded by the New York Legislature for redressing harms alleged in this case by recourse to the Civil Court, in which the alleged wrong was done. In the' majority’s view, “the forum analysis of Rule 23(b)(3) is not grounded in a consideration of the comparative value of pursuing a claim in federal or state court.” Supra Op. p. 92. That seems to me error, at least when the state court remedy affords relief — available en masse — for harm that was suffered in that forum.
Amici briefs filed by consumer advocacy groups explain that unscrupulous debt collection practices abuse the legal process, and demonstrate that this well-documented problem has drawn the attention of all levels of government for years. But that observation does not speak to a need for federal class action remedies. As the parties point out, the Civil Court has recently issued directives regarding “Default Judgments on Purchased Debt,” imposing new and additional requirements on third-party debt collectors like the Leucadia defendants.
The New York court system needs no helping hand from a federal class action initiative. The majority obseiwes that plaintiffs’ claims cannot be heard as a class in Civil Court. See supra Op. p. 92. But class litigation is not an end in itself. It is simply a “device to vindicate the rights of individuals class members.” In re Gen. Motors Corp. Engine Interchange Litig.,
The majority’s other critiques of the state procedure are easily disposed of. Vacatur en masse is discretionary — so are many aspects of class certification. See id. at 94. The majority cites to the district court’s observation that a class action is— “without question” — a more efficient way of proceeding. Id. at 94. But the state remedy is far more speedy than a cumbersome class action. In state court, all that is needed is to push on an open door. And that, evidently, is what the class representatives themselves did; they have all had their judgments vacated or discontinued. Thus, the door of the state court is open for the vacatur of the default judgments en masse, without class certification, subclasses, hungry lawyers, or issues of process and statutes of limitations. Cf. In re Aqua Dots Prods. Liability Litig.,
B
“Rule 23(b)(3)’s predominance criterion is even more demanding” than the “rigorous analysis” mandated under Rule 23(a), and requires a “close look at whether common issues predominate over individual ones.” Comcast Corp. v. Behrend, — U.S. -,
The district court acknowledged problems that might easily be viewed as fatal: “individual issues may exist as to causation and damages as well as to whether a class member’s claim accrued within the applicable statute of limitations.” Sykes II,
No doubt, resourceful judges can seek or find ways to overcome difficulties. But predominance cannot be determined without a careful balancing of the individualized issues against the common issues. It is not enough to discount problems on the basis of hope and confidence. Compare In re U.S. Foodservice Inc. Pricing Litig.,
The existence of such management tools, which are always at hand, does not help to distinguish a claim that justifies certification from a claim that does not. Cf. Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d
Specifically, many claims in this case may be defeated by the statute of limitations. The issue demands a close scrutiny that has not been given. If members were served (or otherwise notified) of the default judgment more than one year before the class action commenced, they cannot now rely on equitable tolling. See New York v. Hendrickson Bros.,
In an effort to skate past this appeal, class counsel now jettison their clients’ defense of equitable tolling, and propose to include as class members only persons whose claims are not barred by the statute of limitations. But the district court (for one) seemed to think the plaintiffs were still seeking the benefit of equitable tolling when it certified the class. See Sykes II,
Even if this maneuver succeeds (it appears it has), see supra Op. pp. 89-90, plaintiffs are simply trading a commonality problem for problems of typicality and adequacy of representation: the district court earlier relied on equitable tolling in order to save the FDCPA claims of two of the named plaintiffs.
IV
Class certification for equitable and declaratory relief under Rule 23(b)(2) is likewise deeply flawed. Such a class may only be certified if “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.” Fed.R.Civ.P. 23(b)(2). In other terms,- “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Dukes,
The named plaintiffs seek an injunction that would do absolutely nothing for them. The injunction sought would direct defendants to (1) conform their debt collection practices to the laws cited in the eom- . plaint, (2) locate and notify class members that a default judgment has been entered against them and that they have the right
Y
I cannot figure out what Samserv is doing here. The common thread identified by the district court was the preparation of the allegedly fraudulent affidavits of merit. Samserv had no role in drafting those affidavits. Moreover, fewer than half the class members were served with process (or given sewer service) by Samserv. And though plaintiffs respond that Samserv was still part of the RICO enterprise, the only common RICO issue identified is the affidavits of merit.
A class certification order cannot reach a defendant based on a purportedly common underlying thread unrelated to that defendant’s conduct. See Fed.R.Civ.P. 23(c)(1)(b) (“An order that certifies a class action must define the class and the class claims, issues, or defenses.... ”); see also, e.g., In re Initial Pub. Offerings Sec. Litig.,
The majority’s proposal that the district court may certify subclasses is no answer to these problems, for reasons set forth above. See supra Op. n. 3; see also Sacred Heart Health Sys.,
Certification of this misbegotten class will generate grinding of gears and spinning of wheels for years to come, notwithstanding an effective, superior, and immediately available remedy in state court.
. See Third Am. Compl. ¶ 4 ("[SJewer service is the primary reason so few of the people sued by Defendants appear in court to defend themselves.”); see also supra Op. p. 85 (acknowledging complaint's emphasis on sewer service but concluding "plaintiffs have made clear that this is but one component of the overarching debt collection plan”).
. See Sykes v. Mel Harris & Assocs., LLC,
. See Wal-Mart Stores, Inc. v. Dukes,-U.S. -,
.See Third Am. Compl. ¶¶ 136, 166, 198, 269.
. See supra Op. pp. 83, 86, 91-92; see also 18 U.S.C. § 1962(c).
. See supra Op. pp. 93-94, 87; see also N.Y. Gen. Bus. Law §§ 349(a), (h).
. See supra Op. p. 84; see also N.Y. Jud. Law § 487.
. See supra Op. pp. 82-83, 85-86, 88, 91-92; see also 15 U.S.C. §§ 1692e, 1692f, 1692k(a).
. Available at http://www.courts.state.ny.us/ courls/nyc/S S I/directi ves/DRP/drp 182 .pdf.