In Aho v. Americredit Financial Services, Inc., — F.R.D. —-, 2011 WL 5401799 (S.D.Cal. 2011), Judge Sabraw certified an NOI class under the UCL and ASFA for allegedly faulty post-repossession letters (“NOIs”) pursuant to FRCP 23(b)(2), but refused to do so under the Rosenthal Act. Judge Sabraw found the ‘damages’ sought under the Rosenthal Act were not incidental to the injunctive relief that could be awarded under FRCP 23(b)(2), and that Rosenthal Act damages were better addressed under FRCP 23(b)(3). Judge Sabraw found that a Rosenthal Act class, however, could not be certified under FRCP 23(b)(3) either because of an absence of predominance:
Plaintiff, however, provides no evidence as to the number, timing and content of the telephone calls, or the number and timing of the letters, let alone that a standard collection practice was used as to all class members. The general description of collection activities provided by Mr. Paterson is insufficient. For example, Plaintiff has not come forward with sufficient common evidence addressing the relevant statutory factors, such as the frequency and persistence of Defendants’ noncompliant debt collection activities, the specific nature of such noncompliance, and whether the noncompliance was intentional, among other factors. See 15 U.S.C. § 1692k(a)(2)(B). For these reasons, the Court finds Plaintiff has not established that common evidence predominates with respect to the statutory damages claim.
Accordingly, as to the UCL and ASFA, Judge Sabraw certified an NOI class under FRCP 23(b)(2) – but one which excluded a broad swath of consumers:
For the reasons set out above, the Court finds Plaintiff has satisfied the requirements for certification of the following class under Rule 23(b)(2): All persons who were sent an NOI by AmeriCredit to an address in California at any time from March 18, 2005 through May 15, 2009, following the repossession or voluntary surrender of a motor vehicle, who were assessed a deficiency balance following the disposition of the vehicle, and against whom AmeriCredit has asserted, collected, or attempted to collect any portion of the deficiency balance. The class excludes persons whose obligations have been discharged in bankruptcy, persons against whom AmeriCredit has obtained final judgments in replevin actions, persons whose contracts include arbitration clauses that prohibit class membership, and persons who received NOIs that denied them the right to reinstate. ¶ This class is entitled to pursue all forms of requested relief, with the exception of statutory damages under the Rosenthal Act and restitution of any amounts paid toward a deficiency balance. The Court also certifies under Rule 23(b)(3) a subclass consisting of all those who made a payment toward a deficiency and are therefore entitled to restitution. The attorneys of record for the named class Plaintiff are designated as counsel for this class and subclass.