In Felix v. Northstar Location Services, LLC, — F.R.D. —-, 2013 WL 2319326 (W.D.N.Y. 2013), Judge McCarthy rejected a settlement class under the FDCPA and Rosenthal Act arising from allegedly inadequate and deceptive voicemail messages left on debtors’ answering machines. The facts alleged were as follows:
By Text Order dated June 15, 2011, I granted the parties’ motions to consolidate these two actions under Case Number 11–CV–166. Plaintiff Anthony Felix, a citizen of California, seeks relief under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. (“FDCPA”) and the California Rosenthal Fair Debt Collection Practices Act, Cal. Civ.Code §§ 1788, et seq. (“RFDCPA”) on his own behalf and on behalf of a proposed class of similarly situated individuals, against defendant Northstar Location Services, LLC (“Northstar”) and a number of Joe Doe defendants. First Amended Complaint . He alleges that he received several telephonic voice messages from Northstar which failed to disclose that the communication was from a debt collector, the purpose or nature of the communication, or the identification of Northstar as the caller. Id., ¶¶ 40–42. In addition to class certification, he seeks “maximum statutory damages” for class actions under the FDCPA and RFDCPA, “declaratory relief adjudicating that Northstar’s telephone messages violate the FDCPA … [and] RFDCPA”, “[a]ttorney’s fees, litigations expenses, and costs”, and “such other and further relief as may be just and proper”. Id., ¶ 81.
The District Court rejected the ‘settlement class’ as defined by the parties.
The “RFDCPA Settlement Class” is defined as: “all persons with addresses in the State of California who received a voice message left by Defendant on a telephone answering device, or who engaged in a telephone communication with Defendant, wherein the Defendant did not identify itself by its company name as the caller, state the purpose or nature of the communication or disclose that the communication was from a debt collector, or did not disclose at the outset of a communication that the call may be monitored or recorded, or where the Defendant made a false representation or used a deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer, and where such communication occurred between February 28, 2010, through and including the date of order granting preliminary certification of the Settlement Class.” Id., ¶ 1 .15 (emphasis added). ¶ The repeated use of the word “or” in the class definition requires me to interpret Northstar’s alleged “false representations” or “deceptive means” as meaning something other than its failure to identify itself, or to indicate that the call was from a debt collector and could be monitored. . . . ¶ However, the class definition sheds no further light on what types of false representations or deceptive means may have been involved, choosing instead to merely parrot the language of the FDCPA. Such a broad definition cannot create an ascertainable class, because it would require inquiry into the merits of each potential class member’s claim to determine whether that person had been the victim of a “false representation” or “deceptive means”. See Drinkman v. Encore Receivable Management, Inc., 2007 WL 4458307, *2 (W.D.Wis.2007) (“Several district courts have determined that a class definition was not definite when the plaintiff had simply incorporated the language of the statutory prohibition into its class definition because the court would be required to conduct individual inquires into the merits of each potential plaintiff’s case in order to determine their qualifications as class members …. [T]he Court considers such reasoning persuasive”). ¶ In Drinkman, an FDCPA case, the court held that a class definition referring to violations of 15 U.S.C. § 1692d(6) was too indefinite to describe the class. “Plaintiff’s class definition merely incorporates the statutory prohibition that a debt collector not place telephone calls without ‘meaningful disclosure’ of its identity. 15 U.S.C. § 1692d(6). If plaintiff’s class definition stands as is, the Court would be required to conduct individual inquires into whether each potential class member received a message containing ‘meaningful disclosure’ of defendant’s identity in an effort to determine if each potential class member was qualified to be an actual class member …. Accordingly, the fact that the Court would be forced to make individual decisions on the merits of each potential class member’s claim, including Drinkman’s claim, before it could even certify the class demonstrates that plaintiff’s class definition is not definite.” Id., *3. ¶ *5 Although the court in Drinkman solved the problem by redefining the proposed class more nar-rowly, that court was not asked to certify a settlement class. Here, by contrast, the class definition has been agreed to by the parties in the Stipulation of Settlement, and I “cannot rewrite the terms of the parties’ agreement”. Shiotani v. Walters, 2012 WL 6621279, *5, n. 4 (S.D.N.Y.2012). “The requirement that a district court review and approve a class action settlement before it binds all class members does not affect the binding nature of the parties’ underlying agreement …. A district court is not a party to the settlement, nor may it modify the terms of a voluntary settlement agreement between the parties.” Ehrheart v. Verizon Wireless, 609 F.3d 590, 593 (3rd Cir.2010). ¶ “Thus, because mini-hearings on the merits are required here to determine class membership, this class definition is untenable and cannot be certified.” Kondratick v. Beneficial Consumer Discount Co., 2006 WL 305399, *10 (E.D.Pa.2006). Nevertheless, I will next consider the requirements of Rule 23(a) and (b), which furnish independent reasons for denying the Consent Motion.