In Lawrence v. First Fin. Inv. Fund V, No. 2:19-cv-00174-RJS-CMR, 2020 U.S. Dist. LEXIS 149122 (D. Utah Aug. 17, 2020), Judge Shelby certified an FDCPA class after the class representative abandoned any claim for emotional distress because such damage claim could not be pursued on a representative basis.
Next, First Financial argues Lawrence’s claims are atypical of the proposed classes because she is seeking emotional distress damages for herself.73 Lawrence, however, represents she will no longer seek those damages if the classes are certified. Accordingly, Lawrence’s request for emotional damages does not impact typicality because she no longer requests them. In sum, typicality is satisfied here because Lawrence’s and the class members’ claims rely on the same theory: First Financial violated the FDCPA and UCSPA by suing debtors without first complying with the Registration Statute. Further, Lawrence’s harm, being sued by an unlicensed debt collector, is the same harm experienced by the class members. Indeed, based on the record before it, the court cannot identify “circumstances that would give rise to a different theory of liability” for Lawrence or the putative class members. If First Financial is found liable under Lawrence’s theory, a subclass can later be established—assuming it complies with Rule 23—to attempt to void the underlying judgments First Financial obtained against Lawrence and 645 class members. . .First Financial argues “Lawrence’s apparent disregard for the statutory interests” of the UCSPA class—because they allegedly cannot recover damages as a class—demonstrates she is an inadequate representative.123 But, as addressed above, this is a conclusion that Lawrence disputes. Further, she has voluntarily dismissed her claim for emotional distress damages to further the classes’ interests. Accordingly, First Financial’s argument is factually inaccurate and legally insufficient to demonstrate Lawrence is an inadequate class representative.
Such ‘claims trimming’ can render the class representative an inadequate representative and can create a basis upon which the court can deny certification. Hyman & Saelao, The Effect of Claim-Trimming on Class Certification in TCPA Cases, 71 Conf. Cons. Fin. L. Q. 83 (Winter 2017) However, the District Court did no such analysis and simply accepted the class representative’s claim abandonment and moved on.