In Smith v. SIMM Associates, Inc., 2018 WL 389089, at *4 (E.D.Wis., 2018), Judge Griesbach granted class certification in an FDCPA case.
Defendant maintains that a class action is not the superior method of litigating the issues presented here because Plaintiff arbitrarily limited her purported class. Specifically, Defendant argues that, rather than propose a class that includes all potential consumers who received an allegedly offending letter from Defendant regardless of the named creditor, Plaintiff limited the purported class to debtors who received a collection letter naming Comenity Bank as the original creditor. To be sure, courts have denied class certification when the plaintiff arbitrarily chooses to limit the class. See, e.g., Guevarra v. Progressive Financial Services, Inc., No. C-05-3466, 2006 WL 3613742 (N.D. Cal. Nov. 30, 2006) (holding that plaintiff’s decision to limit her suit to IKEA debts so that she could pursue relief regarding non-IKEA debtors in a separate action failed to satisfy fairness and efficiency); Wenig v. Messerli & Kramer P.A., No. 11-CV-3547, 2013 WL 1176062 (D. Minn. Mar. 21, 2013) (finding that limiting class to individuals in Hennepin County, Minnesota made “little sense” when defendant sent the same offending letter to approximately 30,000 Minnesota consumers). Yet, the purpose of the superiority analysis is to determine whether a class action is superior to all other available methods to adjudicate the controversy, not to decide whether the plaintiff could have proposed a larger, broader class to avoid the possibility of other, related class actions. Even if the court were to consider this as a factor in its Rule 23 analysis, there is no evidence that, by limiting the proposed class to all Wisconsin consumers who received a letter listing Comenity Capital Bank as the original creditor, Plaintiff engaged in arbitrary gerrymandering in order to file multiple lawsuits based on the same underlying conduct. The Seventh Circuit has recognized that a plaintiff is not required propose a class that includes all possible members when the case does not “present multiple or serial class actions to recover for the same misconduct.” Mace v. Van Ru Credit Corp., 109 F.3d 338, 343–44; see also McCurdy v. Prof’l Credit Serv., No. 6:15-cv-01498, 2016 WL 5853721 (D. Ore. Oct. 3, 2016) (noting class certification should not be denied “based on the mere possibility another class action will be filed”). Defendant has not identified any ongoing, related litigation regarding the offending letter Plaintiff challenges here. I therefore decline to deny class certification merely because Plaintiff’s proposed class is limited to those individuals who received a collection letter regarding debts owed to Comenity Bank.