CEB Prac. Guide § 2A.53 -- Liability -- Class Actions

In O'Dell v. National Recovery Agency, 2018 WL 1172435, at *11–13 (E.D.Pa., 2018), Judge Smith granted class cert in an FDCPA case over procedural objections to the class definition. . . .NRA contended that its net worth is $84,000. A net worth this low could foreseeably result in a de minimis recovery for each individual class member (one percent of $84,000… Read More

In Usry v. Equity Experts.Org, LLC, 2018 WL 934897, at *3 (S.D.Ga., 2018), Judge Hall held that a putative FDCPA class action was an impermissible "fail-safe" class. “A fail-safe class is a class whose membership can only be ascertained by a determination of the merits of the case because the class is defined in terms of the ultimate question of… Read More

In Lindblom v. Santander Consumer USA, Inc., 2018 WL 573356, at *5 (E.D.Cal., 2018), Judge McAuliffe found that the class representative was not typical because her claim fell outside the statute of limitations and was not subject to equitable tolling. As proposed by Plaintiff, the class definition includes individuals who paid Speedpay fees during the applicable limitations period, which is on… Read More

In Spice v. Blatt, Hasenmiller, Liebsker & Moore LLC, 2018 WL 525723, at *8–9 (N.D.Ind., 2018), Judge Springmann certified an FDCPA class over defendant's objection that the $500,000 statutory cap would only result in de minimus recovery and, therefore, the class action device was not the superior method to adjudicate the dispute. The Defendant counters that a class action is… Read More

In Pavlovich v. Account Discovery Systems, LLC, 2018 WL 395487, at *1 (S.D.Cal., 2018), Magistrate Crawford denied merits discovery because she already had ruled that class-discovery should proceed first. This Court issued a prior Order granting plaintiff’s Motion to Compel on November 28, 2017. [Doc. No. 63]. Therein, the Court approved discovery regarding DNF’s financial net worth because it is… Read More

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… Read More

Severson & Werson's Financial Services Practice Group's Law Bulletin on "California State and Federal Courts Have Different Class Certification Rules on Whether Putative Class-members Must Be Ascertainable" can be found here.   Read More

In Pavlovich v. Account Discovery Services, 2017 WL 5903354, at *3 (S.D.Cal., 2017), Magistrate Crawford found that an FDCPA Class Action Plaintiff was entitled to net worth discovery despite the fact that class certification had not yet been decided. The Court finds that plaintiff is entitled to financial information regarding defendant, DNF's, financial net worth in 2015, 2016, and at present.… Read More

In Spuhler v. State Collection Services, Inc., 2017 WL 4862069, at *7–8 (E.D.Wis., 2017), Judge Joseph certified an FDCPA class, rejecting the argument that the class, as defined, was too narrow and would result in multiple classes (in defiance of the $500k/1% net worth limitation) where the debt collector used the same offending letter for various clients. State Collection's first… Read More

Severson & Werson published an article entitled Hyman & Walser-Jolly, The Effect of the FDCPA's "Consumer" Limitation on Class Certification:  Do Courts Apply Different Standards in Individual and Class Actions", 70 Conf. Cons. Fin. L. Q. 172 (Summer 2017).  A copy of the article can be found here.     Read More

The Conference on Consumer Finance Law just published two articles on the FDCPA by Severson & Werson. Hyman & Kenney, Judicial Isolation of the Third Circuit’s “Glassine Window” FDCPA Decision in Douglass v. Convergent Outsourcing, 69 Conf. Cons. Fin. L. Q. 142 (Fall 2016):  here  Hyman & Kenney, The Effect of the FDCPA’s Class-Action Penalty Cap on Class Certification, 69… Read More

In Annunziato v. Collecto, Inc., 2016 WL 5407871, at *15–16 (E.D.N.Y. 2016), Judge Spatt held that a debt collector's goodwill is included in calculating the defendant's net worth under the FDCPA's class action penalty calculus.  This is contrary to the 7th Circuit's decision in Sanders v. Jackson, 209 F.3d 998, 1001 (7th Cir. 2000), which held that goodwill was not to… Read More

In Tourgeman v. Collins Financial Services, Inc., 2016 WL 3854540, at *2-4 (S.D.Cal. 2016), Judge Bencivengo dismissed FDCPA class allegations because the Plaintiff had no evidence of the defendant's net worth. In support of his position, Plaintiff cites to the fact that the FDCPA statutory award is a punitive in nature, i.e., the jury considers defendant's conduct and provides for… Read More

In Sykes v. Mel Harris & Assoc., Inc., 2016 WL 3030156 (S.D.N.Y., 2016), Judge Chin affirmed a $60M class action settlement. In this class action, Plaintiffs allege that Defendants -- a debt-buying company, a law firm, a process service company, and affiliated entities and individuals -- engaged in abusive debt collection practices to obtain default judgments against hundreds of thousands of… Read More

In Harper v. The Law Office of Harris & Zide, LLP, 2016 WL 2344194, at *5 (N.D.Cal., 2016), Judge Gilliam certified an FDCPA class, despite the impact of the statutory cap on class certification.  Plaintiffs alleged that Defendant, acting to collect debts from the putative class on behalf of BOA, failed to provide the exact disclosure required by 15 U.S.C. §… Read More

In Luther v. Convergent Outsourcing, Inc., 2016 WL 1698396, at *6 (E.D.Mich., 2016), Judge Cohn certified an FDCPA class action, finding that the small class recovery was no impediment to class certification. A class action is superior “[w]here it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved… Read More

In Datta v. Asset Recovery Solutions, LLC, 2016 WL 1070666, at *7-10 (N.D.Cal., 2016), Judge Koh rejected the argument that the FDCPA's $500,000 cap prevented certification of an FDCPA/glassine window case. . . . the Court observes that, as a general matter, courts routinely certify class actions where monetary recovery would be small. . . . Second, the efficacy of a single… Read More

In Gallego v. Northland Group Inc., 2016 WL 697383, at *3-4 (C.A.2 (N.Y.),2016), the Court of Appeals was called on to review the District Court's denial of class certification in an FDCPA class action.  The Court of Appeals first expounded on whether there was a substantial federal question, because the FDCPA claim was grounded in a violation of state law --… Read More

In  Shular v. LVNV Funding LLC, 2016 WL 685177, at *9-10 (S.D.Tex., 2016), Judge Lake denied class certification for almost all reasons applicable to FRCP Rule 23, but one of which was the inability to determine commonality or who was in the class because of questions whether the debts were "personal" in nature.  The class action arose from Plaintiff's contention… Read More

In Fosnight v. Convergent Outsourcing, Inc., 2016 WL 317678, at *2-3 (S.D.Ind., 2016), Judge McKinney certified an FDCPA class action grounded on a purportedly defective debt validation letter.  The Court rejected the argument that individual issues predominated because questions might arise whether the debt validation letter was the initial communication. Defendants primarily argue that individual issues of fact preclude a… Read More