The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
Plaintiff Stewart W. Maxwell ("Mr. Maxwell") brings a class action
lawsuit against defendant Arrow Financial Services, LLC ("Arrow") for
violations of the Maine Fair Debt Collection Practices Act ("Maine
FDCPA"), 32 MRSA § 11001 et seq., relating to its alleged
illegal practices in connection with the collection of certain debts that
are more than seven years old. This matter is before the Court on Mr.
Maxwell's motion for class certification. For the reasons stated below,
the motion for class certification is granted.
For the purposes of a motion to certify a class, the allegations in the
complaint are presumed to be true. Johns v. DeLeonardis,
145 F.R.D. 480, 482 (N.D. Ill. 1992). According to Mr. Maxwell's motion for
class certification, he is a resident of Maine whose debt on a Citibank
credit card was charged off in approximately April 1991 after he failed
to make the payments. Defendant Arrow is a limited liability company that
acts as a collection agency and purchases consumer debts at a portion of
the face value for the opportunity to enforce the debts against the
On approximately October 21, 2002, Arrow sent Mr. Maxwell a letter
informing him that his debt had been sent to a debt collection agency.
The alleged outstanding balance on the account was $6,707.24. The letter
offered to settle the past due account for 40 percent of the full balance
if the repayment was made in one payment by November 13, 2002. Relevant
to the claims at issue here, the letter stated: "Upon receipt of the
settlement amount and clearance of funds the appropriate credit bureaus
will be notified that this account has been settled." Mr. Maxwell
alleges, and Arrow admitted in response to requests for admission, that
the letter Mr. Maxwell received was a standard form letter and that there
are "more than 500 persons with Maine addresses who meet the following
criteria: (a) Defendant sent them a letter in the form represented by
Exhibit A; (b) on or after February 3, 2002; (c) seeking to collect a
debt charged off more than seven years previous to the date of the
letter; (d) which was not returned by the Postal Service." (Def.'s Resp.
to pl.'s Req. for Admis. ¶ 12).
Based on the statement cited above, Mr. Maxwell filed an amended
complaint claiming that Arrow has violated the Maine FDCPA, 32 MRSA §§
11013(2)(E) and (J), which prohibits debt collectors from making false or
misleading representations, because pursuant to the Fair Credit Reporting
Act ("FCRA"), "no consumer reporting agency may make any consumer report
containing . . . accounts placed for collection or charged to profit
and loss which antedate the report by more than seven years." 15U.S.C.
§ 1681c(a)(4). The Maine FDCPA relevant to the claims at issue prohibits
the same false, deceptive, or misleading representations as the
corresponding section of the federal Fair Debt Collection Practices Act
(the "federal FDCPA"). See Notice of Maine Exemption from the
Fair Debt Collection Practices Act, 60 Fed. Reg.
66,972 (Dec. 27, 1995). The damages portion of one of plaintiff s
claims is supplied by the federal FDCPA, 15 U.S.C. § 1692(k).
Given that the age of the debt was greater than seven years old, Mr.
Maxwell claims that Arrow's reference to a consumer's credit report in
the letter it sent is misleading because it tells an unsophisticated
consumer that, absent a payment, Arrow could have the debt appear on the
consumer's credit report as an unpaid delinquent debt. Mr. Maxwell
proposes a class consisting of "all natural persons with Maine addresses
who meet the following criteria: a. Defendant sent them a letter in the
form represented by Exhibit A; b. On or after a date one year prior to
the original filing of this action in state court; c. Seeking to collect
a debt charged off more than 7 years previous to the date of the letter;
d. Which was not returned by the Postal Service." (pl Mo. ford. Cert., at
Motions for class certification must meet the requirements set under
Rule 23 of the Federal Rules of Civil Procedure. Rule 23 establishes two
main requirements for class certification. First, the action must satisfy
all four elements of Rule 23(a): numerosity, commonality, typicality and
adequacy of representation. Amchem Prods, Inc. v. Windsor,
521 U.S. 591, 613 (1997); Harriston v. Chicago Tribune Co.,
992 F.2d 697, 703 (7th Cir. 1993). Second, the proposed class must satisfy at
least one of the three provisions under Rule 23(b). Mr. Maxwell seeks
certification under Rule 23(b)(3), which requires a plaintiff to
demonstrate that common questions of law or fact predominate over any
questions affecting only individual class members and that a class action
is a superior method of adjudicating the controversy.
As previously stated, for purposes of a motion to certify a class, the
allegations in the complaint are presumed true. Johns,
145 F.R.D. at 482. The court does not reach the merits of the complaint or
weigh evidence. Eisen v. Carlisle & Jacquelin, 417 U.S. 156,
177-78 (1974); Koch v. Stanard, 962 F.2d 605, 607 (7th Cir.
1992). The burden is on the party seeking class certification to
demonstrate that the requirements of Rule 23 are satisfied. Gen. Tel.
Co. of S.W. v. Falcon, 457 U.S. 147, 161 (1982); Trotter v.
Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984). Failure on part of the
movant to satisfy any one of the requirements of Rule 23(a) or (b)
precludes class certification. Patterson v. Gen. Motors Corp.,
631 F.2d 476, 480 (7th Cir. 1980). The court has broad discretion in
ruling on a motion for class certification. Retired Chicago Police
Ass'n v. Chicago, 7 F.3d 584, 596 (7th Cir. 1993). We now consider
each element of the Rule 23 requirements in turn.
A. Requirements of Federal Rules of Civil Procedure 23(a)
Rule 23(a)(1) requires that the class must be "so numerous that joinder
of all members is impracticable." Fed.R.Civ.P. 23(a)(1). Because there is
no mystical number at which the numerosity requirement is established,
courts have found this element satisfied when the putative class consists
of as few as 10 to 40 members. See, e.g., Markham v. White,
171 F.R.D. 217, 221 (N.D. Ill. 1997) (35 40 class members);
Hendricks Robinson v. Excel Corp., 164 F.R.D. 667, 671
(C.D. Ill. 1996) (38 class members). Although a plaintiff need not allege
the exact number or identity of the class members, the plaintiff
ordinarily "must show some evidence or reasonable estimate of the number
of class members." Long v. Thorton Township High Sch. Dist.,
82 F.R.D. 186, 189 (N.D. Ill. 1979). In determining whether the claimed
class contains a sufficient number
of members, the court is permitted to "make common sense
assumptions in order to find support for numerosity." Cannon v.
Nationwide Acceptance Corp., 1997 WL 139472, at *2 (N.D. Ill. March
25, 1997), quoting Evans v. U.S. Pipe & Foundry,
696 F.2d 295, 930 (11th Cir. 1983).
This Court previously has found that it is reasonable to assume the
number of potential class members satisfies the numerosity requirement
when the defendant allegedly used "preprinted, standardized debt
collection letters in attempting to collect on the [allegedly delinquent]
debt." Hamid v. Blatt, Hasenmitter, Leibsker, Moore &
Pellettieri, et al, 2001 WL 1543516, at *3 (N.D. Ill. Nov. 30,
2001), citing Peters v. AT & T, 179 F.R.D, 564, 567-68 (N.D.
Ill. 1998) ("Based on these facts it is reasonable to infer that many
individuals received the form collection letter and that joinder of all
the individuals would be impracticable."). Whether the numerosity
requirement is met in this case is complicated, however, by certain
exceptions to the seven year reporting limitation under specific sections
of the FCRA, 15 U.S.C. § 1681c(b)(1)-(3). Pursuant to the FCRA, "no
consumer reporting agency may make any consumer report containing . . .
accounts placed for collection or charged to profit and loss
which antedate the report by more than seven years." 15 U.S.C. § 1681c(a)(4).
However, creditors may report the satisfaction of a debt
when it is ...