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Hale v. AFNI

October 23, 2009


The opinion of the court was delivered by: David H. Coar United States District Judge



Plaintiff Bouke Hale ("Plaintiff" or "Hale") brings this action alleging that Defendant AFNI, Inc. ("Defendant" or "AFNI") violated the Fair Debt Collection Practices Act ("FDCPA"). Plaintiff now moves for class certification pursuant to Federal Rule of Civil Procedure 23. For the reasons stated below, Plaintiff's motion for class certification is GRANTED.


This dispute stems from a form letter that AFNI allegedly sent to Plaintiffs regarding debt collection. According to Plaintiffs, AFNI sent each of them this letter, which stated that it was "unable to investigate" the individual's debt because he or she had "provided insufficient information to substantiate [the] claim" (Compl., Ex. B). Plaintiffs allege that AFNI's letter violated the FDCPA in two specific ways. First, the statements in the letter were false, in violation of 15 U.S.C. § 1692e, because AFNI was, in fact, able to verify and investigate the debts at issue, and Plaintiffs bore no obligation to prove that they did not owe money to AFNI. Second, the letter was AFNI's initial communication and neither contained nor was followed within five days by the disclosures required under 15 U.S.C. § 1692g. Plaintiffs contend that AFNI sent this false, non-responsive form letter to every consumer who wrote to AFNI without providing full payment. According to Plaintiffs, AFNI sends this letter in an effort to "stonewall" customers seeking to dispute their debts in the hope that they would simply give up and pay the alleged debt (Pl.'s Reply Br. 3-4).

Plaintiffs now seek to certify as a class all individuals, with addresses in Illinois, Indiana, or Wisconsin, to whom AFNI sent a letter in the form represented by the letter Plaintiff received (Compl., Ex. B), on or after July 10, 2007, and on or before July 30, 2008 (Pl.'s Mot. For Class Cert. 1). AFNI opposes class certification.


Rule 23 of the Federal Rules of Civil Procedure sets forth the relevant standards for maintaining class action suits in federal court. Under Rule 23(a), a proposed class must satisfy four conditions before a court will grant certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed. R. Civ. P. 23(a). In addition, the plaintiff must satisfy Rule 23(b), which offers only three potential bases for a valid class action. See Fed. R. Civ. P. 23(b). In the case before the Court, Plaintiff seeks certification under Rule 23(b)(3), which authorizes class actions where the "questions of law or fact common to the members of the class predominate over any questions affecting individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy." The burden of proof on a motion for class certification rests with the plaintiff. See Gen. Tel. Co. v. Falcon, 457 U.S. 147, 162 (1982).



Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). Although there is no "magic number" of class members for numerosity purposes, when a class numbers at least 40, joinder will be considered impracticable. Swanson v. Am. Consumer Indus., 415 F.2d 1326, 1333 (7th Cir. 1969). Plaintiffs' proposed class includes at least 1,000 individuals (Pl.'s Mot. for Class Cert., App. B), and Defendant offers no objection to numerosity. Because the proposed class well exceeds 40, and Plaintiffs need not specify the exact number of class members, see Marcial v. Cornet Ins. Co., 880 F.2d 954 (7th Cir. 1989), numerosity is satisfied.


Under Rule 23(a)(2), there must be a question of law or fact common to the class. Rule 23(b)(3), discussed below, more stringently requires that the common questions of law or fact predominate over questions pertaining to individual class members. Commonality generally exists when the defendant has engaged in "standardized conduct" toward the members of the proposed class. Smith v. Nike Retail Servs., Inc., 234 F.R.D. 648, 2006 WL 715788, at *4 (N.D. Ill. Mar. 22, 2006). "A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2)." Rosario v. Livaditis, 963 F.2d 1013, 1017 (7th Cir. 1992).

Challenging Plaintiffs' ability to meet both the commonality and typicality requirements of Rule 23(a), AFNI argues that, unlike the class he proposes to represent, Hale received an initial communication from AFNI before receiving the form letter centrally at issue in this case. However, even if this is true, the existence of some factual differences among class members' claims will not defeat commonality. Moreover, the commonality requirement is normally satisfied when the defendant's "standardized conduct" toward class members involves sending form letters. See Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998); Day v. Check Brokerage Corp., 240 F.R.D. 414, 418-19 (N.D. Ill. 2007) (collecting cases). In the present case, there is a "common nucleus of operative fact" that derives from the identical form letters that AFNI ...

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