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Anna Pawelczak, An Individual, On Behalf of Herself and All Others Similarly Situated v. Financial Recovery Services

October 26, 2012

ANNA PAWELCZAK, AN INDIVIDUAL, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
FINANCIAL RECOVERY SERVICES, INC., A MINNESOTA CORPORATION; AND JOHN AND
JANE DOES NOS. 1 THROUGH 25, DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff's Motion for Class Certification. For the reasons stated herein, Plaintiff's Motion is granted.

I. BACKGROUND

Plaintiff Anna Pawelczak ("Pawelczak") alleges that Defendant Financial Recovery Services, Inc. ("Defendant" or "FRS") violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the "FDCPA") by delivering pre-recorded telephone messages that failed to provide necessary disclosures under 15 U.S.C. §§ 1692d(6) and 1692e(11).

On or about April 19, 2010, Pawelczak, a resident of Mount Prospect, Illinois, incurred a financial obligation. In her Complaint, Pawelczak alleges that the obligation was for personal, family or household purposes. She further states that sometime before April 19, 2010, her financial obligation was assigned, transferred, or sold to FRS for collection purposes. FRS is a debt collection company that specializes in collecting personal debts on behalf of creditors, using the U.S. Mail, the telephone, and the Internet.

On March 31, 2011, Pawelczak filed this lawsuit. During discovery, Pawelczak learned that FRS hired a third-party company, Global Connect ("Global Connect"), to place phone calls to Pawelczak and other similarly situated consumers, using Caller ID numbers manually supplied to Global Connect by FRS. The voice recording Pawelczak received stated:

" . . .a marking phone call. If you are -- Anna Pawelczak -- please press the nine key to retrieve this important message or please return our call, toll-free, at 866-211-0336. Thank you. Hello, this is a very important call for - Anna Pawelczak. This is not a sales or marketing phone call. If you are -Anna Pawelczak - please press the nine key to retrieve this important message or please return our call, toll-free at 866-211-0336. Thank you."

Pl.'s Mot. for Class Certification at 4.

Other consumers received this identical message only with their name replacing Pawelczak's. Pawelczak alleges that these calls failed to identify FRS as the source of the call, and failed to indicate that the purpose of the call related to collecting a debt as is required by the FDCPA.

On July 10, 2012, Pawelczak filed the instant motion for class certification. Pawelczak seeks to certify a class of persons who meet the following definition:

(a) all persons (b) with telephone numbers in the "847" and "224" area codes (c) to whom Defendant placed a telephone call using Global Connect's services (d) that registered a "live connect" and played the entire Message (e) where no keys were pressed during the call (f) during a period beginning on March 31, 2010, and ending on April 21, 2010.

Pl.'s First Am. Compl. at 10.

Defendant opposes the certification of such a class, arguing that (1) the proposed class is not objectively identifiable; (2) individual issues predominate; (3) there are no common questions of law or fact; (4) Pawelczak's claims are not typical claims of the putative class; and (5) Pawelczak fails to fulfill Federal Rule of Civil Procedure 23(a)(4)'s fairness and adequacy requirements. Defendant also argues that because the amended class includes persons whose claims are time-barred the class should not be certified.

II. LEGAL STANDARD

To certify a class under Federal Rule of Civil Procedure 23 ("Rule 23"), a court must find: (a) that the class is definite enough that its members are identifiable, and (b) that it satisfies not only the requirements of Rule 23(a), but also one of the three subsections of Rule 23(b). Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 493 (7th Cir. 2012). Rule 23(a) requires that class members be so numerous that joining each is impracticable (numerosity); that there be class-wide questions of law or fact (commonality); that the named parties' claims or defenses be typical of the class (typicality); and that the representative be able to protect the class's interests adequately (adequacy). FED. R. CIV. P. 23(a).

Here, Pawelczak proceeds under Rule 23(b)(3), which provides that certification is only appropriate if the common questions of law or fact "predominate over any questions affecting only individual members, and . . . a class action is superior" to other available adjudication methods. FED. R. CIV. P. 23(b)(3). The Court must conduct a rigorous analysis to determine whether Pawelczak has shown, by a preponderance of the evidence, that the class meets the Rule 23 criteria. Messner v. ...


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