United States District Court, N.D. Illinois, Eastern Division
DAVID MOORE, on behalf of himself and others similarly situated, Plaintiffs,
STELLAR RECOVERY, INC., Defendant.
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, District Judge.
Plaintiff David Moore filed a putative class action complaint against Defendant Stellar Recovery, Inc. alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Moore's two-count First Amended Complaint alleges that Stellar sent letters containing inconsistent statements regarding the current creditor (Count I) and that Stellar failed to report disputed debts to credit bureaus (Count II), both in violation of 15 U.S.C. § 1692e. Moore seeks to certify a class with respect to Count I consisting of "(a) all natural persons with Illinois, Indiana or Wisconsin addresses (b) to whom the defendant sent a letter in the form represented by Exhibit A [to Dkt. No. 55], (c) filled out with Stellar Recovery, Inc., as the current creditor (d) on or after March 27, 2012, and (e) on or before April 16, 2013." Stellar opposes Moore's renewed motion for class certification. For the reasons stated herein, this Court grants Moore's renewed motion for class certification.
This Court takes the following statements and allegations from the First Amended Complaint and from the briefs and exhibits submitted by the parties. Any findings made by this Court are for purposes of this motion. Stellar is in the business of collecting delinquent consumer debts. (Dkt. No. 31 at ¶ 7.) Stellar sent Moore a letter on December 26, 2012, identifying T-Mobile PCS Holdings LLC as the original creditor and Stellar Recovery, Inc. as the current creditor. (Dkt. No. 57-1, Ex. A.) The letter indicates that the "above-mentioned creditor" hired Stellar to present a claim on its behalf and offered to settle Moore's debt to that creditor. (Dkt. No. 57-1, Ex. A.) Through discovery, Moore learned that Stellar sent approximately 14, 600 letters identifying Stellar as the current creditor to individuals in Illinois, Indiana, or Wisconsin between March 27, 2012, and April 16, 2013. (Dkt. No. 57 at 6.) Stellar does not dispute that it sent 14, 617 such letters, but claims that Moore has not shown that any of the letters are actionable under the FDCPA. ( See, e.g., Dkt. No. 66 at 3-4.)
A district court has broad discretion in determining whether to certify an action as a class action. Kress v. CCA of Tennessee, LLC, 694 F.3d 890, 892 (7th Cir. 2012). There are four threshold requirements for class certification under Fed.R.Civ.P. 23(a): numerosity, commonality, typicality, and adequacy of representation. Id. at 892-93. In addition, provided the requirements of Rule 23(a) have been satisfied, an action may proceed as a class action if "the court finds that the questions of law or fact common to all class members predominate over questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3). "Predominance is a question of efficiency." Butler v. Sears, Roebuck and Co., 702 F.3d 359, 362 (7th Cir. 2012). In this regard, the common questions must be a significant aspect of the case that litigation as a class can resolve for all members of the class in one action. Messner v. Northshore University HealthSystem, 669 F.3d 802, 815 (7th Cir. 2012). Both determinations, that is, the determination under Rule 23(a) and Rule 23(b)(3), require a "rigorous analysis" by the district court that may extend beyond the pleadings to determine whether class certification is appropriate. Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2012). The plaintiffs bear the burden of showing that class certification is warranted by a preponderance of evidence. Messner, 669 F.3d at 811.
A. Rule 23(a)
Numerosity requires that "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1); Kress, 694 F.3d at 892. Here, Moore claims that Stellar sent letters containing inconsistent statements regarding the current creditor to more than 14, 000 individuals. Stellar did not challenge the number of letters sent in its opposition. Instead, Stellar questions whether Moore has shown that the letters sent by Stellar concerned a debt as defined by the FDCPA. But this inquiry is premature because the determination as to how many class members have a valid claim is one made after class certification. Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014) ("The defendants are thus asking us to put the cart before the horse. How many (if any) of the class members have a valid claim is the issue to be determined after the class is certified.") A class of more than 14, 000 members satisfies the numerosity requirement.
Commonality requires that "there are questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2); Kress, 694 F.3d at 892. "A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2)." Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). Here, Moore claims that the common question as to all class members is whether the letters Stellar sent to more than 14, 000 individuals violate the FDCPA. Such conduct-sending letters or documents to members of the proposed class-provides a common nucleus of operative fact. See Keele, 149 F.3d at 594 ("Common nuclei of fact are typically manifest where, like in the case sub judice, the defendants have engaged in standardized conduct towards members of the proposed class by mailing to them allegedly illegal form letters or documents.").
Typicality requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3); Kress, 694 F.3d at 892. The FDCPA prohibits the use of any false representation or deceptive means to collect or attempt to collect a debt. 15 U.S.C. § 1692e(10). The FDCPA also requires a debt collector seeking to collect a debt from a consumer to provide the consumer with the name of the creditor to whom the debt is owed. 15 U.S.C. § 1692g(a)(2). Here, Moore claims that Stellar sent letters that violated the FDCPA because the letters contained false or misleading representations as to the identity of the creditor. Specifically, each letter to each member of the proposed class-including Moore-named Stellar Recovery, Inc. as the current creditor. This makes Moore's claim representative of the claims of the members of the proposed class.
Adequacy of representation requires that "the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a)(4); Kress, 694 F.3d at 892. District courts must consider whether the named plaintiff is an adequate representative of the members of the proposed class and whether counsel for the proposed class is adequate. Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011). Here, Moore claims that he is an adequate class representative because his claim as well as the relief he seeks is identical to that of the proposed class. Stellar's arguments to the contrary are unpersuasive. Moore's decision to forgo class certification with respect to Count II is not relevant to class certification with respect to Count I because Moore's individual claim, Count II, does not conflict with Count I. See, e.g., Retired Chicago Police Association v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) ("Therefore, [a] class is not fairly and adequately represented if class members have antagonistic or conflicting claims.'") (quoting Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). Nor is Moore's experience with lawsuits alleging violations of the FDCPA relevant. Any familiarity Moore may have with the FDCPA is irrelevant in view of the objective standard applied to claims brought under the FDCPA. See Gruber v. Creditors' Protection Service, Inc. 742 F.3d 271, 273 (7th Cir. 2014) (explaining objective "unsophisticated consumer" inquiry). And any experience Moore may have as a plaintiff in actions alleging violations of the FDCPA does not preclude Moore from representing the class in this action. See Murray v. GMAC Mortgage Corp., 434 F.3d 948, 954 (7th Cir. 2006) (rejecting notion that "professional plaintiff" may not serve as class representative).
Moore also claims that he has retained experienced counsel who is well-qualified to handle this type of action. Because Stellar has not challenged whether counsel for the proposed class is adequate, and having no reason to question the competence of Moore's counsel, this Court accepts Moore's representation concerning his counsel's experience for purposes of Rules 23(a)(4) and 23(g). ( See Dkt. No. 57-1, Ex. B.) That experience reflects experience in handling ...