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Janetos v. Fulton Friedman & Gullace, LLP

United States District Court, N.D. Illinois, Eastern Division

July 21, 2014

MARY T. JANETOS and ERIK KING, on behalf of plaintiffs and a class; PAMELA M. FUJIOKA, individually; and IGNACIO T. BERNAVE, individually; Plaintiffs,
v.
FULTON FRIEDMAN & GULLACE, LLP, and ASSET ACCEPTANCE, LLC, Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS M. DURKIN, District Judge.

Plaintiffs Mary Janetos and Erik King filed this purported class action against Fulton Friedman & Gullace, LLP ("FFG") and Asset Acceptance, LLC ("Asset") under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p ("FDCPA"). R. 86. Their class claims are contained in Counts I and II. Plaintiffs Pamela Fujioka and Ignacio Bernave have filed individual claims under the same Act. Those claims are contained in Counts III and IV. Janetos and King seek class certification as to Counts I and II of their second amended complaint. For the following reasons, their motion for class certification, R. 91, is granted.

BACKGROUND

Asset Acceptance is a debt collection agency. FFG is a law firm that manages Asset Acceptance's collection litigation. Asset Acceptance purchases debts from original creditors, including banks, credit card companies, and retail stores. In some cases, after attempting to collect a debt itself, Asset Acceptance refers the matter to FFG for additional collection efforts. In those cases, Asset Acceptance retains ownership of the debt, and FFG acts as its agent.

As is relevant here, on December 12, 2011, FFG sent a collection letter to Janetos's counsel, Daniel Edelman, attempting to collect an extinguished debt. That letter is attached to the second amended complaint as Exhibit C. On December 12, 2011, FFG directly sent King a letter, attempting to collect a debt King still owed. That letter is attached to the second amended complaint as Exhibit E. In Count I of their second amended complaint, the Plaintiffs allege that the letters violate 15 U.S.C. § 1692g, which outlines certain information that a debt collector must send a consumer in a written notice within five days "after the initial communication with the consumer in connection with the collection of any debt." In Count II, the Plaintiffs allege that the letters violate 15 U.S.C. § 1692e and § 1692e(10), which prohibits "false or misleading representations" regarding the collection of any debt.

On August 1, 2012, the Defendants filed a joint motion for judgment on the pleadings. R. 54. The Court denied the motion on March 4, 2013. R. 84. In its ruling, the Court discussed the different standards to apply to the letters in determining whether they violate the FDCPA: the "unsophisticated consumer standard" to letters sent directly to consumers and the "competent attorney standard" to letters sent to attorneys. Id. The Court also granted the Plaintiffs' request to file a second amended and consolidated complaint. The Plaintiffs filed that complaint on March 14, 2013. R. 86.

ANALYSIS

A party seeking to certify a class action must show that the putative class satisfies the four prerequisites of Federal Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and adequacy of representation. See Messner v. Northshore Univ. Healthsystem, 669 F.3d 802, 811 (7th Cir. 2012). The action must also satisfy at least one of the three subsections of Rule 23(b). See id. Here, the Plaintiffs seek certification under Rule 23(b)(3), which requires a finding that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." This is commonly referred to as "predominance."

Additionally, implicit in Rule 23's express prerequisites is the requirement that a class is "sufficiently definite that its members are ascertainable, " Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 493 (7th Cir. 2012), and not so overbroad that it "include[s] a great number of members who... could not have been harmed by the defendant's allegedly unlawful conduct." Messner, 669 F.3d at 824. District courts have "broad discretion" in determining whether a proposed class satisfies Rule 23. See Howland v. First Am. Title Inc. Co., 672 F.3d 525, 528 (7th Cir. 2012); see also Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2562 (2011) ("[M]ost issues arising under Rule 23... [are] committed in the first instance to the discretion of the district court."). Certification is only proper, however, "if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.'" Comcast Corp. v. Behrend, ___ U.S. ___, 133 S.Ct. 1426, 1432 (2013) (quoting Dukes, 131 S.Ct. at 2551-52).

"Plaintiffs bear the burden of showing that a proposed class satisfies the Rule 23 requirements." Messner, 669 F.3d at 811. "The Rule does not set forth a mere pleading standard"; instead, the plaintiff must satisfy Rule 23 "through evidentiary proof." Comcast Corp., 133 S.Ct. at 1432. "It is sufficient if each disputed requirement has been proven by a preponderance of evidence." Messner, 669 F.3d at 811 (citing Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008)).[1]

I. Numerosity

In the FFG's response to the Plaintiffs' interrogatories, it stated that letters similar to those sent to Janetos and King were sent to approximately 19, 000 addresses in Illinois. Joinder of that number of individuals would be impractical, and the numerosity requirement is easily met.

II. Commonality and Predominance

"Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury" and that "[t]heir claims... depend upon a common contention... of such a nature that is capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Dukes, 131 S.Ct. at 2551. Each of the letters sent to the purported class members are virtually identical and contain precisely the same language that the Plaintiffs allege violates the FDCPA. The facts are essentially the same-i.e., the parties all received a letter containing similar ...


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