Brendt Wollert, Plaintiff

v.

Client Services, Inc., Defendant

No. 98 C 3934

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION

2000 U.S. Dist. LEXIS 6485

March 24, 2000, Decided

DISPOSITION: [*1] Plaintiff’s Motion for Class Certification [ # 24] GRANTED.

COUNSEL: For Defendant: Scott G. Thomas, LAW OFFICES OF RAYMOND C. PERSIN, Chicago, Illinois.

For Plaintiff: Daniel A. Edelman, Cathleen M. Combs, James O. Latturner, Keith K. Keogh, EDELMAN, COMBS & LATTURNER, Chicago, Illinois.

JUDGES: David H. Coar, United States District Judge.

OPINIONBY: David H. Coar

OPINION: MEMORANDUM OPINION AND ORDER

Around March 5, 1998, Brendt Wollert received a collection letter from Client Services, Inc. The letter referred to a “balance due” of $ 305.01. In addition to the disclosures required by the Fair Debt Collection Practices Act, 15 U.S.C. @ 1692 et seq., the letter asked Wollert to “call our office immediately upon receipt of this letter.” In response to this letter, Wollert sued Client Services for allegedly violating the FDCPA. Wollert alleges that the call-us-immediately language overshadows the statutorily required disclosures, which explain that he has a right to obtain verification of the alleged debt. See 15 U.S.C. @ 1692(g); see also Johnson v. Revenue Mgt. Corp., 169 F.3d 1057 (7th Cir. 1999) (confusing debt [*2] collection letters can violate the FDCPA). According Wollert, unsophisticated consumers would be confused by this language.

Wollert moves this Court to certify a Rule 23(b)(3) class on whose behalf he and his attorneys would like to prosecute this case. See Fed. R. Civ. P. 23(b)(3). The proposed class includes all Illinois residents who, on or after March 5, 1997, actually received from Client Services a collection letter in the same form as the one that Wollert received, regarding non-business debts. Client Services has not opposed this motion. With one modification to Wollert’s proposed class, the Court grants his motion.

Rule 23(a) Threshold Requirements

Plaintiffs must meet four threshold requirements to maintain a lawsuit as a class action. These requirements are commonly referred to as:

(1) numerosity – the class must be so large so as to make joinder PAGE 3 2000 U.S. Dist. LEXIS 6485, *

impracticable;

(2) commonality – common questions of fact or law must exist between proposed class members;

(3) typicality – the named class representative’s claims or defenses must be typical of the purported class; and

(4) adequacy of representation – the named class representative must not [*3] have interests antagonistic to the class and class counsel must be competent.

See Fed. R. Civ. P. 23(a); see also Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998) (citing Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 138 L. Ed. 2d 689, 117 S. Ct. 2231 (1997)). Here the Rule 23(a) criteria are met.

First, although Wollert has not identified exactly how many individuals make up the class, it is fair to infer that the number is great enough to satisfy the numerosity requirement. See Peters v. AT&T, 179 F.R.D. 564, 566 (N.D. Ill. 1998). Client Services is a huge collection agency which, according to Wollert’s submissions, had collection activity in excess of $ 200 million in 1996 and 1997. Ordinarily, the Court would require more proof on the numerosity issue, but it is appropriate here to draw an inference in favor of numerosity because Client Services has not submitted any contrary evidence. See Gammon v. G.C. Servs. Ltd. Partnership, 162 F.R.D. 313, 317 (N.D. Ill. 1995) (finding numerosity met without proof of the actual number of absent class plaintiffs where the defendant did not contest numerosity). [*4] Further, if Client Services can show that joinder of all plaintiffs would be feasible, it can move for decertification.

Each of the remaining threshold requirements is also met. Commonality exists because each plaintiff’s claim depends on whether Client Services’ collection letter confuses the unsophisticated consumer. See, e.g., Franklin v. City of Chicago, 102 F.R.D. 944, 949 (“Where a question of law refers to a standardized conduct of the defendants toward members of the proposed class, a common nucleus of operative facts is typically presented, and the commonality requirement of Rule 23(a)(2) is usually met.”). The typicality requirement is also satisfied because all plaintiffs have the same theory of recovery against Client Services based on the same set of facts. See Keele, 149 F.3d at 595; De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (citations omitted). Finally, adequacy is satisfied because class counsel have capably handled numerous FDCPA class actions, see, e.g., Heintz v. Jenkins, 514 U.S. 291, 131 L. Ed. 2d 395, 115 S. Ct. 1489 (1995), and there is nothing to suggest that [*5] Wollert’s interest are antagonistic to the class interests.

Rule 23(b)(3) Class Requirements

In addition to these four requirements, to certify a 23(b)(3) class “questions of law or fact common to the members of the class [must] predominate over any questions affecting only individual members, and . . . a class action [must be] superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). These criteria are also satisfied here. First, although there might be some individual issues in this case, the predominate question is whether Client Services’ collection letter complies with the FDCPA. Since actual confusion by each class plaintiff is not an element of the FDCPA claim, see Gammon v. GC Servs. Ltd., 27 F.3d PAGE 4 2000 U.S. Dist. LEXIS 6485, *

1254, 1257 (7th Cir. 1994) (liability depends on the confusion of the hypothetical “unsophisticated consumer”), individual issues are negligible if they exist at all. Further, Wollert seeks to represent a class seeking only statutory damages. See Tarnoff v. American Honda Finance Corp., No. 96 C 6923, 1991 WL 98331 *5 (Feb. 19, 1999) (certifying a statutory-damages class, [*6] but leaving plaintiffs who sought actual damages to bring separate claims). Consequently, no individual damages issues exist. Finally, Congress has recognized the propriety of the class device under the FDCPA by providing for special damages in class actions. See 15 U.S.C. S 1692k.

Scope of the Proposed Class

While the criteria for class certification have been met, the time period for Wollert’s proposed class, must be altered. He requests a class encompassing individuals who received a collection letter from Client Services on or after March 5, 1997 – the date on his letter less one year. Since the statute of limitations for FDCPA claims is one year, see 15 U.S.C. @ 1692k(d), Wollert’s complaint would only reach back to June 26, 1997, a year from the date that he filed. See Maloy v. Philips, 64 F.3d 607, 607 (11th Cir. 1995). The class is therefore limited to individuals who received a letter sent on or after June 26, 1997. Id.

Conclusion

For the foregoing reasons, the Court grants Wollert’s motion for certification and certifies this action on behalf of Wollert and all Illinois residents [*7] who, on or after June 26, 1997, actually received from Client Services a collection letter in the same form as the one that Wollert received, regarding non-business debts.

Enter:

David H. Coar

United States District Judge

Dated: MAR 24 2000