Class Action Against Law Firm Alleging Violations of Debt Collection Laws Warranted Class Action Treatment over Defense Challenge to Adequacy of Representation based on Claim that Class Action was Filed by “Professional Plaintiff” and over Challenge to Superiority Prong of Rule 23(b)(3) Class Action Certification Test based on Negative Net Worth of Defendant and FDCPA’s 1% Net Worth Cap on Liability Connecticut Federal Court Holds
Plaintiff filed a class action against the law firm of Wolpoff & Abramson alleging violations of the federal Fair Debt Collection Practices Act (FDCPA). Lemire v. Wolpoff & Abramson, LLP, 256 F.R.D. 321, 2009 WL 827764, *1 (D.Conn. 2009). According to the allegations underlying the class action, Wolpoff’s communication with Connecticut consumers violated state law and therefore a per se violation of the FDCPA, id. Wolpoff argued that a violation of Connecticut debt collection law is not a per se violation of the FDCPA. Id. Plaintiff moved the district court to certify the litigation as a class action, id. The district court granted plaintiff’s motion and granted class action treatment.
After summarizing the well known rules for class action certification under Rule 23, see Lemire, at *2, the court turned to the merits of the motion. Wolpoff conceded that the numerosity test of Rule 23(a)(1) had been met, id., at *3. But as to commonality, Wolpoff argued that each collection letter sent to a Connecticut resident would have to be “analyzed individually to determine whether it contains actionable language” because different letters were sent to consumers who were represented by counsel than those who were unrepresented. Id. The federal court found, however, that the letters were similar in material respects and that the differences go to the merits of the class action claims. Id., at *3-*4. Given the “common content of Wolpoff’s letters” sent directly to consumers, the commonality test had been met. Id., at *4. And the letters to the attorneys were sufficiently similar to warrant class action treatment, and even if different could be addressed by dividing the group into two classes. Id., at *5. And the typicality test was satisfied because Wolpoff “failed to identify any unique ‘claims or defenses,’” id., at *6.
With respect to the adequacy of representation test, Wolpoff challenged plaintiff’s adequacy on the grounds that she is a “professional plaintiff.” Lemire, at *6. Wolpoff advised the district court that plaintiff filed an earlier FDCPA class action and that her husband also had filed a class action, and that all three actions were filed by the same law firm. Id. The court responded at page *6, “While this accusation may be significant to Wolpoff, I am not convinced why it should be significant to this Court.” In essence, the federal court found that there is “no reason why a repeat plaintiff would be a worse representative of similarly situated persons.” Id., at *7.
The federal court then turned to Rule 23(b)’s requirements for class action certification. The district court refused to certify a Rule 23(b)(1) class, but found that a (b)(3) class could be certified. The federal court explained that Wolpoff did not really contest the predominance prong of Rule 23(b)(3)’s class action test, but rather the superiority prong. Lemire, at *10. Wolpoff argued that it had a negative net worth, so a class action would not be the superior means of redressing the dispute. Id. Because the FDCPA limits class action liability to $500,000 or 1% of the defendant’s net worth, Wolpoff argued that putative class members were better off pursuing individual actions. Id., at *10. The district court nevertheless certified the class because, at this stage of the litigation, the defense went to damages rather than the appropriateness of certification. Id., at *11. Accordingly, the district court granted plaintiff’s motion for class action treatment, id., at *12.