Wednesday, December 12, 2012

Fighting FDCPA Class Actions: Challenging The Adequacy Of The Class Representative

The number of class actions filed against the credit and collection industry continues to rise, and FDCPA class actions remains a favorite among consumer attorneys.  Although it is easy for a consumer to file a class action, getting a class certified is no walk in the park.  The consumer bears the burden of proving that all of the requirements of Rule 23 of the Federal Rules of Civil Procedure have been satisfied, and this includes proving that they are an adequate class representative.  When faced with an FDCPA class action, collectors should not overlook potential challenges to the class representative.  An early and thorough assessment of the named plaintiff in an FDCPA class action could provide a key to your defense. 

 Before focusing on the adequacy requirement, here’s a brief overview of the standards governing class actions.  Remember that when a motion for class certification is filed, the consumer has the burden of proof.  The Court must deny the motion unless the consumer can provide evidence to satisfy all four elements of Rule 23(a) of the Federal Rules of Civil Procedure, and at least one of the subsections of Rule 23(b).  See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).  The consumer has the burden of “affirmatively demonstrat[ing] compliance with the four prerequisites of Rule 23(a).”  Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011).  The consumer’s adequacy to serve as class representative is one of the four requirements of Rule 23(a).

Experienced consumer attorneys often have a standard motion for class certification that they use in every case.  But the court cannot simply rubber stamp a consumer’s motion and certify the class.  The Supreme Court has held that no class may be certified until the district court conducts a “rigorous analysis” of the evidence to determine if it supports each element of Rule 23.  See General Tel. Co. Of Southwest v. Falcon, 457 U.S. 147, 161 (1982) (reversing certification order: class action “may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.”); see also Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (9th Cir. 2001) (affirming denial of certification:  “Before certifying a class, the trial court must conduct a ‘rigorous analysis’ to determine whether the party seeking certification has met the prerequisites of Rule 23. (citation).”); Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1029 (8th Cir. 2010) (affirming denial of certification:  “In making its determination, the district court must undertake a ‘rigorous analysis’ that includes examination of what the parties would be required to prove at trial.”).

Consumer attorneys often argue that the merits of their claim should not be considered in the context of a motion for class certification.  But the Supreme Court has recognized that the “class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action,” and that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.”  Falcon, 457 U.S. at 160 (citations omitted).  The Supreme Court recently reiterated this point, and emphasized that “Rule 23 does not set forth a mere pleading standard,” but rather, “[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule – that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”  Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550-52 (2011) (citation omitted). 
With this background, let’s focus on the adequacy requirement more specifically.  What exactly does it take to be an adequate class representative?  Rule 23(a)(4) of the Federal Rules of Civil Procedure provides that a consumer must show “that the representative parties will fairly and adequately protect the interests of the class.”  What does this mean?  The Supreme Court has held that the adequacy analysis of Rule 23(a) “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc., 521 U.S. at 625.  For this reason, a court should deny certification if the named class representative is subject to a unique defense that may distract from the litigation.  See Hanon v. DataProds. Corp., 976 F.2d 497, 508 (9th Cir. 1992) (denying class certification; “Hanon’s unique background and factual situation require him to prepare to meet defenses that are not typical of the defenses which may be raised against other members of the proposed class.”). 
Thus, collectors should seek to develop facts during discovery that show that the class representative may be subject to a unique defense.  See, e.g., Beck v. Maximus, Inc., 457 F.3d 291, 300 (3d Cir. 2006) (reversing order certifying FDCPA class; remanding to determine if class representative was adequate in light of potential bona fide error defense).

What about a consumer that cannot remember anything during their deposition?  Or a consumer with poor credibility?  They will not make a strong class representative.  Courts have denied certification in FDCPA actions where the class representative lacks credibility or has a bad memory.  See, e.g., Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998) (FDCPA class representative not credible: “The fact that Savino offered differing accounts about the letters that form the very basis for his lawsuit surely would create serious concerns as to his credibility at any trial.”); Dotson v. Portfolio Recovery Assocs., LLC, 2009 WL 1559813, **3-4 (E.D. Pa. June 3, 2009) (FDCPA plaintiff gave false testimony and had a bad memory: “Because plaintiff is unable to provide credible testimony, he cannot adequately protect the interests of absent members of the proposed class.”).

How about a consumer who does not know what claims she is pursuing and has no idea what is happening in the litigation?  She won’t make a good class representative either.  Courts have denied certification where the class representative is not familiar with the claims asserted, has not been actively involved in the litigation, or has delegated the entire case to their attorneys for handling. See, e.g., Levine v. Berg, 79 F.R.D. 95, 98 (S.D.N.Y. 1978) (“Plaintiff's deposition testimony reveals an alarming adversity to unearthing the facts relevant to her claim, as well as a total reliance on her counsel, to whom she ‘gave . . . the case and . . . figured whatever he had to do, he did.’”); Burkhalter Travel Agency v. MacFarms Int’l, Inc., 141 F.R.D. 144, 154 (N.D. Cal. 1991) (class representative could not identify defendants and was unfamiliar with scope of class he represented: “As plaintiff’s counsel would be acting on behalf of an essentially unknowledgeable client, certifying a class with Specialty as its representative would risk a denial of due process to the absent class members.”); Efros v. Nationwide Corp., 98 F.R.D. 703, 707-08 (S.D. Ohio 1983) (plaintiff gave “unfettered discretion” to her attorneys and her deposition revealed “glaring lack of familiarity with the facts of this litigation”); Lubin v. Sybedon Corp. 688 F. Supp. 1425, 1462 (S.D. Cal. 1988) (class representative’s unfamiliarity with case was “alarming” where he testified, inter alia, that “he had never read or seen either the original complaint or the amended complaint, that he did not even recognize the names of many of the defendants, [and] that he misunderstands the nature of the complaint’s fraud allegations”); Kelly v. Mid-America Racing Stables, Inc., 139 F.R.D. 405, 409 (W.D. Ok. 1990) (“these plaintiffs are inadequate representatives because of their almost total lack of familiarity with the facts of their case. Indeed, what the plaintiffs know appears to come entirely from their counsel.”).

In sum, do not assume that the consumer who has sued you can adequately represent the class.  Collectors faced with FDCPA class actions should conduct an early and continuing assessment of whether the case can meet all of the requirements of Rule 23.  During this process, they should not forget to develop evidence relating to the adequacy of the class representative.  Not everyone will qualify. 



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