CHRISTINE M. ARGUELLO United States District Judge
This matter comes before the Court on Defendant Olson Associates, d/b/a Olson
The material facts of this Fair Debt Collection Practice Act case are quite straightforward. Plaintiff Kellie Rhodes incurred a debt of $732.06 for emergency medical care from APEX Emergency Group-St. Anthony North. APEX assigned this debt to North American Recovery, Inc. (N.A.R.). (Doc. # 23-2 at 2.) Thereafter, N.A.R. hired Olson Associates, P.C., d/b/a Olson Shaner, a law firm, to initiate legal proceedings against Rhodes relating to this debt. (Doc. ## 13 at ¶ 4.) Olson Shaner sent its "First Notice" regarding the debt to Rhodes on July 30, 2014. (Doc. # 13-1 at ¶ 6.) The "First Notice" appeared on Olson Shaner's letterhead, but was signed by "Kelsey Mirelez, Attorney for N.A.R., Inc." (Doc. # 23-2 at 2.)
Plaintiff called Olson Shaner on September 6, 2013, and spoke with a representative named Liz;
Olson Shaner instructs its employees to use the following scripted voicemail message ("the Scripted Voicemail") when they attempt to reach alleged debtors and those debtors do not answer the phone:
(Doc. # 23-3.) On September 17, 2013, an Olson Shaner representative named Tia Metters left Plaintiff a materially identical version of the Scripted Voicemail, which was recorded as follows:
(Doc. ## 13-5; 13-2 at 2 (log notes indicating that Defendant's representative "left script message" for Plaintiff on September 17.)) Ms. Metters left an identical voicemail message for Plaintiff on both September 18 and 19, 2013. (Doc. ## 13-6; 13-7; 13-2.) The content of these three messages is the subject of this action.
In her Motion for Class Certification and Appointment of Class Counsel (Doc. # 25), Plaintiff seeks to certify the following Class:
Defendant has a written policy to leave scripted voicemail messages that are very similar to those left for Plaintiff and that fail to disclose that (1) it is debt collector, (2) it is calling to collect on a debt, and (3) that any information it collects will be used for that purpose. See (Doc. ## 25-1 (Defendant's "Leaving Message Policy," bates stamped OS000039); 25-2 at 9 (Defendant's Responses to Plaintiff's First Set of Interrogatories, stating that "Any voicemail message that would have been left is expected to be consistent with the voicemails at issue in this case and the document attached hereto, carrying Bates-Stamp No. OS000039."))
Defendant states that of its approximate 6,700 collection accounts, "the likelihood that Defendant would have left a voicemail message is estimated to be about 50% of those accounts [i.e., 3350 accounts]. However... Defendant would not be able to determine the exact number of persons for whom Defendant left a message without reviewing each of those individual accounts." (Doc. # 25-2 at 8.) Additionally, Defendant keeps individual records indicating when its representatives leave a "SCRIPT MESSAGE" for alleged debtors. See, e.g. (Doc. # 13-2 at 2) (noting that it left Plaintiff a "SCRIPT MESSAGE" on three different occasions in September of 2013); (Doc. # 29 at 6) (noting that "In order to determine whether a voicemail message was left, each of the account notes would need to be reviewed to see if there are any notations regarding a voicemail message.")
On March 31, 2014, Plaintiff filed a putative Class Action Complaint against Defendant for violations of the FDCPA (Doc. # 1.) Defendant then filed a Motion for Summary Judgment on June 6, 2014. (Doc. # 13.) Plaintiff filed a Cross-Motion for Summary Judgment as to Liability on July 9, 2014, and a Motion for Class Certification and Appointment of Class Counsel on July 18, 2014. (Doc. ## 24, 25.)
Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is "material" if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). A dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the non-moving party. Allen v. Muskogee, Okl., 119 F.3d 837, 839 (10th Cir.1997). When reviewing motions for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id. However, conclusory statements based merely on conjecture, speculation, or subjective belief do not constitute competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004).
The moving party bears the initial burden of demonstrating an absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial does not need to disprove the other party's claim; rather, the movant need simply point the Court to a lack of evidence for the other party on an essential element of that party's claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Once the movant has met its initial burden, the burden then shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
The Court applies the same standard on cross motions for summary judgment. Each party bears the burden of establishing that no genuine issue of material fact exists and its entitlement to judgment as a matter of law. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000). Cross motions for summary judgment "are to be treated separately; the denial of one does not require the grant of another." Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). But where the cross motions overlap, the Court may address the legal arguments together. Id. In this case, the legal issues and arguments presented by each summary judgment motion are almost identical. Therefore, the Court addresses the legal issues together.
A class may be certified only if all four of the following prerequisites are met:
Fed.R.Civ.P. 23(a). A party seeking class certification must show "under a strict burden of proof" that all four requirements are clearly met, as well as show that the case falls into one of the three categories set forth in Rule 23(b). Trevizo v. Adams, 455 F.3d 1155, 1161-62 (10th Cir.2006); Shook v. El Paso Cnty., 386 F.3d 963, 971 (10th Cir.2004); Tabor v. Hilti, Inc., 703 F.3d 1206, 1227 (10th Cir.2013).
The Court will address the parties' respective summary judgment motions before turning to Plaintiff's Motion for Class Certification.
Congress enacted the FDCPA ("the Act") in 1977 to "eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692e. The Act prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. As pertinent to the present case, "the placement of telephone calls without meaningful disclosure of the caller's identity" is a violation of the Act, as is the failure to disclose, in any "subsequent communication" with a debtor, that "that the communication is from a debt collector." 15 U.S.C. § 1692d; 1692e(11).
Because the FDCPA is a strict liability statute, Plaintiff need demonstrate only one violation of its provisions to be entitled to a favorable judgment. Doshay v. Global Credit Collection Corp., 796 F.Supp.2d 1301, 1303-04 (D.Colo.2011).
To establish a violation of the FDCPA, Plaintiff must prove the following four elements:
Duncan v. Citibank (S.D.), No. 06-246, 2006 WL 4063023, at *5 (D.N.M. June 30, 2006) (quoting 29 M. Wengert, Causes of Action 2d 1 § 49 (2005)). Here, the first three elements of Plaintiff's claim are undisputed (Doc. # 23 at ¶¶ 1-5)—accordingly, the Court's analysis on summary judgment is limited to the fourth element.
The Act broadly defines a "communication" as the "
In support of its interpretation of "communication," Defendant cites Marx v. General Revenue Corp., 668 F.3d 1174, 1177 (10th Cir.2011) aff'd, ___ U.S. ___, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013). In Marx, a debt collector sent a facsimile "employment verification form" to a debtor's employer. Id. at 1176. The form contained the debt collector's name ("GRC"), address, and phone number, as well as an "ID" number representing the debt collector's internal account number for Plaintiff. Id. The form explicitly indicated that its purpose was to "verify employment" and to "request employment information," and blanks were left for the employer to fill in the individual's employment status. Id. The Tenth Circuit held that the form was not a "communication" for purposes of 15 U.S.C. § 1692c(b), which provides that a "debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer." Id. at 1177. In doing so, it noted:
Id. (emphasis added).
Marx's reasoning is inapplicable here for several reasons. Most significantly, Marx involved a "third party" communication under an entirely different statutory section (Section 1692c(b))—
In contrast, the Scripted Voicemails left here were not left for a third party for the purpose of employment verification; instead, they were left for Plaintiff directly, for the sole purpose of collecting a debt, and thus the concern was not so much embarrassment, loss of job, or denial of promotion, but whether Plaintiff was aware that a debt collector was attempting
This common-sense interpretation of what it means to "indirectly" convey information regarding a debt is supported by the Federal Trade Commission's ("FTC's") advocacy of a broad interpretation of the scope of section 1692e.
Id. (emphasis added). Although the FTC does not promulgate regulations pertaining to the FDCPA, as the agency tasked with enforcement of the statute, its interpretation lends helpful support here. See Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1327 n. 8 (7th Cir.1997) (giving "due weight" to the FTC's "informed interpretation" of a statutory term in the FDCPA); Kaltenbach v. Richards, 464 F.3d 524, 528 (5th Cir.2006) (deferring to the above-cited FTC's Staff Commentary on the FDCPA, 53 Fed.Reg. 50097-02, at *4 (Dec. 13, 1988), in defining a statutory term).
Unsurprisingly, the FTC's "common sense" reading of what it means to "indirectly" communicate with a debtor about a debt is in line with the view of the majority of cases
Accordingly, because the Court has concluded that the three voicemails constituted "communications" for purposes of Section 1962e, and because it is undisputed that Olson Shaner failed to disclose that the communications were "from a debt collector," as required by Section 1692e(11), Defendant violated that statutory provision, and Plaintiff is entitled to summary judgment on this claim.
The FDCPA prohibits a debt collector from engaging in "any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt," and provides that such conduct includes "the placement of telephone calls without
Importantly, in determining whether a debt collection practice is deceptive or
In interpreting any statute, the Court must "determine congressional intent, using traditional tools of statutory construction." United States v. Manning, 526 F.3d 611, 614 (10th Cir.2008). The plain language of § 1692d requires that the disclosure of identity be "
Torres v. ProCollect, Inc., 865 F.Supp.2d 1103, 1105 (D.Colo.2012).
Here, it is undisputed that the caller who left Plaintiff voicemails identified herself as calling from Olson Shaner, a "law firm." Defendant's only argument that this represents "meaningful disclosure" of Olson Shaner's identity rests on its assumption that a consumer would be able to
Although this assumption might well be true when it comes to particularly shrewd consumers with excellent recall, whether "meaningful disclosure" occurred is viewed objectively, from the perspective of the "least sophisticated consumer." It would not be readily apparent to the "least sophisticated" consumer that Olson Shaner, in describing itself as a "law firm" calling about a vague "personal matter," was acting as a debt collector, and the call was placed for the sole purpose of collecting on a debt. Moreover, the voicemails here provided no other suggestion or clues that they came from a debt collector rather than a law firm, and dealt with a debt rather than a "personal matter." Put another way, "this is not a case where the fact that the communication is from a debt collector would be apparent even to the least sophisticated consumer." See Foti, 424 F.Supp.2d at 669. Instead, a consumer would have to, upon hearing the message, recall that she had previously communicated with Olson Shaner. This represents an "unreasonable" burden on "[t]he least sophisticated consumer, who may receive voluminous messages and calls." Id. Indeed, allowing debt collectors to circumvent the "meaningful disclosure" requirements by pointing to its prior communications with a consumer would effectively "eviscerate the statute's protections
In sum, because Defendant's messages did not "meaningfully disclose" Olson Shaner's identity, the voicemails also violated Section 1692d(6), and Plaintiff is similarly entitled to summary judgment on this claim.
In her Motion for Class Certification and Appointment of Class Counsel (Doc. # 25), Plaintiff seeks to certify the following Class:
Defendant specifically objects to the fifth component of this definition, contending that it would make it "nearly impossible to identify potential class members. Such an inquiry is likely to involve potentially thousands of hearings, with the production of potentially thousands of voicemail messages (if they are even available) to determine whether they meet Plaintiff's proposed class definition." (Doc. # 29 at 5.) As the Court discusses below, in its discussion of whether Plaintiff meets Rule 23(a)(3)'s "typicality" requirement, given Defendant's own record-keeping practices and the possibility of electronic keyword searching, the identification of class members will not be nearly as difficult as Defendant asserts. Nevertheless, the Court agrees that the fifth element of the proposed definition is imprecise, because it appears to conflate Section 1962e(11)'s disclosure requirements in the case of an "initial communication" (i.e., "that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose") with its disclosure requirement in a "subsequent communication"
Defendant proposes that that subsection (5) of Plaintiff's proposed definition be modified to read: "(5) where Olson Associates, P.C. left a message for the consumer that is materially identical to the following message:
The Court finds Defendant's proposed definition to be superior because it is more precise (as to the specific "subsequent communication" claims in this case), and, per Defendant's representations, could streamline the process of identifying potential class members. As such, the definition of the class is:
Rule 23(a) of the Federal Rules of Civil Procedure sets forth the following prerequisites to class certification:
Fed.R.Civ.P. 23(a). As the party seeking class certification, Plaintiff must demonstrate that all four prerequisites of Rule 23(a) are clearly met, as well as show that this case falls into one of the three categories set forth in Rule 23(b). See Shook, 386 F.3d at 971; Tabor, 703 F.3d at 1227. In deciding whether certification is appropriate, doubts should be resolved in favor of certification. See Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir.1968) ("if there is error to be made, let it be in favor and not against the maintenance of a class action.")
In order to meet this element, "[t]he burden is upon [a] plaintiff[ ] seeking to represent a class to establish that the class is so numerous as to make joinder impracticable." Trevizo, 455 F.3d at 1162 (internal quotation omitted). There is "no set formula to determine if the class is so numerous that it should be so certified." Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 436 (10th Cir.1978). Instead, this is a fact-specific inquiry, and the district court has wide discretion in making this determination. Trevizo, 455 F.3d at 1162.
Plaintiff has satisfied numerosity here. It is undisputed that approximately 3350 individuals with collections accounts received at least one voicemail message that conformed to Defendant's "Scripted Voicemail." Joinder of this number of Plaintiffs would be impracticable.
Defendant did not challenge Plaintiff's argument that she established numerosity, except in stating that "the parties and the Court are likely to encounter significant difficulties in identifying the potential class members." (Doc. # 29 at 8.) Specifically, Defendant argues that "In order to review each account in a timely fashion, several individuals would be required to review the applicable accounts, which is likely to take several weeks, even if the individuals worked a full work week to participate in this task." (Id. at 6.)
"Although the identity of individual class members need not be ascertained before class certification, the membership of the class must be ascertainable." Manual For Complex Litigation (Fourth) § 21,222 (2004). "An identifiable
In order to demonstrate commonality, plaintiffs must also show that there are questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2). Not all questions of law and fact need be common to the class, but, as the Supreme Court recently clarified, this requirement is not met merely because the putative class members allegedly "all suffered a violation of the same provision of law." See Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). Indeed, it is not just the presence of common questions that matters, but the ability of the class action device to "resolve an issue that is central to the validity of each one of the claims in one stroke." See id. "The district court retains discretion to determine commonality because it is `in the best position to determine the facts of the case, to appreciate the consequences of alternative methods of resolving the issues of the case and... to select the most efficient method for their resolution.'" J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir.1999) (internal citation omitted).
The overriding common question here is grounded in Defendant's Scripted Voicemail and whether that Scripted Voicemail violated the FDCPA. Defendant has estimated that approximately 3350 of its account holders received a materially identical Scripted Voicemail,
Rule 23(a)(3) requires the claims of a named plaintiff to be "typical" of the claims of the class she seeks to represent. However, the interests and claims of a named plaintiff and class members need not be identical to satisfy typicality. DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1198-99 (10th Cir.2010). Provided that the claims of named plaintiffs and class members are based on the same legal or remedial theory, differing fact situations of the class members do not defeat typicality. Id.
Here, the named Plaintiff's claims are based upon the same fact pattern—the receipt of a Scripted Voicemail—as the claim of every other member of the putative class. Additionally, the named Plaintiff advances the same legal theory as the putative class in support of the defendant's liability, i.e., that these Scripted Voicemails violate the FDCPA. Accordingly, the named Plaintiff has met the burden of showing that her claims are typical of those of the class. See Manno, 289 F.R.D. at 687 (Plaintiff's "claims are typical because he alleges that [defendant] called him ... and failed to disclose the call was from debt collector. To prove his own case, [plaintiff] will have to set forth proof that such calls, which affected all class members, violated the FDCPA."); Hale v. AFNI, Inc., 264 F.R.D. 402, 405 (N.D.Ill. 2009) (named plaintiff's claim was "typical to the class because it arises from the same form letter allegedly received by all class members, and it is based on the same legal theory that the letter violates the FDCPA"); Chapman v. Worldwide Asset Management, L.L.C., 2005 WL 2171168 (N.D.Ill.2005) (typicality satisfied when "all members of the class will be persons who received the form notice," named plaintiff received the form notice, and there was no indication that named plaintiff was "situated differently than other members of the class").
Moreover, as discussed in the Court's summary judgment holding, the Court need not "delve into whether each putative class member did, or did not, have prior contact with [Defendant] and whether each class member did, or did not, have prior knowledge that [Defendant] was a debt collector." See Manno, 289 F.R.D. at 684-85. This is "because the statute requires a debt collector to identify itself on every call and whether it did so or not is decided by reference to an objective inquiry—whether the `least sophisticated consumer' would know.'" Id. "Thus, whether [Plaintiff] or other class members were actually misled, or were subjectively unaware that [Defendant] was a debt collector, is not an individualized issue defeating commonality."
Rule 23(a)(4) requires that the representative parties "fairly and adequately protect the interests of the class." In the Tenth Circuit, adequacy of representation depends on resolution of two questions. Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir.2002). These questions are: "`(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?'" Id. at 1187-88 (internal citation omitted).
Plaintiff contends that there are no conflicts between the named Plaintiff, counsel, or other class members. The named Plaintiff submitted an affidavit indicating that she will vigorously prosecute the action on behalf of the class and that she understands her responsibilities as a class representative. (Doc. # 25-3.) As far as class counsel are concerned, Plaintiff asserts that her counsel are experienced class action litigators, particularly of consumer-related class actions. (Doc. # 25 at 11.) Since Defendant has not raised any issue concerning the adequacy of either the class representative or class counsel, and there is no reason to question Plaintiff's assertions, Plaintiff has satisfied the adequacy of representation requirement.
Plaintiff seeks class certification under Rule 23(b)(3), which allows for class certification if "the court finds that the 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." Where common questions "predominate," a class action can achieve economies of time, effort, and expense as compared to separate lawsuits, permit adjudication of disputes that cannot be economically litigated individually, and avoid inconsistent outcomes, because the same issue can be adjudicated the same way for the entire class. Fed. R.Civ.P. 23(b)(3), advisory committee's note (1966).
Plaintiff meets the predominance requirement here for the same reasons previously discussed with regard to commonality and typicality. Namely, the questions of law or fact common to the members of this class predominate over individual issues, because the Scripted Voicemail was Defendant's standardized policy. See Kimball, 2011 WL 3610129, at *6 ("[Plaintiff's] claim and the claims of the proposed class members all rest on the question of whether or not the [Defendant's] Message violates the FDCPA. Accordingly, the Court finds that the predominance requirement of Rule 23(b)(3) is satisfied"); Pawelczak v. Fin. Recovery Servs., Inc., 286 F.R.D. 381, 387 (N.D.Ill. 2012) ("[A] debt collector violates the FDCPA by placing a telephone call and failing to meaningfully disclose its identity. As such, the Court finds [Plaintiff's] proposed class satisfies Rule 23(b)(3)'s predominance requirement.").
As for the superiority requirement, Rule 23(b)(3) sets forth four nonexclusive factors in determining whether this factor is met:
Application of these factors shows that a class action is the superior method to adjudicate this case. No class member has demonstrated an interest in prosecuting a claim individually, there are no other cases against Defendant involving the issues presented in this case by a proposed class member, the forum is desirable as the proposed class contains Colorado residents only, and there will be no difficult case-management issues because the facts and claims are very straightforward and the evidence necessary to prosecute the case is within Defendant's records. Additionally, the FDCPA permits individual plaintiffs to recover up to $1,000 in statutory damages. See 15 U.S.C. § 1692k. Thus, the potential recovery for an individual plaintiff is unlikely to provide sufficient incentive for individual members to bring their own claims. Moreover, courts have held that FDCPA class actions are usually superior for reasons of judicial economy. See, e.g., Abels v. JBC Legal Grp., P.C., 227 F.R.D. 541, 547 (N.D.Cal.2005); Piper v. Portnoff Law Associates, 262 F.Supp.2d 520 (E.D.Pa. May 15, 2003); Brink v. First Credit Resources, 185 F.R.D. 567 (D.Ariz. 1999).
For the reasons detailed above, the Court DENIES Defendant's Motion for Summary Judgment (Doc. # 13), GRANTS Plaintiff's Cross-Motion for Summary Judgment as to Liability (Doc. # 24), and finds that Defendant's "Scripted Voicemail" messages, left for the named Plaintiff on three different occasions, violated 15 U.S.C. §§ 1692d(6) and 1692e(11). It is
FURTHER ORDERED that, having found the requirements of Rule 23(a) and Rule 23(b)(3) satisfied, the Court GRANTS Plaintiff's Motion for Class Certification and Appointment of Class Counsel (Doc. # 25). Plaintiff's proposed class is certified under Federal Rule of Civil Procedure 23(b), and Plaintiff's counsel is appointed to represent the following class:
