Bourlas v. Davis Law Associates

237 F.R.D. 345, 2006 U.S. Dist. LEXIS 61864, 2006 WL 2513021
CourtDistrict Court, E.D. New York
DecidedAugust 30, 2006
DocketNo. CV 05-4548 VVP
StatusPublished
Cited by7 cases

This text of 237 F.R.D. 345 (Bourlas v. Davis Law Associates) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bourlas v. Davis Law Associates, 237 F.R.D. 345, 2006 U.S. Dist. LEXIS 61864, 2006 WL 2513021 (E.D.N.Y. 2006).

Opinion

MEMORANDUM AND ORDER

POHORELSKY, United States Magistrate Judge.

The plaintiff and defendants (hereafter “the parties”) have filed a joint motion seek[349]*349ing preliminary approval of a proposed class action settlement in this case concerning alleged violations of the Fair Debt Collection Practices Act (“FDCPA”).1 Specifically, the parties seek an order (1) certifying the proposed class for settlement purposes (hereafter “the settlement class”), (2) preliminarily approving the proposed terms of the settlement agreement, (3) directing and sending notice to the certified settlement class, and (4) setting dates for opt-outs, objections, and a Rule 23 fairness hearing. For the reasons set forth below, the motion is GRANTED.

BACKGROUND

The unlawful conduct at issue involves the alleged practice by defendant law firm, Davis Law Associates, of sending out collection letters which do not conform with FDCPA requirements, see generally 15 U.S.C § 1692 et seq. The complaint states two claims under the FDCPA, one under section 1692e and the other under section 1692g. The section 1692e claim alleges that Davis Law, in sending out the collection letters seeking the repayment of nonexistent debts, failed to conduct “adequate attorney review” as required under the FDCPA. (Compl.HH 44-49.)2 The section 1692g claim attacks the sufficiency of the collection letter itself, contending that Davis Law had failed to include a proper “validation notice” in its collection letters, which, if properly drafted, would have informed recipients that disputes as to the validity of the debt would have to be “in writing.” (Compl.HH 38-43.)3

DISCUSSION

I. Court Approval of Class Action Settlements — Generally

Rule 23(e) governs the settlement of class actions. The Rule, as amended in 2003, requires that “the court must approve any settlement, voluntary dismissal, or compromise of the claims ... of a certified class.” Fed. R.Civ.P. 23(e) (emphasis added). The court-approval requirement, as the advisory committee explained, is intended “to strengthen the process of reviewing proposed class-action settlements.” Fed.R.Civ.P. 23(e) advisory committee note 2003 amendments. The Committee noted in particular that while “[sjettlement may be a desirable means of resolving a class action ... court review and approval are essential to assure adequate representation of class members who have not participated in shaping the settlement.” Id.

II. Certification of Settlement Class— Rule 23(a) and (b)

Before reaching the merits of the proposed settlement, however, the court must first ensure that the settlement class, as defined by the parties, is certifiable under the standards of Rule 23(a) and (b). As the Second Circuit recently stated, “Before certification is proper for any purpose- — settlement, litigation, or otherwise — a court must ensure that the requirements of Rule 23(a) and (b) have been met.” Denney v. Deutsche Bank AG, 443 F.3d 253, 270 (2d Cir.2006) (concluding in part that “the District Court conducted a Rule 23(a) and (b) analysis that [350]*350was properly independent of its Rule 23(e) fairness review.”). See also Reade-Alvarez v. Eltman, Eltman, & Cooper, P.C., 237 F.R.D. 26, 31 (E.D.N.Y.2006) (“Certification of a class for settlement purposes only is permissible and appropriate, provided [the] standards [under Rule 23(a) and (b)] are met.”) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 619-21, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). The Denney court further cautioned that “[t]hese requirements should not be watered down by virtue of the fact that the settlement is fair or equitable.” Denney, 443 F.3d at 270. One must keep in mind, however, that courts in this circuit employ a “ ‘liberal rather than restrictive construction’ of Rule 23, ‘adopting] a standard of flexibility’ in deciding whether to grant certification.” Reade-Alvarez, 237 F.R.D. at 31 (quoting Marisol A. v. Giuliani 126 F.3d 372, 377 (2d Cir.1997)) (additional citation omitted).

The party seeking class certification bears the burden of establishing the existence of all four Rule 23(a) requirements, often referred to as the criteria of “numerosity, commonality, typicality, and adequacy.” See Fed.R.Civ.P. 23(a); Amchem, 521 U.S. at 613, 117 S.Ct. 2231. “In addition to satisfying Rule 23(a)’s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3).” Amchem, 521 U.S. at 614, 117 S.Ct. 2231.

The named plaintiff seeks to assert her FDCPA claims, which rest upon the legality of form collection letters allegedly sent by the defendants, on an individual and class-wide basis. The class members consist generally of those individuals who received a collection letter substantially similar to that received by the named plaintiff, and specifically of

All persons who, according to [the defendants’] records: (a) have mailing addresses within New York State; and (b) between September 23, 2004 and September 22, 2005; (c) were sent a collection letter bearing Davis Law Associates’ letterhead in a form materially identical or substantially similar to the letter sent to [the named plaintiff, Ms. Bourlas], attached as Exhibit “A” to the Complaint; and (d) which was not returned by the postal service as undelivered.

(Joint Settlement Agreement and Release If 6, attached to Joint Mot. as Ex. A.) The court addresses the propriety of certification with respect to these allegations under Rule 23(a) and (b) in turn.

A. Rule 23(a) Factors

The Supreme Court, in Amchem, set forth concisely the parameters of the Rule 23(a)4 inquiry:

Rule 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a “class [so large] that joinder of all members is impracticable”); (2) commonality (“questions of law or fact common to the class”); (3) typicality (named parties’ claims or defenses “are typical ... of the class”); and (4) adequacy of representation (representatives “will fairly and adequately protect the interests of the class”).

521 U.S. at 613, 117 S.Ct. 2231.

1. Rule 23(a)(1) — Numerosity

Turning first to the numerosity requirement, the court focuses on whether the “num[ber] of injured persons makes joinder of all class members ‘impracticable.’ ” Edge v. C. Tech Collections, Inc., 203 F.R.D. 85, 89 (E.D.N.Y.2001) (citing Robidoux v. Celani

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Bluebook (online)
237 F.R.D. 345, 2006 U.S. Dist. LEXIS 61864, 2006 WL 2513021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bourlas-v-davis-law-associates-nyed-2006.