Fry v. Hayt, Hayt & Landau

198 F.R.D. 461, 2000 U.S. Dist. LEXIS 18895, 2000 WL 1887518
CourtDistrict Court, E.D. Pennsylvania
DecidedDecember 22, 2000
DocketNo. 00-114
StatusPublished
Cited by34 cases

This text of 198 F.R.D. 461 (Fry v. Hayt, Hayt & Landau) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461, 2000 U.S. Dist. LEXIS 18895, 2000 WL 1887518 (E.D. Pa. 2000).

Opinion

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Plaintiff Robert F. Fry, Jr., on behalf of himself and others similarly situated, has brought this action against the defendant, Hayt, Hayt & Landau, seeking damages stemming from a collection letter sent by defendant to plaintiff and others that allegedly violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), the Pennsylvania Unfair Trade Practices and Consumer Law, 73 P.S. § 201-1 et seq. (“CPL”), the Pennsylvania Debt Collection Trade Practices Regulations adopted under the CPL (“Regulations”), and the unfair and deceptive acts and practices of other states. Having reached a settlement agreement, the plaintiff and defendant have sought this court’s conditional certification of the proposed class action and, preliminary approval of the settlement, as well as approval of the proposed notice to the putative class members. Following a hearing on this matter and upon consideration of the parties’ briefs and relevant authorities, the court finds that the proposed class meets the requirements of Rule 23 that the settlement is fair, adequate, and reasonable, albeit barely, and that the notice comports with the strictures of due process. Therefore, the court will conditionally certify the proposed class, will preliminarily approve the settlement, and will also approve with slight revisions the proposed form of notice to be sent to the putative class.

I. BACKGROUND

On January 11,1999, Hayt, Hayt, and Landau (“HHL”), a law firm based in New York State, sent plaintiff Fry a letter in an attempt to collect an alleged consumer debt of $9,511.23 which he owed to Chrysler Financial. In his complaint plaintiff asserted that this letter violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), the Pennsylvania Unfair Trade Practices and Consumer Law, 73 P.S. § 201-1 et seq. (“CPL”), the Pennsylvania Debt Collection Trade Practices Regulations adopted under the CPL (“Regulations”), and the unfair and deceptive acts and practices of other states.

Specifically, the plaintiff claims the letter violated the FDCPA as to the plaintiff and the class in that it: 1) falsely represented or implied that the letter came from an attorney when it fact it was signed by Shawn Fox, an employee, not an attorney, of HHL; 2) failed to inform effectively, in the initial communication or five days later, the information required by 15 U.S.C. § 1692k; and 3) employed threatening and confusing language which contradicted, overshadowed, and obscured the validation language required by section 1692g(a).1

[466]*466Apart from these class action claims, the plaintiff also alleges that the defendant violated the FDCPA as to himself by threatening to take legal action against him which it could not take or which it did not intend to take. The plaintiff in his complaint also alleges that these specific violations of the FDCPA also violated the Pennsylvania Unfair Trade Practices and Consumer Law, 73 P.S. § 201 — 1 et seq. (“CPL”) and the unfair and deceptive acts and practices statutes (“UDAP”) of other states.

After the complaint and answer were filed and months of discovery ensued, the parties began settlement negotiations. On July 31, 2000, the parties filed a joint motion for conditional approval of the proposed class, preliminary approval of the proposed settlement, and approval of the form of notice to class members (doc. no. 19). On August 18, 2000, the court held a hearing on the motion at which the court heard expert testimony from Professor Manuel H. Newburger and oral argument from the parties’ counsel. After considering the parties’ submissions, the court finds that the proposed class meets the requirements of Rule 23, that the settlement agreement is fair and reasonable, and that the form of notice complies with due process.

II. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 23(c)(1), “the court can make a conditional determination of whether an action should be maintained as a class action, subject to final approval at a later date.”2 Collier v. Montgomery County Housing Authority, 192 F.R.D. 176, 181 (E.D.Pa.2000) (citing Lusardi v. Xerox Corp., 747 F.2d 174, 177 (3d Cir.1984).) In order for the court to grant conditional approval of a class action, a plaintiff must establish the four prerequisites of numerosity, commonality, typicality, and adequacy of representation. See Fed.R.Civ.P. 23(a)3; Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Georgine v. Amchem Products, Inc., 83 F.3d 610, 624 (3d Cir.1996) (citations omitted). Furthermore, the plaintiffs cause of action must satisfy at least one of the three subsections of Rule 23(b). See Fed.R.Civ.P. 23(b); Windsor, 521 U.S. at 614, 117 S.Ct. 2231. For purposes of settlement only, the parties contend that section 23(b)(2) and 23(b)(3)4 is applicable to [467]*467this lawsuit. Plaintiff claims that section 23(b)(2) applies because HHL allegedly acted on grounds generally applicable to the entire class. He also claims that section 23(b)(3) applies because common issues of law and fact predominate in this case and a class action is an efficient method for resolving this controversy.5

A. Requirements of Rule 23(a)

1. Numerosity

Plaintiff contends that the putative class members were composed of “[a]ll persons in the United States who, for the period from January 7, 1994 through the date of [fjinal [judgment in this action, were sent a [l]etter by HHL.” See Settlement Agreement U 2.2. At the August 18, 2000 hearing on this matter, the parties estimated that the class size was between 45,000 and 52,700 individuals. See 8/18/00 Tr. at 8.

To meet the superiority requirement, the plaintiff does not need to know the exact number of class members. See Collier, 192 F.R.D. at 182 (E.D.Pa.2000) (citations omitted); In re Cephalon Securities Litigation, No. CIV.A. 96-0633, 1998 WL 470160, at *2 (E.D.Pa. Aug.12, 1998); Hurt v. Philadelphia Housing Authority, 151 F.R.D. 555, 558 (E.D.Pa.1993). Instead, the class size only need be large enough that it makes joinder impracticable. See Fed.R.Civ.P. 23(a)(1).

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Cite This Page — Counsel Stack

Bluebook (online)
198 F.R.D. 461, 2000 U.S. Dist. LEXIS 18895, 2000 WL 1887518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fry-v-hayt-hayt-landau-paed-2000.