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Tag: Class Certification

Class Cert Denied Based on Defense to Rep’s Claim

Link: Heisler v. CONVERGENT HEALTHCARE RECOVERIES, INC. (E.D. Wisc., Sept. 27, 2018).

In an FDCPA lawsuit brought by Edelman Combs Latturner & Goodwin LLC, a district court found that because a class representative was arguably subject to a defense of judicial estoppel—and some unnamed class members were not—that he’s not an adequate class representative under Rule 23.


Again, CHRI argues that Heisler’s cause of action should be barred by judicial estoppel based on actions taken during the course of Heisler’s bankruptcy proceedings. Heisler disputes that judicial estoppel applies in his case and raises both factual and legal arguments in support of his position. This judicial estoppel argument is both legally and factually specific to Heisler and his bankruptcy proceedings. Thus, I find that CHRI has presented at least an “arguable” defense to Heisler’s claim and therefore conclude that Heisler is an inadequate representative of the class. See Randall v. Rolls-Royce Corp., 637 F.3d 818, 824 (7th Cir. 2011) (“[N]amed plaintiffs who are subject to a defense that would not defeat unnamed class members are not adequate class representatives.”); see also Boyd v. Meriter Health Servs. Employee Ret. Plan, No. 10-CV-426-WMC, 2012 WL 12995302, at *11 (W.D. Wis. Feb. 17, 2012), aff’d sub nom. Johnson v. Meriter Health Servs. Employee Ret. Plan, 702 F.3d 364 (7th Cir. 2012) (finding the court was “compelled to conclude” the named plaintiff was an inadequate class representative when defendants alleged judicial estoppel due to plaintiff’s failure to disclose cause of action during banrkutpcy proceedings).

Potential For MDL Not Reason to Delay Certifying FDCPA Class

Link: Rhodes v. ENHANCED RECOVERY COMPANY, LLC, Dist. Court, SD Indiana 2018 (Oct. 19, 2018)

A class was certified in an FDCPA case brought by Philipps and Philipps, Ltd. despite Defendant’s assertions that a heightened ascertainability standard should apply and that a potential consolidation into MDL on a bona fide error defense issue should warrant a stay of that decision.

“Defendant has indicated in its response in opposition to Plaintiff’s class certification motion that it intends to apply to the Multi District Litigation Panel to have this case and four other unidentified cases joined for purposes of conducting discovery regarding a potential bona fide error defense and argues without further explanation that “it would be more appropriate to consider the issue of class certification after Defendant makes its application to the MDL Panel.” Def.’s Resp. at 2. We are not persuaded that Defendant’s potential application to the MDL Panel is an adequate basis on which to delay a ruling on Plaintiff’s motion for class certification.”

The opinion was issued by judge Sarah Barker.

FDCPA G-Notice Class is Certified; Judgment on Pleadings Denied

Link 1: Taylor v. ALLTRAN FINANCIAL, LP, Case No. 18-cv-00306-JMS-MJD (S.D. Ind., Sept. 17, 2018).

Link 2: Taylor v. ALLTRAN FINANCIAL, LP, Case No. 18-cv-00306-JMS-MJD (S.D. Ind., Sept. 19, 2018).

Plaintiffs, represented by Philipps and Philipps Ltd., brought an action against Alltran and LVNV Funding, LLC, alleging that their debt collection letters were unclear as to whether Alltran was collecting on behalf of Defendant LVNV or nonparty Springleaf Financial Services. This confusion allegedly violated 15 U.S.C. § 1692g(a), which requires, among other things, that a debt collector “send the consumer a written notice containing . . . the name of the creditor to whom the debt is owed.”

The letter listed as the “Original Creditor” nonparty Springleaf Financial Services Inc.,  from whom Mr. Taylor had previously borrowed money. Next, the letter stated that the “Current Creditor” was Defendant LVNV Funding, LLC (“LVNV”). Finally, below this information, the letter explained that “Alltran Financial, LP has been contracted to lead and represent in the collection of the judgment awarded on your Springleaf Financial Services Inc. account.”

In the first opinion on Sept. 17, judge Jane Magnus-Stinson analyzed whether the action meets the the requirements of Rule 23. The court rejected defendants arguments regarding the notion some of the debts may have been non-consumer in nature, and certified the following class:

All persons similarly situated in the State of Indiana from whom Defendants attempted to collect a defaulted consumer debt allegedly owed for a Springleaf Financial Services account, via the same form collection letter that Defendants sent to Plaintiff, from February 1, 2017 to the present.

In the second opinion issued on Sept. 19, the court rejected defendants’ motion for judgment on the pleadings. In so holding, the court noted that:

Several problems are manifest. First, the letter says that Alltran has “been contracted to lead and represent in the collection of the judgment.” Contracted by whom?, an unsophisticated (or perhaps even a sophisticated) consumer might ask. The ostensible answer comes at the end of the sentence: “the judgment awarded on your Springleaf Financial Services Inc. account.” [Filing No. 1-3 at 1.] Of course, based upon the facts of this lawsuit it is now clear that LVNV acquired the debt at some point from Springleaf, but for all intents and purposes the letter makes it sound like Springleaf is the one who contracted Alltran and that Mr. Taylor still has a “Springleaf Financial Services Inc. account” on which Alltran is attempting to collect.

This not-so-subtle wrinkle sets this case far apart from Zuniga v. Asset Recovery Solutions, 2018 WL 1519162 (N.D. Ill. 2018), the case heavily relied upon by Defendants.

Defendants are represented by Ballard Spahr LLP and Kroger Gardis & Regas, LLP.

TCPA Class Against Heska Corp. is Certified

link: Fauley v. Heska Corpoartion, 2015-cv-2171 (N.D. Ill, Aug. 24, 2018)

Shaun Fauley, through counsel Anderson + Wanca, filed a motion to certify a class alleging that defendant Heska contacted over 10,850 customers via fax in violation of the Telephone Consumer Protection Act. After rehashing issues with Heska contacting class members in a “reconfirmation” effort to retroactively obtain customers’ consent, the court certified the following class:

All persons or entities who were successfully sent one or more facsimiles regarding Heska Corporation’s goods or services from March 12, 2011, through July 21, 2014, that either (1) contain no “opt-out notice” explaining how to stop future faxes or (2) contain an opt-out notice stating, “To unsubscribe from Heska’s promotional faxes, please call 800-464-3752, ext. 4565 or fax (970) 619-3008, and indicate your clinic name and fax number.”

The Court applied the standard used by the D.C. Circuit in the case of Bais Yaakov, agreeing that the TCPA does not impost an opt-out requirement on solicited faxes. The court also noted Heska timely obtained an FCC waiver of the opt-out rule for solicited fax advertisements.