The opinion of the court was delivered by: SIFTON
Plaintiff Samuel Weber brings this action pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. Plaintiff moves to certify this case as a class action. Defendants Simon & Schuster, Inc. and Viacom, Inc. (together, the "S&S defendants") as well as defendant North Shore Agency ("NSA") and its principal officer and equity owner, defendant Jerome Goodman, oppose class certification.
For the reasons stated below, plaintiff's motion for class certification is denied.
The following facts are drawn from the amended complaint and are taken as true for purposes of this motion. Plaintiff received a letter dated December 18, 1996, regarding an alleged overdue bill for books purchased from the Center for Applied Research, an imprint of Simon & Schuster. The December 18, 1996 letter contained the following language and format on the front of the notice: EARLY WARNING NOTICE
Our client, CENTER FOR APPLIED RES, requires that we send you this early warning notice to verify that payment has not yet been received for the items listed below:
HW REACH ADD/ADHD CHLDRN $ 34.55
PARENTS CMPLT SPEC ED GD $ 24.66
Take advantage of this early warning notice by mailing a check in the envelope provided. Give this early warning notice your immediate attention. Full payment is expected. This is an attempt to collect a debt and any information obtained will be used for that purpose.
NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION
The back of the notice appears as follows:
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. if you notify this office in writing within 30 days from receiving this notice, this office will: obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor. This is an attempt to collect a debt and any information obtained will be used for that purpose.
NOTE: "Parents may not have any legal obligations for their children's purchases. If you have any questions about you obligation to pay this bill, we suggest you seek legal advice."
OFFICE HOURS: 9 A.M. - 4:30 P.M. MONDAY - FRIDAY EST
PLEASE FOLLOW THE PROCEDURES BELOW
1. MAKE OUT CHECK OR MONEY ORDER FOR FULL AMOUNT SHOWN.
2. ENCLOSE YOUR PAYMENT AND BOTTOM SECTION OF LETTER IN RETURN ENVELOPE.
3. IMPORTANT: PLEASE PUT ACCOUNT NUMBER ON ALL CHECKS AND CORRESPONDENCE.
The letter was printed on North Shore Agency letterhead and appeared to have been sent by the North Shore Agency. Thousands of similar letters were sent to other S&S customers.
Despite the letter's appearance, plaintiff alleges that the North Shore Agency did not prepare or mail the December 18, 1996 letter.
Rather plaintiff believes that the letter was sent by Simon & Schuster. While the North Shore Agency allegedly authorized the S&S defendants' use of its name and letterhead, the North Shore Agency was, according to plaintiff, not meaningfully involved in collecting debts owed to the Sprint defendants.
In count one of the second amended complaint, plaintiff alleges that the S&S defendants are liable under 15 U.S.C. § 1692e and that NSA and Jerome Goodman are liable under 15 U.S.C. § 1692j because the December 18, 1996 letter conveys the false impression that it was sent by a collection agency that was meaningfully involved in collecting the debt. Plaintiff seeks the maximum amount of statutory damages allowed under 15 U.S.C. § 1692k, to be distributed on a cy pres basis if appropriate, and attorneys fees and litigation costs.
In count two of the second amended complaint, plaintiff asserts that defendants violated section 349 of the New York General Business Law. Plaintiff alleges that the December 18, 1996 letter conveys the false impression that it was sent by a collection agency that was meaningfully involved in collecting the debt. Plaintiff seeks a declaration that defendants' collection letters are unlawful, an injunction prohibiting defendants from sending or causing or permitting to be sent to ...