ANTHONY FELIX, an individual; on behalf of himself and all others similarly situated, Plaintiffs,
NORTHSTAR LOCATION SERVICES, LLC, a New York Limited Liability Company; and JOHN AND JANE DOES NUMBERS 1 THROUGH 25, Defendants. DONNIE JO HARB, an individual; on behalf of herself and all others similarly situated, Plaintiffs,
NORTHSTAR LOCATION SERVICES, LLC, a New York Limited Liability Company; and JOHN AND JANE DOES NUMBERS 1 THROUGH 25, Defendants.
DECISION AND ORDER/ORDER TO SHOW CAUSE
JEREMIAH J. McCARTHY, Magistrate Judge.
Before me is plaintiffs' "Consent Motion for an Order Conditionally Certifying Class and Granting Preliminary Approval of Class Action Settlement and Injunctive Relief" [42, 42-1]. The parties have consented to jurisdiction by a United States Magistrate Judge ( in this action,  in 11-CV-253).
"[T]he settlement only' class has become a stock device in modern class action litigation." In re American International Group, Inc. Securities Litigation , 689 F.3d 229, 238 (2d Cir. 2012). "[A] district court confronted with a request for settlement-only class certification need not inquire whether the case, if tried, would present intractable management problems, for the proposal is that there be no trial.... At the same time, however... other specifications of Rule 23 - those designed to protect absentees by blocking unwarranted or overbroad class definitions - demand undiluted, even heightened, attention." Id. at 239.
This Consent Motion presents a perfect example of why that is so. While I conclude that the Motion should be denied for several independent reasons, I will examine each of them separately, for the benefit of the reviewing court in the event of an appeal.
By Text Order dated June 15, 2011 , I granted the parties' motions to consolidate these two actions under Case Number 11-CV-166. Plaintiff Anthony Felix, a citizen of California, seeks relief under the Fair Debt Collection Practices Act, 15 U.S.C. §§1692, et seq. ("FDCPA") and the California Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§1788, et seq. ("RFDCPA") on his own behalf and on behalf of a proposed class of similarly situated individuals, against defendant Northstar Location Services, LLC ("Northstar") and a number of Joe Doe defendants. First Amended Complaint . He alleges that he received several telephonic voice messages from Northstar which failed to disclose that the communication was from a debt collector, the purpose or nature of the communication, or the identification of Northstar as the caller. Id., ¶¶40-42. In addition to class certification, he seeks "maximum statutory damages" for class actions under the FDCPA and RFDCPA, "declaratory relief adjudicating that Northstar's telephone messages violate the FDCPA... [and] RFDCPA", "[a]ttorney's fees, litigations expenses, and costs", and "such other and further relief as may be just and proper". Id., ¶81.
Plaintiff Donnie Jo Harb, a citizen of North Carolina and represented by the same attorneys as plaintiff Felix (William F. Horn and Robert L. Arleo) filed a separate Complaint (11-cv-253 ) against Northstar and John Doe defendants, alleging that she likewise received telephonic voice messages from Northstar which failed to disclose that the communications were from a debt collector, the purpose or nature of the communications, or the identification of Northstar as the caller (id, ¶¶27-36). Additionally she alleges that when she returned a call placed by Northstar that the individual she spoke to did not identify himself as a debt collector or inform her that the conversation might be surreptitiously monitored or recorded at the outset of the call (id., ¶¶63-69), and that Northstar placed a call to her employer, in which it failed to inform plaintiff's employer that the conversation might be surreptitiously monitored or recorded. Id . ¶¶77-83.
She seeks to certify a class of "all persons in the State of North Carolina... with whom [Northstar] engaged in a conversation via telephone, ... wherein [Northstar] failed to disclose at the outset of the conversation that the call may be monitored or recorded by an unannounced third person(s), ... made in connection with Defendant's attempt to collect a debt, ... which conduct violated the FDCPA... during a period beginning one year prior to the filing of this initial action and ending 21 days after service of this complaint." Id., ¶98. She further seeks FDCPA remedies identical to those sought by plaintiff Felix, except she does not request declaratory relief (id., ¶111).
Accompanying the pending motion is an executed Stipulation of Settlement [42-2]. Although Northstar denies "each and every claim and allegation of wrongdoing or conduct that violates the FDCPA or the RFDCPA", it deems it "desirable and prudent that the Consolidated Action... be fully and finally resolved and settled in the manner and upon the terms set forth in this Stipulation". Stipulation of Settlement [42-2], pp. 3, 4.
The Consent Motion asks me to certify the Settlement Class (defined in the Stipulation of Settlement) pursuant to Rule 23(b)(1)(B) and 23(b)(2), preliminarily approve the Stipulation of Settlement, direct notice to the class, set dates for objections to the proposed settlement, and schedule a final fairness hearing (, pp. 1-2).
A. General Considerations
"Rule 23 does not set forth a mere pleading standard." Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___ , 131 S.Ct. 2541, 2551 (2011). "The party seeking class certification must affirmatively demonstrate compliance with the Rule, and a district court may only certify a class if it is satisfied, after a rigorous analysis, that the requirements of Rule 23 are met." American International Group , 689 F.3d at 237-38.
"Before approving a class settlement agreement, a district court must first determine whether the requirements for class certification in Rule 23(a) and (b) have been satisfied.... Thus, the court must assess whether the proposed class satisfies Rule 23(a)'s four threshold requirements: (1) numerosity (the class is so numerous that joinder of all members is impracticable'), (2) commonality (there are questions of law or fact common to the class'), (3) typicality (the claims or defenses of the representative parties are typical of the claims or defenses of the class'), and (4) adequacy of representation (the representative parties will fairly and adequately protect the interests of the class')." Id. at 238.
"To be certified, a putative class must first meet all four prerequisites set forth in Rule 23(a).... Not only must each of the requirements set forth in Rule 23(a) be met, but certification of the class must also be deemed appropriate under one of the three subdivisions of Rule 23(b)." Brown v. Kelly , 609 F.3d 467, 475-76 (2d Cir. 2010).
B. Is There an Ascertainable Class?
"Although not explicit in Rule 23(a) or (b), courts have universally recognized that the first essential ingredient to class treatment is the ascertainability of the class.... Thus, the named plaintiff must define the proposed class in a manner that adequately identifies its members." Grimes v. Rave Motion Pictures Birmingham, L.L.C., 264 F.R.D. 659, 663-64 (N.D.Ala. 2010). See also In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation , 209 F.R.D. 323, 336 (S.D.N.Y. 2002) ("while Rule 23(a) does not expressly require that a class be definite in order to be certified, a requirement that there be an identifiable class has been implied by the courts"); In re Initial Public Offerings Securities Litigation , 471 F.3d 24, 30 (2d Cir. 2006) (discussing "[t]he implied requirement of ascertainability" of the class); 1 Newberg on Class Actions, §§3.1 et seq. (5th ed.)
"The implied requirement of ascertainability obligates plaintiffs to demonstrate that the class they seek to certify is readily identifiable, such that the court can determine who is in the class and, thus, bound by the ruling....When a proposed class definition links class membership with the merits of the class members' claims, the class is not ascertainable." Eng-Hatcher v. Sprint Nextel Corp. , 2009 WL 7311383, *7 (S.D.N.Y. 2009); Barrus v. Dick's Sporting Goods, Inc. , 732 F.Supp.2d 243, 250 (W.D.N.Y. 2010) (Siragusa, J.) ("Plaintiffs' proposed class definition is defective because it is not based upon objective criteria and, instead, would require the Court to make a merits determination for each potential class member just to determine class membership"); 5 Moore's Federal Practice, §23.21[c] (Matthew Bender 3d ed.) ("A class definition is inadequate if a court must make a determination of the merits of the individual claims to determine whether a particular person is a member of the class").
The Stipulation of Settlement defines the "Settlement Class" as "the FDCPA and RFDCPA Class collectively". [42-2], ¶1.17. The "FDCPA Settlement Class" is defined as:
"all persons with addresses in the United States of America who received a voice message left by Defendant on a telephone answering device, or who engaged in a telephone communication with Defendant, wherein the Defendant did not identify itself by its company name as the caller, state the purpose or nature of the communication or disclose that the communication was from a debt collector, or where the Defendant did not disclose at the outset of a communication that the call may be monitored or recorded, or where the Defendant made a false representation or used a deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer, and where such communication occurred between February 28, 2010, through and including the date of order granting preliminary certification of the Settlement Class." Id., ¶1.6 (emphasis added).
The "RFDCPA Settlement Class" is defined as:
"all persons with addresses in the State of California who received a voice message left by Defendant on a telephone answering device, or who engaged in a telephone communication with Defendant, wherein the Defendant did not identify itself by its company name as the caller, state the purpose or nature of the communication or disclose that the communication was from a debt collector, or did not disclose at the outset of a communication that the call may be monitored or recorded, or where the Defendant made a false representation or used a deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer, and where such ...