United States District Court, E.D. New York
PRELIMINARY APPROVAL ORDER
MARILYN DOLAN GO UNITED STATES MAGISTRATE JUDGE
The above-entitled matter came before the Court on the parties' Joint Motion for Preliminary Approval of the Class Settlement Agreement (ct. doc. 30) and a hearing on the motion held on July 23, 2015. The parties then filed additional documents, including a revised Settlement Agreement and Class Notice (ct. docs. 32-1, 32-2), which at the Court's direction, revised earlier filings (ct. docs. 31-1, 31-2). After consideration of the submissions and prior proceedings herein, including settlement conferences held before the undersigned, this Court grants the motion based on the following findings and conclusions of law.
I. Provisional Certification of the Proposed Rule 23 Settlement Class
A. The Court provisionally certifies the following class under Fed.R.Civ.P. 23(e), for settlement purposes ("Settlement Class") of those individuals who meet the following definition:
(1) All consumers to whom Defendants mailed a written communication in connection with an attempt to collect a debt, which included a statement that a "$3.00 convenience fee will be added for credit card payments, " regardless of whether such fee was paid or not, during a period beginning May 19, 2013, and ending June 9, 2014 ("Class #1"); and
(2) All consumers to whom Defendants mailed a written communication in connection with an attempt to collect a debt, which included a statement that a "$3.00 convenience fee will be added for credit card payments, " and who paid such a fee, during a period beginning May 19, 2011, and ending June 9, 2014 ("Class #2").
B. The Court finds for purposes of the motion that Plaintiffs meet all of the requirements for class certification under Fed.R.Civ.P. 23(a) and (b)(3) as follows.
C. Plaintiffs satisfy Fed.R.Civ.P. 23(a)(1) because there are approximately 66, 891 Class Members in Class #1 and 10, 246 Class Members in Class #2. Therefore, joinder is impracticable. See Consol. Rail. Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).
D. Plaintiffs satisfy Fed.R.Civ.P. 23(a)(2), the commonality requirement, because Plaintiffs and the Class Members share common issues of fact and law, including whether the boilerplate collection letters sent to them were false, misleading and deceptive debt collection practices which violated the Fair Debt Collection Practices Act ("FDCPA").
E. Plaintiffs satisfy Fed.R.Civ.P. 23(a)(3), because plaintiff's claims arise from the same factual and legal circumstances that form the bases of the class members' claims. See Prasker v. Asis Five Eight LLC, 2010 WL 476009, at *2 (S.D.N.Y. Jan. 6, 2010).
F. Plaintiffs satisfy Fed.R.Civ.P. 23(a)(4) because plaintiffs' interests are not antagonistic or at odds with class members. See Diaz v. Eastern Locating Servs., Inc., 2010 WL 2945556, at *2 (S.D.N.Y. July 22, 2010); Prasker, 2010 WL 476009, at *2. Plaintiffs Jennifer Babcock and Linda Campbell-Hicks are therefore appointed as Settlement Class Representatives.
G. Plaintiffs also satisfy Rule 23(b)(3). Common factual allegations that Defendants sent Class Members boilerplate letters containing identical language and a common legal theory predominate over any factual or legal variations among class members. See Diaz, 2010 WL 2945556, at *2; Prakser, 2010 WL 476009, at *2. Class adjudication of this case is superior to individual adjudication because it will conserve judicial resources and is more efficient for class members, particularly those who lack the resources to bring their claims individually. See Diaz, 2010 WL 2945556, at *2.
II. Preliminary Approval of Settlement
A. Based upon the Court's review of the parties' Joint Motion for Preliminary Approval, the Declarations of Andrew T. Thomasson, Abraham Kleinman, Brian L. Bromberg and Joseph Maruo, and all other papers submitted in connection with Plaintiff's Motion for Preliminary Approval, the Court grants preliminary approval of the ...