JAMES S. MOODY, Jr., District Judge.
THIS CAUSE comes before the Court upon Plaintiff's Motion for Class Certification (Doc. 27), which Defendant does not oppose, and the parties' Joint Motion for Preliminary Approval of Class Settlement (Doc. 41). The Court, having reviewed the motions, and being otherwise fully advised in the premises, concludes that the motions should be granted.
This case arises under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692p, and the Florida Consumer Collection Practices Act ("FCCPA"), Fla. Stat. §§ 559.55-.785. (Doc. 1). Plaintiff alleged that Defendant violated the FDCPA and FCCPA by (1) using standardized form letters to collect consumer debts that required consumers to dispute the validity of the debts in writing, (2) threatening legal action, such as the filing of claims of lien within a specified time period, which it did not intend to act upon, (3) including conflicting amounts due on the standardized form letters, and (4) attempting to collect unauthorized processing fees. (Doc. 1).
Based on these violations of the FDCPA and FCCPA, Plaintiff filed a four-count class action complaint against Defendant on March 17, 2015.
I. CLASS CERTIFICATION
A. Standard of Review
A district court is vested with broad discretion in determining whether to certify a class. Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992). But the party seeking to maintain a class action must demonstrate that the putative class meets the requirements of Federal Rule of Civil Procedure 23. Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013). First, the party must demonstrate the prerequisites articulated in Rule 23(a), which include establishing the following:
Generally, these requirements are referred to as "numerosity, commonality, typicality, and adequacy of representation." Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1188 (11th Cir. 2003) (internal quotation marks omitted).
Once the party seeking class certification meets all of Rule 23(a)'s requirements, the party must then satisfy one of Rule 23(b)'s requirements. Id. Here, Plaintiff seeks certification pursuant to Rule 23(b)(3), which provides for class certification if
In determining whether the requirements of Rule 23 have been satisfied, the Court may take into account a proposed settlement. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 619-20 (1997).
1. Whether Plaintiff has satisfied the threshold requirements.
Before the Court considers the Rule 23 requirements, Plaintiff must first meet a threshold requirement not expressly articulated, but implicit, in the Rule 23 analysis: that is, the plaintiff must demonstrate that the proposed class is "adequately defined and clearly ascertainable." Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App'x 782, 787 (11th Cir. 2014) (quoting Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)). "An identifiable class exists if its members can be ascertained by reference to objective criteria." Bussey, 562 F. App'x at 787 (internal quotation marks omitted). The analysis of the objective criteria also should be administratively feasible. Id. "Administrative feasibility means that identifying class members is a manageable process that does not require much, if any, individual inquiry." Id. (internal quotation marks omitted).
Plaintiff has satisfied the threshold requirement of demonstrating a class that is "adequately defined and clearly ascertainable." Id. Specifically, Plaintiff seeks certification of the following class:
(Doc. 41, Ex. 1 at 4-5). Such class is readily identifiable and passes muster under an administrative feasibility analysis. Plaintiff has therefore surmounted the first hurdle in demonstrating that class certification is appropriate.
2. Whether Plaintiff has satisfied the requirements of Rule 23(a).
Numerosity requires that the class be "so numerous that joinder of all the members is impractical." Fed. R. Civ. P. 23(a)(1). Although there exists no precise numerical threshold to determine whether numerosity has been satisfied, generally, a class of less than twenty-one members is inadequate and a class of greater that forty members is adequate. See Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009) (citing Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986)). In Defendant's responses to Plaintiff's interrogatories, Defendant responded that it sent between 250 and 1,000 notices similar to the notice received by Plaintiff in the past two years. (Doc. 27, Ex. B). And, according to the Settlement Agreement, there are approximately 219 class members. (Doc. 41, Ex. 1 at 7). Joinder of 219 class members would be impractical. Accordingly, the requirement of numerosity has been satisfied.
Commonality demands that there be "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). The commonality requirement is a "relatively light burden" and "`does not require that all the questions of law and fact raised by the dispute be common'. . . or that the common questions of law or fact `predominate' over individualized issues." Vega, 564 F.3d at 1268 (quoting Cox, 784 F.2d at 1557). Rather, commonality requires that there be at least one issue whose resolution will affect all or a significant number of the putative class members. Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009). Commonality may be demonstrated by proof that the defendant operated under a general policy that manifested itself in the alleged illegal practices affecting the class members in the same general fashion. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2553 (2009).
Common issues of law and fact exist in the present case, including (1) whether Defendant violated the FDCPA by sending notices similar to that received by Plaintiff (Doc. 41, Ex. 1-A) requiring consumers to contest their debts in writing, (2) whether Defendant violated the FCCPA by sending notices similar to that received by Plaintiff (Doc. 41, Ex. 1-A) requiring consumers to contest their debts in writing, and (3) the remedies to which Plaintiff and members of the class are entitled. Because the notices at issue are standardized forms used by Defendant in attempting to collect consumer debts, these issues can likely be resolved without individualized factual or legal inquiries. The commonality requirement has been satisfied.
Typicality requires that "the claims or defense of the representative parties [be] typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). In other words, the "class representative must possess the same interest and suffer the same injury as the class members." Vega, 564 F.3d at 1275. Like commonality, typicality is not a demanding test. See In re Disposable Contact Lens Antitrust Litig., 170 F.R.D. 524, 532 (M.D. Fla. 1996).
Plaintiff's claims are typical of those of the putative class. Plaintiff received the same, or a substantially similar notice, to those received by the putative class. (Doc. 27, Ex. C). Additionally, Plaintiff's theory of relief is based upon the same legal argument as the putative class. The typicality requirement has been met.
iv. Adequacy of Representation
Adequacy of representation requires that "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). This requirement "encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action." Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323 (11th Cir. 2008) (internal quotation marks omitted).
Here, Defendant's conduct toward Plaintiff and the putative class members was identical—the sending of the notice. Thus, no inherent conflict exists. No further evidence suggests that Plaintiff has any interests antagonistic to the class he seeks to represent. Additionally, Plaintiff's counsel has provided an affidavit detailing his extensive experience in litigating class actions. (Doc. 27, Ex. D). Accordingly, Plaintiff and Plaintiff's counsel have satisfied the requirement of adequacy of representation.
3. Whether Plaintiff has satisfied the requirements of Rule 23(b).
Pursuant to Rule 23(b)(3), a class action may be maintained if
"Under Rule 23(b)(3) it is not necessary that all questions of law or fact be common, but only that some questions are common and that they predominate over the individual questions." Klay v. Humana, Inc., 382 F.3d 1241, 1254 (11th Cir. 2004), abrogated in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008) (internal quotation marks omitted). Issues requiring generalized proof should predominate over the issues requiring individualized proof. Kerr v. City of W. Palm Beach, 875 F.2d 1546, 1558 (11th Cir. 1989). In essence, the Court must determine "`whether there are common liability issues which may be resolved efficiently on a class-wide basis.'" Drossin v. Nat'l Action Fin. Servs., Inc., 255 F.R.D. 608, 616 (S.D. Fla. 2009) (quoting Brown v. SCI Funeral Servs. of Fla., 212 F.R.D. 602, 606 (S.D. Fla. 2003)).
Here, predominance is established because Defendant admits that it sent the same notice Plaintiff received to approximately 219 consumers to collect a consumer debt. (Doc. 41, Ex. A). The notices were standardized. (Doc. 27, Ex. C). Because Defendant's conduct was standardized in nature, a general determination can be made as to whether the FDCPA and FCCPA were violated. See Fuller v. Becker & Poliakoff, P.A., 197 F.R.D. 697 (M.D. Fla. 2000) (certifying a class involving 200 debt collection letters that allegedly violated the FDCPA and FCCPA). The predominance requirement has been met.
Rule 23(b)(3) sets out four specific considerations pertinent to determining whether a class action is a superior to other forms of action:
Here, given the large number of potential claims, the limited statutory damages to which each claimant would be entitled, the need for consistent litigation, and the unlikely interest each class member would have in individually controlling the litigation, a class action would be superior to other forms of action in this case. Difficulties with managing the class are likely to be nonexistent or limited. Thus, the superiority requirement has been met.
Because Plaintiff has satisfied the threshold requirement and the requirements of Rule 23(a) and (b), the Court certifies the putative class.
II. PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
A class action settlement should be approved so long as it is "fair, adequate and reasonable and is not the product of collusion between the parties." Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984) (internal quotation marks omitted). The Eleventh Circuit has identified the following factors as relevant in determining whether a class settlement's terms are fair, reasonable, and adequate:
These factors weigh in favor of approval of the proposed settlement in the present case. This is not a complex case. Plaintiff would have been likely to succeed at trial but his damages would have been limited. Under the terms of the proposed settlement, class members will receive a pro-rata share of the $6,000 settlement fund. Settlement was achieved at relatively early stage of the case, and no opposition has been raised as of yet. Considering the totality of the circumstances, the Court preliminary approves the class settlement.
Accordingly, it is therefore
1. Plaintiff's Motion for Class Certification (Doc. 27) is GRANTED.
2. The Court certifies a class pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) consisting of:
3. Joseph Iomie is appointed as class representative.
4. Brian W. Warwick, Esq. is appointed as class counsel pursuant to Federal Rule of Civil Procedure 23(g).
5. The parties' Joint Motion for Preliminary Approval of Class Settlement (Doc. 41) is GRANTED.
6. The Court GRANTS preliminary approval to the proposed class settlement (Doc. 41, Ex. 1-A), as the Court concludes that the proposed settlement is fair, reasonable, and adequate, subject to further consideration at a Final Fairness Hearing.
NOTICE TO POTENTIAL CLASS MEMBERS
7. The form of notice provided in the parties' Joint Motion for Preliminary Approval of Class Action Settlement (Doc. 41, Exs. 1-B, 1-C) is APPROVED. While the inclusion of a fair and accurate Spanish translation of the notice is not required, if the class representative decides to include such translation with the notice, he may do so without further leave of the Court.
8. Defendant or its designated agent shall arrange to have this notice (Doc. 41, Exs. 1-B, 1-C) sent to all class members within thirty (30) days of the date of this Order as set out in the Settlement Agreement (Doc. 41, Ex. 1).
9. The form of the notice (Doc. 41, Exs. 1-B, 1-C), and method set forth herein of notifying the class members of the settlement and its terms and conditions, meet the requirements of the Federal Rules of Civil Procedure and due process, constitute the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all persons and entities entitled thereto.
10. Brian W. Warwick, Esq., is authorized to represent and act on behalf of class members with respect to all acts required by the Settlement Agreement or such other acts which are reasonably necessary to consummate the spirit of the proposed Settlement Agreement.
11. All litigation, including discovery, other than further proceedings with respect to the Settlement Agreement, is STAYED until further order of this Court.
12. Any class member may opt out of the settlement by utilizing the procedures outlined in the notice (Doc. 41, Exs. 1-B, 1-C).
13. Any class member may appear and show cause why the proposed settlement as embodied in the Settlement Agreement should not be approved as fair, reasonable, and adequate, or why a judgment should or should not be entered thereon, or why the incentive award to the named Plaintiff should not be made, or why attorney's fees inclusive of the expenses should not be awarded as provided in the Settlement Agreement; provided, however, that no class member or any other person, shall be heard or entitled to contest the approval of the proposed settlement, or, if approved, the judgment to be entered thereon, unless on or before fourteen (14) days prior to the Final Fairness Hearing, that person has caused to be filed written objections in the manner and form outlined in the Settlement Agreement, stating all supporting bases and reasons with:
AND has served copies of all such papers at the same time upon the following by first-class mail, in accordance with the requirements of the Settlement Agreement:
14. A Final Fairness Hearing is scheduled for
15. Any class member may attend the Final Fairness Hearing, which is open to the public.
16. Attendance at the Final Fairness Hearing is not necessary in order for an objection to be considered by the Court; however, any person who wishes to be heard orally in opposition to the approval of the settlement are required to indicate in his or her written objection his or her intention to appear at the hearing. All written objections shall conform to the requirements of the Settlement Agreement and shall indicate the basis upon which the person submitting the objections claims to be a member of the class and shall clearly identify any and all witnesses, documents, and other evidence of any kind that are to be presented at the Final Fairness Hearing in connection with such objections and shall further set forth the substance of any testimony to be given by such witnesses.
17. Any class member who does not make his or her objection in the manner provided in the preceding paragraphs of this Order shall be deemed to have waived such objection and shall forever be foreclosed from making any objections to the fairness, adequacy, or reasonableness of the settlement.
18. The parties shall have until