United States District Court, D. Nebraska
LAURA POWERS, on behalf of herself and all others similarly situated; Plaintiff,
THE COLLECTION ANALYST, INC., and JUDITH D. RETELSDORF, Defendants.
FINDINGS AND RECOMMENDATION
M. Bazis United States Magistrate Judge
matter is before the Court on the Unopposed Motion for
Preliminary Approval of Settlement and Notice to Class.
(Filing No. 25.) The undersigned will recommend that the
motion be granted.
Amended Complaint in this case generally alleges Defendants
violated the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §1692, et
seq., and the Nebraska Consumer Practices Act
(“NCPA”), Neb. Rev. Stat. §59-1601, et
seq. (Filing No. 8.) The parties have reached a
settlement (“Settlement Agreement”). (Filing No.
27-1.) Pursuant to the Settlement Agreement, the settlement
classes consist of:
(i) all persons with addresses in Nebraska (ii) to whom
Defendants sent or served, or caused to be sent or served, a
county court collection complaint in the form of Exhibit A
(iii) in an attempt to collect alleged unpaid medical or
dental accounts. The FDCPA class extends from July 23, 2016
through July 23, 2017 (the date of filing the Amended
Complaint). The NCPA class extends from July 23, 2013 through
July 23, 2017 (the date of filing the Amended Complaint).
(Id.) The parties propose that the Court appoint
Plaintiff as class representative, and attorneys O. Randolph
Bragg, Pamela Car and William Reinbrecht as class counsel.
Settlement Agreement establishes a total settlement benefit
amount valued at $30, 000.00, with $26, 000.00 to be paid to
the NCPA class and $4, 000.00 to be paid to the FDCPA class.
The Settlement Agreement provides a mechanism for class
members to exclude themselves from the settlement, as well as
an opportunity for class members to object to the proposed
agreement by filing a written objection. Under the Settlement
Agreement, Plaintiff will request statutory damages and a
class representative fee, together totaling $4, 000.00. The
Settlement Agreement also states that Defendants will pay
Plaintiff's counsel's costs, litigation expenses and
reasonable attorneys' fees in an amount to be approved by
the Court not to exceed $28, 500.00. The Settlement Agreement
provides that this amount is in addition to the amounts to be
paid to class members.
time, Plaintiff seeks an order (1) certifying the class for
purposes of settlement; (2) preliminarily approving the terms
of settlement; (3) approving the proposed form and method for
providing notice to the proposed class; and (4) scheduling a
final settlement hearing. Defendants do not oppose the
seeks class-certification for purposes of settlement. Under
the Federal Rules of Civil Procedure, one or more members of
a class may sue or be sued as representative parties on
behalf of all members if (1) the class is so numerous that
joinder of all members is impracticable
(“numerosity”); (2) there are questions of law or
fact common to the class (“commonality”); (3) the
claims or defenses of the representative parties are typical
of the claims or defenses of the class
(“typicality”); and (4) the representative
parties will fairly and adequately protect the interests of
the class (“adequacy of representation”).
assessing whether the numerosity component is satisfied, a
number of factors are relevant, including the number of
persons in the proposed class, the nature of the action, the
size of the individual claims, and the inconvenience of
trying individual suits. Paxton v. Union National
Bank, 688 F.2d 552, 559 (8th Cir. 1982).
“The commonality requirement is satisfied if the claims
of the class depend upon a common contention whose truth or
falsity will resolve an issue that is central to the validity
of each class member's claims.” Henggeler v.
Brumbaugh & Quandahl, P.C., LLO, No. 8:11CV334, 2018
WL 5881422, *2 (D. Neb. Oct. 25, 2013) (internal quotation
omitted). The typicality requirement is met if there are
“other members of the class who have the same or
similar grievances as the plaintiff.” Alpern v.
UtiliCorp United, Inc., 84 F.3d 1525, 1540
(8th Cir. 1996) (quotation omitted). The adequacy
of representation element concerns “whether the class
representatives have common interests with the members of the
class and whether they and their counsel will competently and
vigorously pursue the lawsuit.” Henggeler,
2013 WL 5881422 at *3.
requirements of numerosity, commonality, typicality, and
adequacy are satisfied, a plaintiff must satisfy one of the
three subsections of Federal Rule of Civil Procedure 23(b).
Rule 23(b)(3) provides that a class action may be maintained
if “the court finds that the questions of law or fact
common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed.R.Civ.P.
undersigned preliminarily finds, for purposes of settlement,
that the requirements of Rule 23 have been met and that the
proposed classes should be certified. The proposed classes
consist of approximately 437 individuals. Given this number,
it would be impracticable to try each case separately. Also,
the primary legal and factual issues surrounding
Defendants' alleged course of conduct is common for all
class members. Class members would have similar grievances as
the named Plaintiff and class members' claims would
likely be based on the same legal theories. Finally, the
adequacy of representation requirement has been met because
there is no conflict of interest between Plaintiff and the
class members. Plaintiff's common interests with the
members of the class ensure that the class will be fairly and
adequately protected and counsel has considerable experience
in class-action litigation.
Rule 23(b)(3) requirements are likewise satisfied. Common
questions predominate over any questions affecting only
individual members. Also, certifying the class for settlement
purposes will “achieve economies of time, effort, and
expense, and promote . . . uniformity of decision as to
persons similarly situated, without sacrificing procedural
fairness or bringing about other undesirable results.”
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