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Powers v. The Collection Analyst, Inc.

United States District Court, D. Nebraska

June 28, 2018

LAURA POWERS, on behalf of herself and all others similarly situated; Plaintiff,
v.
THE COLLECTION ANALYST, INC., and JUDITH D. RETELSDORF, Defendants.

          FINDINGS AND RECOMMENDATION

          Susan M. Bazis United States Magistrate Judge

         This 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.

         BACKGROUND

         The 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.

         The 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.

         At this 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 motion.

         DISCUSSION

         Plaintiff 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”). Fed.R.Civ.P. 23.

         In 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.

         If the 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. 23.

         The 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.

         The 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.” Amchem Products, Inc. v. Windsor,521 ...


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