in previous collection lawsuits venue din various counties throughout the state in nebraska who received certain kinds of complaints and certain kinds of discovery requests the claim here by the plaintiffs is that c m s in each of the five individuals violated the federal fair debt collection practices act and also the number rascasse speak consumer protection act through those tweeting spaced on some of the allegations or some of the questions in the pleadings this around the time that class certification was argued the parties extensively brief summary judgment motions so that is in the record but those motions were never ruled on and after this intellect a jury appeal was granted the court on its own motion stayed the summary judgment motions so those are all pending but they may be of interest in terms of they discussed in detail the nature of the claims we ask that this court to vacate the class certification ruling primarily because there are simply too many individual issues both as to liability and damages for the plaintiff to meet their burden of showing commonality typicality and predominance under rule twenty three a and b i intend to focus mostly this morning with my time on the practical issues that are arising under these individual questions but as time permits i'll try to touch upon the other objections we have which is that this is not the plaintiffs cannot establish already given the circumstances or that the name class members are adequate representatives so turning to the to the case in my mind this is a pretty unique kind of class action at least in the hundreds of letters or thousands of letters that are exactly the same format all seeking for example a collection c or something like that there's some defect in them the defendant named is usually liable across the board to walk l members as opposed to this assortment of individuals who only had involvement in certain certain class members cases and and a lot of times you don't see a plaintiff seeking actual damages because that's going to introduce a lot of individual questions so there are statutory damages permitted under the f t c p a that would lend itself more readily to class action so this case deviates from that normal scenario quite a bit is still a thousand but it's limited to one percent and well the class member can get us out on dollars but now turning to the class at large what can they receive a class member that that's the class of large unless you're f can recover up to the lesser of five hundred thousand dollars or one percent of the net worth of defendants so if you have a defendant who is has a net worth in excess of fifty million dollars there's a cap of the statutory damage of fifty thousand dollars i'm sorry five hundred thousand dollars but for example if if the net worth is much lower again then you have to take the one percent so those are the remedies seeking a certified class will not go for actual damages and will just stick to the to the statutory piece but if the net worth is not in excess of fifty million dollars if it's more if it's if if  it's relatively low and one percent is almost negligible compared to the how many are in the class would have to split it up we contend and judge all suppan judge doty have ruled that that scenario makes a class presented more than that ninety days before the complaint was served or whether the debt was liquidated in titling c m s to prejudgment interest  those complaints that c m s uses are generated from initially from standardized forms but they're not all identical the two class representatives we have here ms powers and then the palmers had different complaints as as ms hermance is affidavit discusses not every complaint that  has commenced in the brask over the last four years of the class period over seven to twenty levon and it's normally just a little above twenty five thousand lawsuits per year  so using that as a rough number we could have bearing in mind that not all of them are necessarily identical or seek interests but you could use a rough number of you need to look through twenty five thousand complain to determine you know which of the the language that's been complained about which are seeking interest it's better that's going to be a large task complicated by the fact that c m s doesn't have all their files dating back to two thousand and seven it's say files since the case was started but but it normally it discards files after the matter is done and the other thing that i think is important is we need to find out what happened in those cases was it was it litigated in judgment entered in favor of c m s in the sermons affidavit says most of the cases from the recent period of the class went to a judgment  some of these had involved counsel for the debtors so these cases were litigated and we're looking at taking a second look at these complaints and seeing what happened and was interest paid was interest properly requested some of it have to be paid back in damages i just think it's going to take a lot of effort and a lot of work to kind of kind of recreate to reinvent the wheel of what was already litigated now what you're saying is if we did not have class or vacation is denied the all in all likelihood it will not be anything approaching twenty five thousand cases there might be twenty five well yeah i think it's fair to say there's not to be twenty five thousand  t where i disagree with the district court is when there's a discussion about the fact that well nobody would bring an individual case under the f t c p a for only speaking only hundred dollars in damages the fact of the matter is individual consumer can bring an f t p a craze for up to a thousand dollars without regard to actualize and then seek whatever actuals they want and most importantly seek their reasonable attorneys fees and costs so  you sent that present meant that you presented that claim and you didn't really do it more than ninety days and therefore you misrepresented something in the complaint the fact is sometimes requests you know talking about the debt but the difference is they don't always use that letter as the ninety day present minutes the creditor has already sent one they will reference the date a vat notice in their complaint so you know we we we strongly disagree with the merits of this we don't we think the statute is perfectly you know we perfectly well complied with the statute by relying on the fact that the creditor did it but even assuming that the plaintiff allegation is true we're going to have to then sort through these files and decide which which you know which claim was presented factory are you in fact arguing that you're asking us to do the rigorous separate class of case it is to two of the classes are relate to the discovery the plaintiffs say you sent us discovery where the instructions were not good enough because we didn't explain fully how we might object to them and secondly you asked some questions that were not relevant to the case so again how is that all going to be worked out on a class action basis good question seeing that we're going to have to look through its files determine when it sent discovery and i argued your honor that it's one important fact is whether they serve the discovery on in an attorney for the debtor or whether they served on the discovery on a pro se debt or in the litigation the circumstances do matter and it does matter whether the lawyer or the court acted in some reliance on the pleading and it doesn't matter what the context was and you need to look at that on a case by case basis in fact i think are the words of the court in that decision so we argued that on class certification the district court responded it to that argument by saying it does not matter at all whether a lawyer was involved or not i mean the fact of the matter is the palmers two of the class representatives were represented by counsel our discovery was served on counsel and they responded with some objections to say so too i think to say that i don't across the board basis all these consumers should be deemed to have been fooled or misled by discovery that was actually served on their attorney i think should not make out any client kind of claim under the fair  collection practices act much less the state consumer protection act that should should incorporate some elements of reliance so i think your honor that was a failure to rigorously analyze and also just a plain there of law as i read the eight circuit law and having said i'd like i'm almost out of time i'd like to reserve the rest  we're arguing actually are not in fact as they say let me let me give you an example the first of all they are probably you don't dispute he got his start sir not by telling me how you would determine whether the man was have certain requirements one is that you have employed an attorney which of course they don't hear the second is that you have to send a claim for ninety days if you do those things you get a judgment then you can get attorney's fees well their records show a lot of ways of finding out we asked how many were sent she says they simply run a report we also took the deposition of a lady by the name of venus garrett that testimony some of it appears at the end of teles free also attached to the end of a kelly's brief she testified that for each account they have what they call collection notes and the collection notes was broken down for example nicole palmer and it says and i quote legal interest zero legal  k cost eighty two seventy three judgment legal fees ninety dollars and interest forty six fifty nine these are things that the computer automatically prints out so all they have to do is run a report to get that information in fact as i was explaining to the court for a hundred thousand they can run a report for they can run a report and find out they also run monthly reports about how much was collected each month and they have and if you want to know they've always they've always collected attorneys fees and the only way they could have was to have pleaded that in their complaint so they would have always used to complaints so you don't have to run go through all the complaints your honor i'll tell you why you don't have to go through all the complaints to find out who's in the class if you look at the evidence in this case at the end of a volume one and the beginning of volume two all of the information every single case is on our state equivalent of  pacer called justice and we actually did this prior to class certification you know see for example at the end of the joint appendix number one here is a print out all the way back during the entire class period for all the cases would you were sure there thank you is that better and then not only that your honor we broke it down by attorney so all of the class members names are in here all they have to do to determine who's in the class basically is just run the list it's a very easy thing for them to do they have lists that they breakdown monthly they have a list that they write down by consumer it's not just  there are specific violations alleged for every file we mayn't was there and the man was there collection of interest is there a state court judgment that would have to be sends it because a creditor could send it for five years before they even get the account if you want to get attorney's fees interest and cost under twenty five eighteen zero one you have to meet all the requirements there was a case out of nebraska  the state law that no the state law we said a violation of twenty five eighteen zero one in the state laws a violation of the fair debt collection practices act because what authority for that well we have paid versus general service bureau in nebraska cited in our brief that was also a case brought under nebraska revi statute twenty five eighteen zero one the identical statute there the court certified that case and granted summary judgment after that for the plaintiffs saying that they didn't meet all the requirements of twenty five eighteen zero one before they were collecting attorney fees interest and cost so that's what we have here and with regard to mr herman since affidavit i want to point out that prior to her affidavit the record shows that deposition of tester her tester hermanson taken in october i believe it was two thousand and twelve prior to the class action motion being filed at that time  i will go through the record most hermanson testified at that deposition that that this complaint that they use for twenty five eighteen no one really for they get attorney's fees has been used the entire time she's been there from two thousand and eight and that it is used by all the and all the all the attorneys there when and they always have to plead those things so we don't have to go through all the complaints everybody they sued as a member of the class she also testified that it's a standard form and she testified the same way that the discovery is a standard form as well and that all they have to do is run run a report to get the information to determine how many people are in the discovery violation class and the complaint class and that is not a serious thing they have the testimony is that they have five computer i t guys one hundred eighty employees  and that the i t guys are actually able to run a report to determine who was going to be for example in the second class pertaining to the discovery because even though they may very questions the testimony was the three discovery questions  is the wording of the statute and how do you determine that on the class wide basis what the court said in hague versus general service bureau which is also brought under twenty five eighteen zero one and that statute is that they would basically anybody who had actual damages would be damaged in their property in the mere fact that damages vary from one person to another does not defeat certification they rely on for example monday out of the district of minnesota  that for that proposition now remember the c p a the the state claim also allows for a thousand dollars up to one thousand dollars per person as well so the class members are actually getting more of a benefit through the class action than they would be through any individual case on that so what i'm what i'm telling you is if you look at the deposition of tester hermanson that was taken prior to the time we filed our class complaint she she concedes basically these are all standard forms they always sued under that statute twenty five eighteen zero one where they have to show that they had a lawyer retained where they have to show that they send a ninety day notice for the medical bills every lawyer used that so we have a common question of our claim is twofold one is with regard to collecting attorney's fees the only statute that allows you to collect attorney's fees and nebraska is nebraska statute twenty five a to know what and in the hay case that was two thousand and two the court says strict compliance you have to show this they file an answer in this case that say we don't stand it we rely on the original creditor that we say is a violation because that's a violation then we believe it's a violation of the fair debt collection practices act to collect attorneys fees that are not expressly permitted by law and it would not be permitted by the state law if they didn't meet those requirements that that's what we are saying and this is a this is something that they do across the board you know hermanson the affidavit is interesting is completely contrary as we so forth in our brief to everything she says in her deposition you know she says oh we use other complaints they've never come forward with a single different complaint pulled you know a number of the complaints across the state of nebraska every single one of them as you can see there attached at the beginning of of the appendix in volume two every single one of them from every single lawyer were identical the only difference was the name of the creditor the amount and the name of the consumer they were suing so we don't have a large number of different complaints here what you don't see on the record is any of the lawyers coming forward saying i personally don't use the complaint i personally use something else i've changed the complaint not a single one what you also don't see in the record is a any other sample of a complaint that they contend they use you don't see any other discovery request being used you know there's no there's no record of anybody none of the lawyers you have tested hermanson saying those three discovery questions were used since two thousand and eight when she was there so this is basically  saying that the violation occurred at the time the complaint was filed when they asked for and didn't meet the required you know with the with the state court judgment if it proved interesting categor held that record feldman doesn't apply because we don't have collateral attack on a judgment what we have here is a focus on the f t c p a violations sure i think it's i think it's an opponents versus general credit company from the district of nebraska and that case there was a class action brought for statute of limitations involving credit card debt or after  one fielder i believe it well jenkins would have been in two thousand and eight one was fielder and so what happens concord fielder well what i can tell you is that i think correct that we're not asking the court to do anything with a county court judgements were asking the court to award damages if there is some statutory damages would still be something that can be awarded even assuming that there is no actual you're wrong on that what you would do it again as you would look at the fair at their individual print outs which they run monthly in weekly where they say you know in this particular case we have a print out word shows exactly how much the attorneys fees that were collected they actually have computer programs that show this amount for attorney's fees the sum out for interest if you can get the attorney's fees on it but that's a show of whether one judge you can get attorney's fees under twenty five each you know one unless there's judgment so you would have to have a judgment to get attorney's fees so every one of these collateral with before it's either written well the court would have to decide whether or not the collection complaints violate the f t c p a it would be across the board one way or another but we do not believe it's a collateral attack on a county court judgement we're asking for a statutory damages under the n c p a we're also asking for an injunctive relief which is provided specifically under the n c p and any actual damages what happens in the county court basically is going to remain the way it is in the county court asking for the court in the district court k to to award whatever actual damages there are as a result of them using this discovery and the county court complaints that they're using as a result of collecting  essential because you can still have statutory damages no matter whether you collect the actual or asking the court to return the money back on the state courts you can get statutory damages if the court determines that their complain that is irrelevant as far as the violation of her so you know what happens is we believe that certification is proper a lot of the courts for example will say it doesn't matter what the responses are whether they have a lawyer whether you know anything else that the violation occurred at the time the complaint was filed number of management techniques that the court hassle with regard to damages there could be you know with the printout they would just be able to determine damages so yeah there would be a certain amount of there wouldn't be very many and we would already know who is on the subclasses from the justice print out in a way you're saying it's not an unmanageable no it's not an unmanageable class and as judgement time and pointed out the judicial economy argument have a class action because without the class action given the large number of cases we have here you know that he believed that to be more unmanageable you know then than having a class action which is uniquely designed to handle these littlest cases that you know may not otherwise be brought so from a superiority standpoint you know row twenty three b would be the best way where about those cases where there  away it goes back i think if it goes if it goes back and it goes back certified then there would be a determination by the court probably on summary judgment what violated the law and what didn't if it we get to the damages standpoint the court would determine  you know who gets actual damages and how much they get you know and in cases like money versus e m c see the district court said well maybe you want to have individual determinations of that but that doesn't bar class certification so threw up their hands and now we deal with oh who are you referring to they even talked about the court why didn't the court do it at the time well i think the court believe that there was a common question of law  fact and decided that damages for it were for a later time that damages is one of the things that the court needed to determine at the time of of classification and needed to determine the elements of rule twenty three and then you know upon  certification damages would be determined as a later date were the workflow is such that the group of in house lawyers use and have used standardized type forms over time and that is what the two the money is those have been in effect for a while but that's not to say that the forms can't and sometimes are modified in certain ways and in the deposition or the discovery for example the testimony is that sometimes a question is taken out or or done differently so you know it may be by and large that these are standardized but we still we're still going to need to see what was actually done that brings me to the point about that i just wanted to mention the twenty separate subclasses that i think need to be ultimately done here to proceed against four different in house lawyers workflow is not that one attorney is assigned to handle a particular case for the life of the case the workflow at the company is that an attorney who's got time that day handles the items that are up for review that day so if an answer comes in on a particular complaint even though they didn't draft the complaint they might look at the answer and decide are we going to send discovery out or what not and if so that attorney will then sign that discovery these group of four attorneys some of them were not even employed most of them were not employed at the company going back to two thousand and seven and as i said they're not all going to have been involved in every  why i don't know why the why the plaintiffs named all four individuals defendants they were they were all involved in some way or fashion along the line in the powers in the palmers cases mr keith wasn't involved in drafting the complaint or discovery but he came in later on some here and so my point is this your honor that it can't be the law that if that's a hermansen join the company in two thousand and nine or whatever it was that she can be liable for something that was done in two thousand and seven can't be the law that she is liable for a complaint that she didn't know about didn't sign so i think the court is going to have to go through and decide not that each for a lot able to the hall for classes as certified but what part of which quest members might be able to recover from each attorney and that to me is extremely complicated the district court's decision said this well we could use subclasses in the future and that's really an issue that can be sorted out at trial and i say your honour's that that is the kind of issue that needs to be rigorously analyze that the class certification stage and if there need to be separate subclasses that needs to be grappled with and thought about