IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SCOTT MCMAHON, on behalf of )

plaintiff and the classes defined herein, ) 

)

Plaintiff, ) No. 12 C 1410

)

v. ) Judge Jorge Alonso

)

LVNV FUNDING, LLC, RESURGENT )

CAPITAL SERVICES, L.P., ALEGIS )

GROUP, LLC, and TATE & KIRLIN )

ASSOCIATES, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff sues defendants for their alleged violations of the Fair Debt Collection Practices

Act. The case is before the Court on plaintiff’s second amended motion for class certification. For

the reasons set forth below, the Court denies the motion.

Discussion

Plaintiff asks the Court to certify three classes for its FDCPA claims, defined as:

Class A:

(a) all individuals in Illinois (b) to whom LVNV, Resurgent or any debt collector

employed by LVNV or Resurgent (c) sent a letter seeking to collect a debt that

referred to a “settlement” (d) which debt was (i) a credit card debt on which the last

payment had been made more than five years prior to the letter, or (ii) a debt arising

out of the sale of goods (including gas) on which the last payment had been made

more than four years prior to the letter (e) which letter was sent on or after February

28, 2011 and on or before March 19, 2012, (f) where the individual after receipt of

the letter, (i) made a payment, (ii) filed suit, or (iii) responded by requesting

verification or contesting the debt. 

Subclass 1 (alleged in the first amended complaint as Class C): 

Case: 1:12-cv-01410 Document #: 158 Filed: 06/15/15 Page 1 of 5 PageID #:1493
[T]hose members of Class A who were sent a “Validation of Debt” notice similar to

one attached as Exhibit C to Plaintiff’s Amended Complaint. The “Validation of

Debt” notice contained the date on which LVNV or Resurgent purchased the debt

and not the date of default.

Subclass 2 (alleged in the first amended complaint as Class B):

[A]ll persons in Class A who were sent a collection letter by Tate & Kirlin

Associates, Inc.

(Pl.’s Reply Mem. Supp. 2d Am. Mot. Class Cert. at 3-4.) This definition of Class A, however, is

different from the one plaintiff alleges in the first amended complaint. (See 1st Am. Compl. ¶ 55.) 

Defendants argue that the change in definition precludes class certification. 

The parties do not cite, and the Court has not found, a Seventh Circuit case that states

whether a court can evaluate a certification motion based on a class definition that differs from the

one alleged in the complaint. Moreover, as Judge St. Eve noted in Savanna Group, Inc. v. Trynex,

Inc., No. 10 C 7995, 2013 WL 66181, at *2-3 (N.D. Ill. Jan. 4, 2013) (collecting cases), a number

of district courts have refused to do so.

Here, however, it is difficult to see any practical advantage to requiring plaintiff to amend

his complaint before the Court considers the propriety of certifying Class A as it is now defined. 

Defendants would raise the same arguments in opposition to a motion for leave to amend the class

allegations that they raise now in opposition to certification. Moreover, having disavowed the

alleged definition of Class A, plaintiff will have to amend the class allegations, regardless of how

the certification issue is decided. Thus, though plaintiff should have asked to amend the class

definition before moving for certification, requiring him to do so now would only delay the

proceedings. Accordingly, the Court will evaluate the propriety of certifying the classes as

amended.

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Certification is proper only if each of the classes meets all of the requirements of Rule 23(a)

and one of the requirements of Rule 23(b). See Fed. R. Civ. P. 23; Rosario v. Livaditis, 963 F.2d

1013, 1017 (7th Cir. 1992). Rule 23(a) is satisfied if: 

(1) the class is so numerous that joinder of all members is impracticable; (2) there

are questions of law or fact common to the class; (3) the claims or defenses of the

representative parties are typical of the claims or defenses of the class; and (4) the

representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a)(1)-(4). Rule 23(b) is satisfied if, as relevant here, common questions of law

or fact predominate over any questions that affect only individual class members and a class action

is superior to other available methods of adjudicating the dispute. Fed. R. Civ. P. 23(b)(3).

Defendants do not “challenge numerosity.” (Resp. Opp’n Pl.’s 2d Am. Mot. Class Cert. at

5 n.1.) Therefore, the Court starts with commonality, which “generally exists when the defendant

has engaged in standardized conduct towards the members of the proposed class.” Parkis v. Arrow

Fin. Servs., LLS, No. 07 C 410, 2008 WL 94798, at *4 (N.D. Ill. Jan. 8, 2008) (quotation omitted). 

Plaintiff alleges that defendants violated the FDCPA by sending a letter and/or validation of debt

notice to putative class members offering to settle a debt without disclosing the fact that the statute

of limitations on the debt had expired. (1st Am. Compl. ¶ 49.) Whether defendants, in fact, sent

such letters and whether the letters were unfair or deceptive in violation of the FDCPA are questions

common to the classes. Thus, the commonality requirement of Rule 23(a) is satisfied. 

“The question of typicality in Rule 23(a)(3) is closely related to the . . . question of

commonality.” Rosario, 963 F.2d at 1018. “A ‘plaintiff’s claim is typical if it arises from the same

event or practice or course of conduct that gives rise to the claims of other class members and his

or her claims are based on the same legal theory.’” Id. (quoting De La Fuente v. Stokely-Van Camp,

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Inc., 713 F.2d 225, 232 (7th Cir. 1983)). Such is the case here. Therefore, the typicality element

is also met. 

The issue of adequacy depends on “the adequacy of the named plaintiff’s counsel, and the

adequacy of representation provided in protecting the different, separate, and distinct interest of the

absentee members.” Sec’y of Labor v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir. 1986) (en banc).

Plaintiff’s counsel is experienced in class action litigation and, though plaintiff does not have a claim

for actual damages like the other putative class members, his claims are not “antagonistic [to]” or

in “conflict[] [with]” the other members’ claims. Rosario, 963 F.2d at 1018 (stating that “[a] class

is not fairly and adequately represented if class members have antagonistic or conflicting claims”). 

Accordingly, the adequacy requirement is met. 

That is only the half the battle, however, as the classes must also satisfy Rule 23(b), which 

requires that common questions predominate over individual ones and that a class action be a

superior method of adjudicating the dispute. Because these classes include consumers seeking

actual damages, i.e., those who paid some part of the debt after receiving a letter or notice of

validation, there will be individual issues of causation and damages. Even if, as plaintiff asserts, the

amount of damages due each class member is “capable of ministerial determination” (Mem. Supp.

Pl.’s 2d Mot. Class Cert. at 11), causation, i.e., determining whether class members paid the debt

because of the letter, out of moral compulsion, or for some other reason, is not. See 15 U.S.C. §

1692k(a)(1) (“[A]ny debt collector who fails to comply with any provision of [the FDCPA] with

respect to any person is liable to such person in an amount equal to the sum of . . . any actual damage

sustained by such person as a result of such failure) (emphasis added); Crabill v. Trans Union,

L.L.C., 259 F.3d 662, 664 (7th Cir. 2001) (“Without a causal relation between the violation of the

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statute and the loss of credit, or some other harm, a plaintiff cannot obtain an award of ‘actual

damages.’”) (quotation omitted). Moreover, given that Class A is estimated to have 3,000 members

(see Mem. Supp. Pl.’s 2d Mot. Class Cert. at 10), the individual issues will dwarf the issues common

to the class, making this case unsuitable for class certification.

Conclusion

For the reasons set forth above, the Court denies plaintiff’s motion for class certification

[131]. Plaintiff is ordered to amend its complaint to allege the class definition set forth in its motion

for class certification within seven days of the date of this Memorandum Opinion and Order. 

SO ORDERED. ENTERED: June 15, 2015

__________________________________

HON. JORGE ALONSO

United States District Judge

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