In the instant case, the defendant argues against certification on four grounds: (1) that the plaintiff fails
to meet the commonality requirement; (2) that she does not meet the typicality requirement; (3) that she
will not fairly and adequately represent the putative class due to antagonistic interests; and (4) that her
class definition is too vague and thus members are unidentifiable.’
1.Commonality

Rule 23(a)(2) requires that there exist at least one question of law or fact common to the class.
See In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D. Ill. 1991). Where a common question of law refers
to standardized conduct by defendants toward members of the putative class, a common nucleus of
operative fact is typically presented, and the commonality requirement is usually met. See Allen v. City
of Chicago, 828 F. Supp. 543, 551 (N.D. Hl. 1993). “Not all factual or legal questions raised in a lawsuit
need be common so long as a single issue is common to all class members.” Riordan v. Smith Barney,
113 F.R.D. 60, 63 (N.D. Ill. 1986) (citing Midwest Cmty. Council, Inc. v. Chicago Park Dist., 87 F.R.D.
457 (N.D. Ill. 1980)). Thus, class certification cannot be defeated merely because there are some factual
variations among the members! grievances. See Allen, 828 F. Supp. at 551.

The defendant claims that the plaintiff's proposed definition does not put forth a common
nucleus of operative fact fails.‘ RMA claims that because the plaintiff did not respond to either offer,
the plaintiff's claim is not common to the class she proposes. The plaintiff's proposed class includes

individuals to whom the defendant sent similar multiple form collection letters making one time

>The defendant does not dispute that numerosity is satisfied; in fact the plaintiff relies on the
defendant’s approximation of the class size at 1,500 persons. The defendant also does not challenge
the sufficiency of the plaintiff's interest in the outcome of the case, the adequacy of her counsel, or
that a class action is superior to individual actions. .

‘The defendant only challenges Rule 23(b)(3) inasmuch as it challenges that commonality is
not satisfied. However, if commonality is satisfied, RMA does not dispute that a class action is
superior to other methods for fair and efficient adjudication of this case.

4



we

can be ascertained objectively.? Second, the class can be identified by referring to the defendant’s
misconduct, specifically RMA’s practice of sending a given individual multiple settlement offers under
similar terms, each claiming to be a “one time settlement” offer. Therefore, the proposed definition is
sufficiently specific to comprise individuals exposed to the relevant alleged misconduct.'°

II. CONCLUSION

Having found that Plaintiff Jones’s proposed class definition satisfies the prerequisites of Rules

23(a) and 23(b)(3), we grant the plaintiff's motion for clgg§ certification. It is so ordered.

MARVIN E. A:
United States District Judge

Dated ZLile : 4

Whether an individual received more than one “one time settlement” offer from RMA is the
objectively determinable criterion on which the plaintiff's claim is based.

'°As discussed earlier, the defendant provided the plaintiff with a figure of approximately
1,500 individuals fitting the proposed definition, further weakening RMA’s contention that the
definition is too vague to identify class members.



members. See De La Fuente, 713 F.2d at 232. Furthermore, similarity of legal theory may control even
in the face of differences of fact. See id.

The plaintiff is clearly seeking relief under the same legal theories for both herself and her
proposed class. All potential class members’ claims will be based upon plaintiff's contention that the
defendant violated §1692(e) ofthe FDCPA by making false and misleading statements in form collection
letters. The plaintiff's claim also arises from the same conduct that would give rise to the claims of other
proposed class members: that the defendant made false and misleading statements in form debt
collection letters by sending multiple “one time offers” to the same individuals.

The defendant contends, however, that the plaintiff's claim is atypical because it is adverse to
any putative class members who “got a good deal” by responding to a settlement offer. The defendant
further argues that the plaintiff’s lack of response to either settlement offer differentiates her from class
members who did. Unfortunately for the defendant, however, the proposed class members’ acceptance
or rejection of the offers is irrelevant. Rather, the class definition proposed by the plaintiff concerns the
allegedly false and misleading nature of the defendant’s collection letters. See Pleasant v. Risk Mgmt.
Alternatives, Inc.,2003 WL 164227 (N.D. Ill. 2003) (holding that a letter allegedly making a “one-time”
settlement offer would be false and misleading if the settlement offer was not actually a one-time offer).
If these statements are indeed found to be false and misleading in violation of the FDCPA, we must
focus on the misconduct, not whether the debt is valid or whether the consumer has paid an invalid debt.
See Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). Thus, it is the defendant’s allegedly misleading

statements in form collection letters, and not the plaintiff's response to these letters that comprise the

‘Although the plaintiff's claim would likely yield only statutory damages, the plaintiff points
out that any putative class members who feel that they have suffered actual injury by having
responded to any of RMA’s offers are free to opt out of the class and pursue action as an individual.



settlement offers. The relevant common nucleus of operative fact is whether individuals were subjected
to the defendant’s standardized practice of sending multiple limited time settlement offers to the same
individuals, see Gammon v. GC Services Ltd. Partnership, 162 F.R.D. 313, 317 n.4 (N.D. Ill. 1995); see
also Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992), not their acceptance or rejection of the
offer. See Patrykus v. Gomilla, 121 F.R.D. 357, 361 (N.D. Ill. 1988); see also Franklin v, City of
Chicago, 102 F.R.D. 944, 949 (N.D. Il. 1984).5 We therefore find that the proposed class satisfies the
commonality prerequisite.
2. Typicality

Rule 23(a)(3) requires that the claims of the named representatives be typical of the claims or
detenses of the class. See Fed. R. Civ. P. 23(a)(3). When evaluating typicality, we focus on whether the
named representative’s claims have the same essential characteristics as the claims of the class. See
Allen, 828 F. Supp. at 553. A plaintiffs claim is typical if it arises from the same event, practice, or
course of conduct that gives rise to other class members’ claims and all claims are based on the same
legal theory, See De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983); see also
Allen, 828 F. Supp. at 553. Typicality might not be met, however, if the named plaintiff is subject to a
unique defense that will distract the plaintiff and cause class representation to suffer. See Hardy v. City
Optical, Inc., 39 F.3d 765, 770 (7th Cir. 1994); see also J.H. Cohn & Co. v. Am. Appraisal Assocs., 628
F.2d 994, 999 (7th Cir. 1980). This requirement, however, is not particularly strict; it may be met even

if there are factual distinctions between the claims of the named plaintiffs and those of other class

5The defendant mentions that the plaintiff would recover only statutory damages, as she
accepted neither settlement offer. (Def.’s Class Cert. Resp. at 3). Aside from drawing the conclusion
that the plaintiff incurred no actual injury from the defendant’s conduct, RMA fails to enunciate why
this would be problematic to satisfying commonality; therefore this Court declines to examine this
issue further.



If RMA’s form collection letters are found to be false, deceptive or misleading in violation of
§1692(e) of the FDCPA, each member’s rights were violated, regardless of whether potential class
members responded to the offers. See discussion infra Part II.A.2. Thus, the plaintiff's interests and
claim are neither adverse nor antagonistic to other class members, because acceptance or rejection of
the offers is irrelevant to qualification for the proposed class, Furthermore, individuals who would rather
pursue an individualized claim because they accepted the defendant's offers are free to opt out of the
class. Accordingly, there ate no apparent antagonistic or adverse interests between the plaintiff and
proposed class members. The plaintiff is therefore an adequate representative of the class she seeks to
certify.

4. Class Definition

Finally, the defendant contends that the plaintiff has not defined an identifiable class, an implicit
requirement of Rule 23(a). See Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.
1977); see also Gomez v. Illinois State Bd. of Educ., 117 F.R.D. 394, 397 (N.D. Ill. 1987). An
identifiable class exists if its members can be ascertained by reference to objective criteria and the
defendants’ conduct. See Rochford, 565 F.2d at 978; see also Buycks-Roberson v. Citibank Fed. Sav.
Bank, 162 F.R.D, 322, 328 (N.D. Ill. 1995).

RMA argues that the class defined by the plaintiff is vague and overbroad because it refers to

letters that are merely “similar.”* We hold that the class is not indefinite or overbroad. First, this class

®The defendant also contends that the definition “inaccurately characterizes the letters [] as
duplicate ‘one time settlement’ offers when in fact they are two distinct offers.” The plaintiff
responds by alleging that both settlement offers were equivalent to 75% of the balance the plaintiff
allegedly owed at each point in time. This Court declines to form an opinion as to the truth of either
contention, as that would entail an evaluation of the merits of the case. See Rohlfing v. Manor Care,
Inc., 172 F.R.D. 330, 335 (N.D. Ill. 1997).



‘Minute Order Form (0697)

United States District Court, Northern District of Minois

Name of Assigned Jud; ‘i Sitting Judge if Oth
vor Magistrate Judge Marvin Aspen han Assigned Judge
CASE NUMBER 02 C 9392 DATE 7/9/2003
CASE Debra Jones vs. Risk Management Alternatives, Inc.
TITLE
Un the foltowing box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:

9)
(2)
3)
(4)
G)
©
”
(8)
(9)

(10)

ay

Oo Filed motion of [ use listing in “Motion” box above.]

oO Brief in support of motion due.
a Answer brief to motion Jue, . Reply to answer briefdue_
Oo Ruling/Hearing on setfor at.
Oo Status hearing[held/continued to] [set for/re-set for]on__—ssetfor_
oOo Pretrial conference[held/continued to] [set for/re-set for]on__set for _
a Trial{set for/re-set for]on__—
a (Bench/Jury trial] [Hearing] held/continuedto__—__at
Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) ClLocal Rule 41.1 CUFRCP41(a)(1) C1 FRCP41(a)(2).
| [Other docket entry] Enter Memorandum Opinion and Order: Plaintiff's motion for class

certification (10-1) is granted.

B [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

1YNOS LoYwLSIa “sn
waty

ce38 WY Ot WNP eu

Copy to judge/magistrate judge.
courtroom
GL deputy’s
initials

al at sortal |



essential characteristics of her claim. See Keele, 149 F.3d at 594; see also De La Fuente, 713 F.2d at
232. We therefore find that the plaintiff's proposed class definition fulfills the typicality requirements
of Rule 23(a)(3).’
3. Adequacy

Federal Rule of Civil Procedure 23(a)(4) requires that the named plaintiff be able to “fairly and
adequately protect the interests of the class,” and entails a two-fold inquiry. See Allen, 828 F. Supp. at
553. First, the court must be satisfied that the named plaintiff's counsel is qualified to sufficiently
pursue the putative class action. Jd. Second, the members of the advanced class may not have
antagonistic or conflicting interests. Jd. While the defendant does not dispute the competency of the
plaintiff's counsel or the sufficiency of her interest in this case’s outcome, RMA disputes her adequacy
as a representative of the class by asserting that she has interests antagonistic to the class. Specifically,
RMA argues that the plaintiff's FDCPA claims are adverse to the interests of any individuals who
responded to the defendant’s one time settlement offers and were content with the outcome of such
transactions. We find this unconvincing, both because the defendant provides no evidence to

substantiate this argument and because such criteria are irrelevant to the proposed class.

TAs discussed earlier, the defendant mentions that the plaintiff at most suffered statutory
damages because she did not respond to either offer while other class members did, but does not
explain why this might be problematic. See supra note 4. Regardless, the plaintiff's claim is not
atypical merely because her injuries are quantitatively different from those of other class members.
See De La Fuente, 713 F.2d at 232-33 (refusing to require that each class member suffer precisely
the same injury as the named class representatives, because all members of the class were subject to
the same allegedly unlawful practices); see also United Nat'l Records, Inc. v. MCA, Inc., 99 F.R.D.
178, 181 (N.D. Ill. 1983) (finding typicality in an antitrust case even though the named plaintiffs’
damages might differ quantitatively from those of other class members); Rosario, 963 F.2d at 1017
(certifying a class even though some class members may have suffered no damages at all). If and
when this litigation reaches the stage of calculating damages, it may be impossible for the plaintiffs
to continue proceeding as a class, but for liability purposes the plaintiff's claims clearly “have the
same essential characteristics as the claims of the class at large.” Retired Chicago Police Ass'n, 7
F.3d at 597 (quoting De La Fuente, 713 F.2d at 232).

oO


letter similar to the letters the plaintiff received.” One or more members of a class may sue or be sued
as representative parties on behalf of the class only 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). See Fed. R. Civ. P. 23(a). If these four requirements are satisfied, we
must also decide whether the class qualifies under one of the three subsections of Rule 23(b). See
Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (citations omitted). In the instant
case, the plaintiff seeks certification under Rule 23(b)(3), which authorizes class actions where the
“questions of law or fact common to the members of the class. predominate over any questions affecting
individual members, and a class action is superior to other available methods for the fair and efficient
adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3).

The plaintiff bears the burden of showing that the proposed class meets the requirements for
certification. See Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). In
evaluating a motion for class certification, we must accept as true all allegations made in support of
certification, see Hardin v. Harshbarger, 814 F. Supp. 703, 706 (N.D. Ill. 1993), and as a general Tnatter,

we do not examine the merits of the case. See Retired Chicago Police Ass'n, 7 F.3d at 598.

Although the “‘boundary between a class determination and the merits may not always be
easily discernible,” id. at 599 (quoting Eggleston v. Chicago Journeymen Plumbers’ Local Union
No. 130, 657 F.2d 890, 895 (7th Cir. 1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d
134 (1982)), determining the propriety of class certification generally depends on factors “enmeshed
in the factual and legal issues comprising the plaintiff's cause of action,’” Id. at 598 (quoting
General Tel. Co. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982)
(citation omitted). Accordingly, though the defendant states concerns on the merits of the plaintiff's
claim, these are more appropriately addressed at trial. (See Def.’s Class Cert. Resp. at 3).

3



a purported “one time settlement” offer to resolve her account for 75% of the balance then due, stating
the offer was for a limited duration. In pertinent part, the letter stated:
We have been authorized to offer you a one time settlement. In order to take
advantage of this offer, send your check or money order in the enclosed
envelope no later than the date listed below.
You actually owe: $6089.96
Settlement Amount: $4577.47
Amount must be received by: 06-30-02

If settlement amount is not received by the date indicated above, the offer will
be null and void and the entire balance outstanding will be due.

The defendant then made a second virtually identical “one time settlement” offer to the plaintiff, via a
letter dated July 16, 2002. This letter also made a limited time offer to settle the plaintiff's debt for 75%
of the current balance due.

The plaintiff alleges the letters are false, deceptive, or misleading in violation of §1692(e) of the
FDCPA, because the offers were neither “one time” offers nor offers of limited duration. The plaintiff
claims the letters were not one time offers because, over a five-week period, she received two letters
containing essentially identical settlement terms. The plaintiff contends the letters were not of limited
duration because the defendant is “virtually always ready to settle debts for 75% of the balance or less.”
The plaintiff requests statutory damages as provided for under § 1692k of the FDCPA, costs, and
attorney’s fees. On April 25, 2003, the plaintiff moved for class certification.

I. ANALYSIS

A. Standard for Class Certification

The plaintiff seeks to represent a class of persons consisting of “all persons in Illinois from
whom RMA attempted to collect a consumer debt, from December 26, 2001, to December 26, 2002,

allegedly owed to Citibank, and as to which the consumer was sent more than one ‘one time settlement’



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
im
DEBRA JONES, on behalf of herself and all others) DOCKETED
similarly situated, ) JUL 1 1 2003
)
Plaintiff, )
) P
v. ) Case No. 02 C 9392
)
RISK MANAGEMENT ALTERNATIVES, INC., _)
a Delaware corporation, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:

On December 26, 2002, the plaintiff, Debra Jones (“the plaintiff” or “Jones”), filed this putative
class action against defendant Risk Management Altematives, Inc. (“the defendant” or “RMA”), alleging
that the defendant’s form debt collection letters violate the Fair Debt Collection Practices Act, 15 U.S.C.
§1692 et seq. (“FDCPA”). Presently before the Court is the plaintiff's motion for class certification
pursuant to Federal Rule of Civil Procedure 23(a) and 23(b). For the reasons set forth herein, the Court
grants the plaintiff's motion for class certification.

L BACKGROUND

The defendant corporation, a debt collector working on behalf of Citibank (South Dakota), N.A.,
attempted to collect a consumer debt the plaintiff allegedly owed Citibank. The plaintiff alleges she
received two initial form collection letters from the defendant in April and May of 2002 offering to work

out a settlement of her alleged debt.! On June 11, 2002, the defendant sent the plaintiff a letter making

'These letters are the first alleged contacts between the plaintiff and the defendant, but are
not involved further in the current dispute; RMA does not challenge their existence.