IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

JENNIFER MCCURDY, on behalf of 

herself and others similarly situated, 

Plaintiff, 

vs. 

PROFESSIONAL CREDIT SERVICE, 

Defendant. 

James L. Davidson 

Greenwald Davidson Rabdil PLLC 

5550 Glades Road, Suite 500 

Boca Raton, FL 33431 

Kenneth P. Dobson 

Attorney at Law 

324 S.W. Abernethy Street 

Portland, OR 97239 

Attorneys for plaintiff 

Timothy J. Fransen 

Robert E. Sabido 

Cosgrave Vergeer Kester, LLP 

500 Pioneer Tower 

888 S.W. Fifth Avenue 

Portland, OR 97204 

No. 6:15-cv-01498-AA 

OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 1 of 12
Wade C. Isbell 

Ray Klein, Inc. dba Professional Credit Service 

P.O. Box 7637 

Springfield, OR 97475 

Attorneys for defendant 

AIKEN, Judge: 

Plaintiff Jennifer McCurdy ("McCurdy") received a debt collection letter from defendant 

Professional Credit Service. The letter contained a section describing the statutory right to dispute 

the debt within thirty days. That section concluded with the following sentence (hereafter, 

"additional language"): 

If you dispute any account referenced in this letter, please send all information 

regarding the dispute to P.O. Box 70127, Springfield, OR 97475. 

Compl. ~ 18 & Ex. A. 

Under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., there 

is no requirement to submit documentation to dispute a debt- indeed, the "plain language" of the 

law permits consumers to dispute debts orally. Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078, 

1082 (9th Cir. 2005). In October 2015, this Court held the additional language violated two 

provisions of the FDCPA because it would lead the least sophisticated consumer to believe she could 

not dispute a debt unless she submitted written documentation regarding the dispute. 1 See McCurdy 

1 The Court reached this conclusion in an opinion and order denying defendant's motion 

to dismiss for failure to state a claim. The Ninth Circuit uses the "least sophisticated consumer" 

standard when analyzing purported violations of § 1692e and § 1692g(b ). Guerrero v. RJM 

Acquisitions LLC, 499 F.3d 926, 934 (9th Cir. 2007). This is an objective standard applied as a 

matter oflaw. Terran v. Kaplan, 109 F.3d 1428, 1432 (9th Cir. 1997); Anderson v. Credit 

Collection Serv., Inc., 322 F. Supp. 2d 1094, 1096 (S.D. Cal. 2004) ("In the 9th Circuit, the court 

- and not the jury - determines whether a particular collection letter violates the FDCP A."). 

Because this case is exclusively about the contents of a single letter, there are no relevant 

disputed facts. Accordingly, the denial of defendant's motion to dismiss established defendant's 

liability. 

2 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 2 of 12
v. Prof Credit Serv., 2015 WL 6744269 at *3-*4 (D. Or. Oct. 30, 2015) (additional language 

violated FDCP A because it "overshadow[ ed] or [was] inconsistent with the consumer's right to 

dispute the debt," in violation of 15 U.S.C. § 1692g(b), and was a "false, deceptive, or misleading" 

representation made in an attempt to collect a debt, in violation of 15 U.S.C. § 1692e(10)). 

Before the Court now is plaintiffs Motion for Class Certification and Appointment of Class 

Counsel. For the reasons set forth below, plaintiffs motion is granted. 

STANDARDS 

"The class action is an exception to the usual rule that litigation is conducted by and on 

behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes, 569 U.S. 338, 348 

(2011) (citation and quotation marks omitted). "In order to justify a departure from that rule, a class 

representative must be part of the class and possess the same interest and suffer the same injury as 

the class members." Id. (citation and quotation marks omitted). 

"Class certification is proper if plaintiffs show that they meet the requirements of Fed. R. 

Civ. P. 23(a) and also come within one of the provisions of 23(b)." Wilcox Dev. Co. v. First 

Interstate Bank of Or., NA., 97 F.R.D. 440, 443 (D. Or. 1983). The plaintiff bears the burden of 

establishing the requirements of Rule 23 are met. Zinser v. Accufix Research Inst., Inc., 253 F.3d 

1180, 1186 (9th Cir. 2001). "A class may only be certified if [the court] is satisfied, after a rigorous 

analysis, that the prerequisites of Rule 23(a) have been satisfied." Hanon v. Dataproducts Corp., 

976 F .2d 497, 509 (9th Cir. 1992) (citations and quotation marks omitted). As such, "district courts 

[have] broad discretion to determine whether a class should be certified, and to revisit that 

certification throughout the legal proceedings." Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th 

Cir. 2001), abrogated on other grounds, Johnson v. California, 543 U.S. 499, 504-05 (2005). 

3 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 3 of 12
Under Rule 23(a), the plaintiff must demonstrate: 

(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). Under Rule 23(b), the plaintiff must also prove, in relevant part, that 

"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(b)(3). 

DISCUSSION 

Plaintiff seeks to certify the following class: 

(a) All persons with an address within the United States, (b) to whom Professional 

Credit Service sent an initial written communication between April 1, 2015 and April 

30, 2015, (c) that stated: "If you dispute any account referenced in this letter, please 

send all information regarding the dispute to P.O. Box 70127, Springfield, OR 

97475," (d) in connection with the collection of a consumer debt. 

Pl.' s Mot. Class Cert. 2. 

Defendant opposes certification on two grounds. First, defendant challenges plaintiffs 

fitness to serve as a class representative under Federal Rule of Civil Procedure 23(a)( 4). Second, 

defendant argues the proposed class does not meet the "superiority" requirement of Federal Rule of 

Civil Procedure 23(b)(3) because the limitation to individuals who received letters in April 2015 

creates an arbitrary sub-class and opens the door to serial class actions. I first address defendant's 

arguments, and then assess whether the proposed class meets the remaining requirements of Rule 

23. 2 

2 For the purpos~s of the motion for class certification, defendant concedes numerosity, 

commonality, and typicality, and does not contest the adequacy of class counsel. Def.'s Opp. 

4 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 4 of 12
I. Adequacy of McCurdy as Class Representative 

Under Fed. R. Civ. P. 23(a), "the representative parties [must] fairly and adequately protect 

the interests of the class." Fed. R. Civ. P. 23(a)(4). A plaintiff is an adequate class representative 

if (1) neither she nor her counsel has any conflicts of interest with other class members and (2) she 

and her counsel will prosecute the action vigorously on behalf of the class. Evon v. Law Offices of 

Sidney Mickell, 688 F.3d 1015, 1031 (9th Cir. 2012). Defendant argues McCurdy is not an adequate 

class representative because never disputed the debt or intended to dispute the debt. Relatedly, they 

characterize this lawsuit as a bad-faith attempt to avoid paying a debt she owes. 

Whether McCurdy owed the debt defendant was attempting to collect has no bearing on this 

lawsuit or on her fitness to serve as a class representative. First, validity of the underlying debt does 

not affect a debt collector's liability for violations of the FDCP A. See McGuire v. Credit Coll. Serv. 

Commercial, 2016 WL 3676108, *2 (D. Hawaii Jul. 7, 2016) (elements ofa claim under the FDCPA 

are: (1) the plaintiff is a "consumer" within the meaning of the statute, (2) the debt arises out of a 

transaction entered into for personal purposes; (3) the defendant is a "debt collector" within the 

meaning of the statute, and ( 4) the defendant violated a provision of the FDCPA). Nor is the validity 

of the underlying debt a factor in determining statutory damages, which are the primary form of relief 

requested in this case. In setting statutory damages in a class action, the FDCP A directs the court 

Mot. Class Cert. 4 n.1. Nonetheless, I must address each certification factor because federal 

courts have an independent obligation to determine whether a class action is may be maintained. 

See Fed. R. Civ. P. 23(a) (class action may be maintained "only if' numerosity, commonality, 

typicality, and adequacy are satisfied); Fed. R. Civ. P. 23(c) ("At an early practicable time after a 

person sues or is sued as a class representative, the court must determine by order whether to 

certify the action as a class action."); cf Gibson v. Local 40, Supercargoes & Checkers of Int'! 

Longshoremen's & Warehousemen's Union, 543 F.2d 1259, 1263 (9th Cir. 1976) (when the 

complaint makes clear plaintiffs seek to maintain a suit as a class action, court is obliged to rule 

on class certification even when plaintiffs make no request for such a ruling). 

5 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 5 of 12
to consider "the frequency and persistence of noncompliance by the debt collector, the nature of such 

noncompliance, the resources of the debt collector, the number of persons adversely affected, and 

the extent to which the debt collector's noncompliance was intentional." 15 U.S.C. § 1692k(b)(2). 

The validity of the underlying debt is simply not relevant except to the extent it shows bad faith on 

the part of the debt collector- for example, if the debt collector has a history of sending collection 

letters on accounts it knows are stale. See Daile Jimenez, Dirty Debts Sold Dirt Cheap, 52 Harv. J. 

on Legis. 41, 76-78 (2015) (describing the interplay between state statutes of limitations, debt 

collection activity, and the FDCPA). 

IfMcCurdy had filed this lawsuit in a bad-faith attempt to evade paying her debt, that might 

influence the adequacy analysis. But defendants have put forth no evidence of bad faith. I decline 

to question McCurdy' s motives and adequacy as a class representative on the basis of an unsupported 

accusation. 

In a declaration accompanying her Motion for Class Certification and Appointment of Class 

Counsel, McCurdy states it is "important to [her] that debt collectors like Professional Credit Service 

operate in a fair and legal manner when trying to collect debts and provide correct information to 

consumers when collecting debts." McCurdy Deel.~ 4 (Pl.' s Mot. Class Cert. Ex. B). She avers she 

has been "actively involved" in the case since it was filed and is "committed to protecting the 

interests of the class members." Id. Finally, McCurdy has obtained the representation of counsel 

with experience litigating both similar FDCP A class actions and consumer protection class actions 

generally. I conclude McCurdy's interests are aligned with the other class members', neither 

McCurdy nor her counsel has any apparent conflict of interest with other class members, and 

McCurdy and her counsel will prosecute this action vigorously on behalf of the class. I further 

6 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 6 of 12
conclude Greenwald Davidson Radbil PLLC's work in this case and experience litigating similar 

cases qualify it to be appointed as class counsel pursuant to Federal Rule of Civil Procedure 23(g)( 1 ). 

IL Superiority of Class Action 

Rule 23 (b )(3) requires a district court to determine whether "a class action is superior to other 

available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b )(3 ). 

"[T]he purpose of the superiority requirement is to assure that the class action is the most efficient 

and effective means of resol[ution]." Wolin v. Jaguar Land Rover N Am., LLC, 617 F.3d 1168, 

1175 (9th Cir. 2010) (citation and internal quotation marks omitted). "The superiority inquiry under 

Rule 23(b)(3) requires determination of whether the objectives of the particular class action 

procedure will be achieved in the particular case," which "necessarily involves a comparative 

evaluation of alternative mechanisms of dispute resolution." Hanlon v. Chrysler Corp., 150 F .3d 

1011, 1023 (9th Cir. 1998) (citation omitted). 

Plaintiff originally pleaded a broader class than the one she now seeks to certify: rather than 

seeking to represent individuals who received a letter containing the additional language in April 

2015, she sought to represent individuals who received such a letter in the year preceding the filing 

of the complaint. Com pl. ii 27. That broader class corresponded with the FDCP A's one-year statute 

of limitations. See 15 U.S.C. § 1692k(d). In discovery, plaintiff learned defendant sent letters with 

the additional language to approximately 234,000 individuals during the relevant one-year period. 

Pl.' s Mot. Class Cert. Ex. A at 4. In April 2015, defendant send the letters to 17 ,446 individuals. 

Id 

Plaintiff decided to narrow the class because of the FDCP A's provision on statutory damages 

in class actions. The law caps statutory damages at the lesser of one percent of a debt collector's net 

7 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 7 of 12
worth or $500,000. 15 U.S.C. § 1692k(a)(2)(B). The larger the class, therefore, the smaller each 

individual class member's potential recovery. See id § 1692k(a)(2)(A) (permitting statutory 

damages of up to $1,000 in an individual action). Plaintiff also points to the increased 

administrative, notice, and other costs associated with a larger class. 

Defendant's challenge to plaintiffs proposed class also arises from the statutory damages 

provision. Defendant argues certification of a smaller sub-class will open the door to a series of class 

actions, thereby undermining one of the purposes of Rule 23 - avoiding "needless multiplicity of 

actions." Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 351 (1983). Moreover, defendant 

contends certification of numerous sub-classes would permit an end-run around Congress's statutory 

damages cap. 

Neither the Ninth Circuit nor this Court has considered the interplay of Rule 23(b)(3)'s 

superiority requirement and the FDCPA's statutory damages cap. In Mace v. Van Ru Credit Corp., 

109 F.3d 338, 341 (7th Cir. 1997), however, the Seventh Circuit had to decide "whether the FDCPA 

authorizes state-wide (in contrast to nation-wide) class actions." The district court had declined to 

certify a statewide class, reasoning that "allowing state-by-state suits to proceed would nullify the 

damage cap." Id at 342. The Seventh Circuit rejected that argument. It noted that other statutes, 

including the Truth in Lending Act ("TILA"), expressly apply the statutory damages cap to "any 

class action or series of class actions arising out of the same failure to comply by the same creditor." 

Id (citing 15 U.S.C. § 1640(a)(2)(B)) (emphasis added). The court noted TILA's "reference to a 

'series of class actions' is conspicuously absent from the FDCP A." Id The court also explained the 

different purposes ofTILA and the FDCP A, positing that those differences might explain Congress's 

inclusion of the "series of class actions" limitation in TILA but not in the FDCPA. Id at 343. 

8 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 8 of 12
Because the plain text of the FDCPA does not preclude multiple class actions, the court concluded 

statewide classes were permissible. Id at 344. 

In dicta, the Seventh Circuit addressed precisely the argument advanced by defendants here: 

The defendants, however, advance a policy argument, from which the district 

court constructed a requirement for a nation-wide class. The district court reasoned 

that, ifthe damage cap of$500,000 can be applied anew to a series of state-wide (or 

otherwise limited) class actions, the damage limitation would become meaningless. 

This contention may be correct as far as it goes, although there is, of course, no way 

of telling whether such repeated class actions are possible or likely, here or generally. 

The other side of the coin is that to require a nation-wide class as the district court 

did here brings with it other problems that will be discussed later. There are other 

possible problems with the district court's reasoning. The FDCP A has a short, oneyear statute oflimitations making multiple lawsuits more difficult. Further, if a debt 

collector is sued in one state, but continues to violate the statute in another, it ought 

to be possible to challenge such continuing violations. Given the uncertainty of those 

policy considerations, there is no compelling reason to ignore the plain words of the 

statute. In any event, the case before us does not now present multiple or serial class 

actions to recover for the same misconduct. Hence, it would be premature to require 

a nation-wide class at this juncture. If and when multiple serial class actions are 

presented, it will be time enough to rule on such a pattern. At this point, there is no 

persuasive reason to require a nation-wide class. 

Mace v. Van Ru Credit Corp., 109 F.3d 338, 343-44 (7th Cir. 1997). 

Debt collectors have made the same policy argument in a handful of district court cases, with 

mixed results. Compare Guevarra v. Progressive Fin. Servs., Inc., 2006 WL 3613 7 42, * 3 (N .D. Cal. 

Nov. 30, 2006) (denying certification of a creditor-specific class due to concerns about multiple 

lawsuits, fairness, efficiency, and collusion among attorneys to "divide up the class between IKEA 

and non-IKEA creditors") and Campos v. W Dental Servs., Inc., 404 F. Supp. 2d 1164, 1172-73 

(N .D. Cal. 2005) (declining to certify a class limited to individuals residing in a particular California 

county because to do so would "lead to piecemeal litigation," a result "inconsistent with the policy 

behind both the FDCPA and class actions") with Macarz v. Transworld Sys., Inc., 193 F.R.D. 46, 

9 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 9 of 12
56 (D. Conn. 2000) (stating it would be improper to decline certification "simply because plaintiff 

seeks to limit the class to a specific geographic area") and Avila v. Van Ru Credit Corp., 1995 WL 

41425, *4 (N.D. Ill. Jan. 31, 1995) (refusing to consider policy arguments about the statutory 

damages cap because "[t]he FDCPA civil liability provision is clear and unambiguous" and "allows 

statutory damages to be imposed in a series of class actions"). 

I am persuaded by the Seventh Circuit's reasoning in Mace. In a situation actually involving 

multiple lawsuits based on the same underlying conduct, that multiplicity would be an appropriate 

factor to consider in evaluating superiority - indeed, the Federal Rules expressly direct 

consideration of any related, ongoing litigation in the superiority analysis.3 Fed. R. Civ. P. 

23(b )(3)(B). But I will not deny certification based on the mere possibility another class action will 

be filed. 

Rule 23 asks a court to consider whether "a class action" is superior to "other available 

methods" for fairly and efficiently adjudicating the controversy. Per the plain text of the rule, the 

relevant comparison is not between the proposed class action and other, hypothetical class actions; 

it is between a class action and other methods, i.e. non-class methods, taking into account "the class 

members' interest individually controlling" separate actions, "the extent and nature of any litigation 

concerning the controversy already begun by or against class members," "the desirability ... of 

concentrating the litigation" in a particular form, and "the likely difficulties in managing a class 

3 Multiplicity of lawsuits likely would affect not only the class certification analysis but 

also the calculation of any statutory damages award under the FDCP A. See Avila, 1995 WL 

41425 at * 3 n.1 ("It is questionable whether courts will repeatedly impose large measures of 

statutory damages for the same failure to comply with a provision of the FDCP A. ... [T]he 

statutory damages provision [of the FDCPA] operates not to make the plaintiffs whole (that is the 

domain of actual damages), but rather to impose a fine or penalty on the defendant in order to 

deter future violations (because actual damages in consumer actions will be difficult to prove).") 

10 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 10 of 12
action." Fed. R. Civ. P. 23(b)(3)(A)-(D). It is clear a class action is the superior vehicle in view of 

these considerations. This is a case based solely on the text of identical letters, and in which 

individual damages for a given class member likely would be quite low, so class members have a 

limited interest in controlling individual actions. The parties have identified no ongoing, related 

litigation. Because of the nature of the claim, it does not appear any particular forum would be the 

best place to concentrate the litigation - which means this Court is as good a forum as any. And 

any difficulties managing the class action are far outweighed by the difficulties that would be 

involved in overseeing even a fraction of the 17,446 potential class members' individual lawsuits. 

See Avila, 1995 WL 41425 at *7 ("[A] class action remedy for vindicating the rights of thousands 

of consumers is a more efficient use of judicial resources than forcing those consumers to each file 

individual actions for statutory damages and assert offensive collateral estoppel to establish liablity 

against [the debt collector].") A class action is the superior vehicle for adjudicating the class 

members' claims. 

III. Remaining Factors 

This case also satisfies the remaining requirements of Rule 23(a) and Rule 23(b)(3). First, 

the proposed class must be "so numerous that joinder of all members is impractical." Fed. R. Civ. 

P. 23(a)(l). The proposed class here, with its more than 17,000 members, easily satisfies this 

requirement. See Wilcox, 97 F.R.D. at 443 .("[A]s a rough rule of thumb, approximately forty 

members is sufficient to satisfy the numerosity requirement.") Second, there must be "questions of 

law or fact common to the class." Fed. R. Civ. P. 23(a)(2). Here, commonality is satisfied because 

each member of the proposed class received a letter containing the additional language. Third, "the 

claims or defenses of the representative parties [must be] typical of the claims or defenses of the 

11 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 11 of 12
class." Fed. R. Civ. P. 23(a)(3). The allegations of the complaint concern only the additional 

language. Accordingly, the typicality requirement is satisfied. Finally, "questions or law or fact 

common to class members [must] predominate over any questions affecting only individual 

members." Fed. R. Civ. P. 23(b)(3). Here, it appears there are two main questions oflaw or fact: 

(1) did the additional language violate the FDCPA? and (2) what level of statutory damages is 

appropriate? Predominance is satisfied because both questions are common to the class. 

CONCLUSION 

Plaintiffs Motion for Class Certification and Appoint of Class Counsel (doc. 28) is 

GRANTED as follows: 

1. The following class is certified: 

(a) All persons with an address within the United States, (b) to whom Professional 

Credit Service sent an initial written communication between April 1, 2015 and April 

30, 2015, (c) that stated: "If you dispute any account referenced in this letter, please 

send all information regarding the dispute to P.O. Box 70127, Springfield, OR 

97475," (d) in connection with the collection of a consumer debt; 

2. Plaintiff Jennifer McCurdy is appointed as Class Representative; and 

3. Greenwald Davidson Radbil PLLC is appointed as Class Counsel. 

IT IS SO ORDERED. 

eP CVob.t~ Dated this l1.. day of Septetfi5'er 2016. 

AnnAiken 

United States District Judge 

12 - OPINION AND ORDER 

Case 6:15-cv-01498-AA Document 37 Filed 10/03/16 Page 12 of 12