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Justin Freid, On Behalf of Himself and All Others Similarly Situated v. National Action Financial Services

April 20, 2011


The opinion of the court was delivered by: Chesler, District Judge



This matter comes before the Court on the motion for class certification filed by Plaintiff Justin Freid. Plaintiff seeks certification pursuant to Federal Rule of Civil Procedure 23(b)(3). The Court has considered the papers filed by the parties and has opted to rule on the motion without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons discussed below, the Court will deny the motion.


Plaintiffs filed this putative class action suit on or about June 4, 2010. The Complaint alleges claims for violation of the Fair Debt Collection Practices Act ("FDCPA.") The Complaint alleges that Plaintiff is a consumer and that Defendant National Action Financial Services, Inc. ("NAFS") is a debt collecting company. The Complaint asserts five claims regarding FDCPA violations: 1) Defendant's employees failed to adequately disclose their identity when placing telephone calls to Plaintiff; 2) Defendant's employees used deceptive means by conveying a false sense of urgency in voicemail messages; 3) Defendant's employees failed to adequately disclose their identity in voicemail messages left for Plaintiff; 4) Defendant's employees used unfair or unconscionable means in leaving ominous voicemail messages; and 5) Defendant's employees engaged in written and oral communication with third parties without prior consent of the consumer. Plaintiff now moves for class certification, pursuant to Federal Rule of Civil Procedure 23(b)(3), and appointment of class counsel.


To obtain certification, Plaintiffs must demonstrate that each of the putative subclasses meets the threshold requirements of Rule 23(a) as well as one of the three Rule 23(b) categories under which they wish to proceed as a class. In re Prudential Ins. Co. of Am. Sales Practices Litig. Agent Actions, 148 F.3d 283, 308-09 (3d Cir. 1998). In moving for class certification, a movant has the burden of proving that all requirements of Rule 23 are met.General Telephone Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982). In this case, Plaintiffs have sought certification of three subclasses under Rule 23(b)(3), which permits certification when "questions of law or fact common to class members predominate over any questions affecting only individual members" and when "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3). The Third Circuit recently reiterated the well-established standard for certification, holding as follows:

Every putative class must satisfy the four requirements of Rule 23(a): (1) the class must be "so numerous that joinder of all members is impracticable" (numerosity);

(2) there must be "questions of law or fact common to the class" (commonality);

(3) "the claims or defenses of the representative parties" must be "typical of the claims or defenses of the class" (typicality); and (4) the named plaintiffs must "fairly and adequately protect the interests of the class" (adequacy of representation, or simply adequacy). Fed.R.Civ.P. 23(a)(1)-(4). If those requirements are met, a district court must then find that the class fits within one of the three categories of class actions in Rule 23(b).

Drennan v. PNC Bank, NA (In re Comty. Bank of N. Va. & Guaranty Nat'l Bank of Tallahassee Second Mortg. Loan Litig.), 622 F.3d 275 (3d Cir. Pa. 2010).

In Drennan, the Third Circuit proceeded to specify that when certification under Rule 23(b)(3) was sought, the district court could not certify a class unless two additional requirements had been met: "(i) common questions of law or fact predominate (predominance), and (ii) the class action is the superior method for adjudication (superiority)." Id. Predominance is similar to Rule 23(a)(2)'s requirement of commonality in that both are concerned with ensuring that the putative class presents common questions of law of fact. Indeed, where Rule 23(b)(3) certification is sought, the commonality inquiry is subsumed into the predominance analysis. Danvers Motor Co. v. Ford Motor Co., 543 F.3d 141, 148 (3d Cir. 2008). Predominance, however, imposes a "far more demanding standard," as it "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 266 (3d Cir. 2009) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)). The Third Circuit has emphasized the stringent nature of the predominance requirement, explaining that it may be satisfied only when "common issues predominate over issues affecting only individual class members." Id.(quoting In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 527-28 (3d Cir. 2004)). Rule 23(b)(3)'s superiority requirement focuses the Court on manageability concerns. It must consider whether a trial of the claims by representation would pose difficulties such that some other method of adjudication would be superior to class certification. In re Cmty. Bank of N. Va., 418 F.3d 277, 309 (3d Cir. 2005). The rule lists four factors relevant to a court's evaluation of predominance and superiority. They are:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in ...

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