Denial of Class Certification for “Gerrymandering” of Class Representatives

May 6, 2013 in Civil Procedure, FDCPA by Brad Council

On March 21, 2013, the United States District Court for Minnesota issued an order denying class certification in the case of Wenig v. Messerli & Kramer, PA because the class was too narrow and apparently defined as such to circumvent the limits on damage awards in class actions under the Fair Debt Collection Practices Act (“FDCPA”).

Plaintiff, Sandra L. Wenig filed suit against defendants, Messerli & Kramer P.A., claiming that the defendant’s form letters violated various provisions of the FDCPA.  Ms. Wenig sought to certify a class under Rule 23(b)(3), which provides that a class action may be maintained if the court finds that the questions of law or fact common to class members predominate over any questions affection only individual members, and that class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

The Defendant’s first collection letter was dated September 28, 2011.  Defendant thereafter sent out additional letters including a third collection letter which was dated October 24, 2011 and entitled FINAL NOTICE.  Ms. Wenig alleged that the defendants sent out first and third collection letters within a 30 day verification period and that the third letter overshadowed the disclosure of her rights in the first collection letter. Ms. Wenig alleged that the third letter communicated that her validation rights had expired.

The Plaintiff proposed a class which only included those Minnesota individuals who were also sent a first and third letter within the same 30 day period, but further limited the class to only include those who lived in HennepinCounty where the original creditor was Capital One.

To certify a class under Rule 23(b)(3), the Court must find that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” The court found the class proposed by Plaintiff to be preposterous and without justification. The court analogized that a class of residence whose last name began with the letter “R” or persons who owned cats, would be as compelling as the class proposed by the Plaintiff.

The court stated that there were at least 30,000 Minnesotans who may have received Messerli’s third letter within 30 days of receiving the first letter, but found no justification for limiting the class to those who lived in a specific county or owed a specific creditor.  The court stated that essentially the same letter was sent to each individual regardless of the creditor or county of residence.  Therefore, the court called the limitations of the class “gerrymandering” and presumed that it was done for the sole purpose of avoiding the damages limits placed up on class actions by the FDCPA.

The court determined that the class should include all of the residence who received the letters regardless of the creditor or the county in which they live.  The court denied the Plaintiff’s motion for class certification finding that a class action that resolves only a fraction of the possible claims is neither a fair nor efficient way to adjudicate the controversy.

The Full Text of the Opinion May be Found at: http://scholar.google.com/scholar_case?case=8169208652499160766&q

Many thanks to Sonya Gaines for her contributions to this article.  Sonya is a paralegal with Slovin & Associates Co., L.P.A.