United States: Third Circuit Ascertainability Requirement Satisfied In FDCPA Class Against Law Firm

Last Updated: November 22 2018
Article by Gary M. Pappas and Raina T. Shipman

Our prior blogs have discussed the Third Circuit's "rigorous" ascertainability requirement for 23(b)(3) classes here and here. We have also explored how district courts in the Circuit, such as the Eastern District of Pennsylvania, have denied certification in reliance on that heightened standard. A recent E.D. Pa. opinion demonstrates that all is not lost for putative Third Circuit class actions when the proposed class is readily ascertainable based on objective criteria and administratively feasible mechanisms.

Plaintiff received a debt collection letter from the law firm Weltman, Weinberg & Reis Co., LPA printed on its firm letterhead with "Attorneys at Law" beneath the firm name. Plaintiff learned later that no attorney at the firm had reviewed her account prior sending the letter, so she sued the firm alleging the letter violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et. seq., by using false representations or deceptive means to collect a debt. Plaintiff sought to represent a class of consumers within the Third Circuit who received collection letters on the defendant law firm's letterhead within a specified time period.

Discovery revealed the law firm had used the same collection letter template for both its commercial and consumer debt practice groups and had mailed 18,808 such collection letters. Defendant's primary argument against certification was that plaintiff's proposed class was not ascertainable because the potential class members included individuals whose loans were not for personal use as required by the FDCPA. According to defendant, identifying the "proposed class require[ed] an in-depth analysis of each purported class member's individual circumstances." Defendant was so enamored with the ascertainability argument that it asserted it to dispute each Rule 23(a) and (b)(3) element.

The court applied the Third Circuit's precedent that requires the putative class representative to demonstrate: (1) class members can be identified using objective criteria; and (2) a reliable and administratively feasible mechanism exists for determining whether putative class members fall within the class definition. The court emphasized that, "at a bottom, the plaintiff must show how potential class members can be identified in an accurate and efficient manner." The court described this as a "narrow" inquiry.

In rejecting defendant's ascertainability arguments – what it described as defendant's "common refrain" – the court relied extensively on the testimony of the law firm's corporate representative. She had testified that the firm had the ability to identify those letters originating from the consumer debt practice group and that the firm's standard operating procedure was to import specific data unique to the debtor and debt involved directly from the underlying account into each letter. The court reasoned, therefore, that this testimony provided a reliable and feasible mechanism for identifying class members either by the consumer collection practice group designation or, if that was still too broad, by identifying (1) if an individual was obligated on the debt; (2) the identity of the original creditor; and (3) the type of debt such as credit card, medical, or student loan.

Gibbons v. Weltman, Weinberg & Reis Co., LPA, No. 17-1851 (E.D. Pa. Oct. 21, 2018).

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