Tuesday, April 19, 2011

Southern District Rejects Proposition that Oral Statement Based Claims Are Uncertifiable: Thomasson v. GC Servs., Ltd. P’ship

On February 4, 2011, Southern District Judge, John A. Houston, entered an order certifying Fair Debt Collection Practices Act claims in Thomasson v. GC Servs., Ltd. P'ship, 2011 U.S. Dist. LEXIS 40445 (S.D. Cal. Feb. 4, 2011) based on a debt collector’s alleged practice of not providing disclosures the call was being monitored until after a consumer had disclosed contact and identifying information to defendant's representative. The Court’s opinion is interesting, as the plaintiff’s claims were certified based on deviations from defendant's policy to provide disclosures up-front. The defendant maintained that this rendered the claim uncertifiable because it necessarily predicated the claim upon the unique content of each individual class member’s conversion. The Court disagreed, finding that the uniform lack of disclosure, not the content of the conversation was the proper focus of the substantive claim. See id., at 10-14.  According to the Court, the fact that tape recordings of each conversation would have to be reviewed individually related to determining class membership, a situation which does not preclude class treatment:
Plaintiffs' class definition may require a threshold inquiry to determine class membership. It clearly requires an individualized inquiry into the content of the telephone calls to determine whether the advisement was given and, if so, when it was given. However, this limited, basic inquiry does not make class certification "administratively infeasible." See Spencer, 2006 U.S. Dist. LEXIS 98565, 2006 WL 6500597 ("[A] proposed class must be clearly defined so that it is administratively feasible for a court to determine whether a particular individual is a member"). Accordingly, the Court finds the class definition is adequately defined and clearly ascertainable.
See Thomasson, 2011 U.S. Dist. LEXIS 40445, at 9.

No comments:

Post a Comment