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THOMAS v. NCO FINANCIAL SYSTEMS

March 31, 2004.

CAROLYN THOMAS, Individually and on Behalf of All Persons Similarly Situated, Plaintiffs
v.
NCO FINANCIAL SYSTEMS, INC., Defendant



The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge

OPINION

The matter is before the court on the Joint Motion Resubmitting Joint Motion for Certification of Settlement Class and Preliminary Approval of Settlement and Notice to the Class ("Joint Motion") filed November 21, 2003. Because we conclude that the method of communication with the proposed class presented by the parties is the best practicable under Page 2 the circumstances, we grant the motion and certify the class for settlement purposes.

  Procedural History

  The within civil action was initiated by a two-count Complaint filed October 10, 2000. Count one claims a violation of the Fair Debt Collection Practices Act,

  15 U.S.C. § 1692-1692o. Count two avers a violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681-1681v. The action is before the court on federal question jurisdiction. See 15 U.S.C. § 1681p; 28 U.S.C. § 1331. Venue is appropriate because defendant resides in Montgomery County, Pennsylvania. See 28 U.S.C. § 118, 1391. Plaintiff has made a jury demand.

  Plaintiff seeks class certification. See Fed.R.Civ.P. 23. For purposes of settlement,*fn1 the parties agree that the proposed class may be certified. The parties have previously sought court approval for class certification and settlement. Page 3

  The issues presented in the parties' motion were first presented to our former colleague United States District Judge Jay C. Waldman as a Joint Motion for Certification of Settlement Class and Preliminary Approval of Settlement and Notice to Class filed March 21, 2002. On August 1, 2002 Judge Waldman denied the motion citing deficiencies in the evidence supporting the appointment of class counsel and supporting the parties' contention that publication notice was the best notice possible under the circumstances presented.*fn2

  In his August 1, 2002 Memorandum and Order, Judge

  Waldman made a number of legal determinations pertinent to our analysis. Initially, Judge Waldman concluded that the numerosity requirement was satisfied because joinder of all the proposed class members would be impracticable. Next, Judge Waldman held that the commonality requirement was met because common issues of fact and law within the putative class predominate over all other issues presented therein.

  In addition, Judge Waldman held that the typicality requirement was satisfied because the claims of plaintiff, as class representative, arise from facts and circumstances that typify the other putative class members. Finally, Judge Page 4 Waldman evaluated the proposed settlement agreement and determined that it was fair, acceptable, and within the range of settlements that the court would approve. We conclude that Judge Waldman's findings and conclusions are the law of the case and adopt his conclusions and reasoning. See Hamilton v. Leavy, 322 F.3d 776, 786-787 (3d Cir. 2003).

  However, in his Memorandum and Order, Judge Waldman reserved judgment in three areas. Initially, the parties neglected to offer any evidence concerning the qualifications of class counsel. Accordingly, Judge Waldman found that he could not determine the adequacy of counsel. Next, the parties neglected to offer any evidence of any pending overlapping actions. Consequently, Judge Waldman concluded that he could not declare that disposition of the facts and circumstances presented herein by a class action was a superior method of resolving this case. Finally, Judge Waldman found that the parties did not submit sufficient evidence to support the conclusion that publication notice by two notices in a two-week period in a single publication was the best possible method of notifying the class.

  Therefore, Judge Waldman denied the initial motion because a determination regarding the manageability of the class action could not be made at that time. Because of these Page 5 deficiencies, Judge Waldman denied the parties' motion without prejudice for the parties to resubmit a motion with additional, appropriate support.

  On August 30, 2002 the parties resubmitted their motion for class certification. In that motion, the parties sought to cure the defects identified by Judge Waldman. On August 11, 2003 the undersigned held oral argument on the parties' motion. On August 13, 2003 the undersigned permitted the parties to file supplemental memoranda in support of their motion.

  By Order and Opinion dated October 21, 2003,*fn3 the undersigned denied the parties' renewed motion. Specifically, we concluded that class counsel was adequate; that, if the class could be properly noticed, the superiority requirement was met; and that individual notice was not the best practicable notice under the circumstances. However, we denied the parties' motion because were unable to determine whether the ...


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