United States District Court, E.D. Pennsylvania
SUSAN EBNER, individually and on behalf of all others similarly situated, Plaintiff,
MERCHANTS & MEDICAL CREDIT CORP., et al., Defendant .
J. PAPPERT, J.
Susan Ebner, through her proposed class counsel, and
Defendant Merchants & Medical Credit Corporation
(“MMCC”), have negotiated and agreed to a
settlement of this class action. On June 15, 2016 the Court
preliminarily approved that settlement. (ECF No. 21.) Class
counsel has moved for final approval of the settlement and
for attorneys' fees and costs. (ECF No. 32.) For the
reasons that follow, the Court grants the motion.
mailed Ebner debt collection letters in June of 2014 in
glassine window envelopes. (Compl. ¶¶ 17, 24.) Her
account number was visible through the window. (Id.
¶¶ 20, 26.) Ebner filed a class action lawsuit on
December 4, 2014, alleging that by disclosing her account
number on the face of the envelope, MMCC violated 15 U.S.C.
§ 1692f(8) of the Fair Debt Collection Practices Act
(“FDCPA”). (ECF No. 1.) Section 1692(f)(8)
provides that “using any language or symbol, other than
the debt collector's address, on any envelope when
communicating with a consumer by use of the mails” is
an “unfair or unconscionable means to collect or
attempt to collect any debt.” 15 U.S.C. §
1692f(8). In Douglass v. Convergent Outsourcing, 765
F.3d 299 (3d Cir. 2014), the Third Circuit Court of Appeals
explained that the “plain language of § 1692f(8)
does not permit [a debt collector's] envelope to display
an account number. Id. at 303.
March 21, 2016 Ebner filed a motion for approval of a class
settlement and class certification. (ECF No. 17.) The Court
held a hearing on June 14, 2016 and entered an order the next
day preliminarily approving the class action settlement and
directing notice to the class. (ECF No. 21.) The proposed
class was defined as “[a]ll persons located in (i) the
Commonwealth of Pennsylvania, (ii) the State of New Jersey,
or (iii) the State of Delaware according to their last known
address . . . from December 4, 2013 through August 1, 2015 .
. . who received one or more letters from MMCC seeking to
collect a consumer debt for which the . . . account number
was visible through the glassine window of the
envelope.” (Id. at 2.)
September 15, 2016 MMCC moved to continue the final approval
hearing and amend the Court's preliminary order approving
the class action settlement. (ECF No. 25.) MMCC's motion
explained that the number of settlement class members was
smaller than initially thought at the time of the Court's
preliminary order. MMCC asked for more time to meet the
deadlines in the Court's order. Plaintiffs did not oppose
this motion. The Court granted MMCC's motion on September
30, 2016. (ECF No. 28.) On December 29, 2016 Ebner filed a
motion for final approval of settlement. (ECF No. 31.) The
Court held a final approval hearing on January 12, 2017. (ECF
Rule of Civil Procedure 23(e) requires court approval of
class action settlements. Fed.R.Civ.P. 23(e)(2). Approval is
appropriate “only after a hearing and on finding that
it is fair, reasonable, and adequate.” Id. The
Court must (1) determine if the requirements for class
certification under Rule 23(a) and (b) are satisfied; (2)
assess whether notice to proposed class was adequate; and (3)
evaluate if the proposed settlement is fair under Rule 23(e).
See In re Nat'l Football League Players Concussion
Injury Litig., 775 F.3d 570, 581 (3d Cir. 2014).
Whether Class Certification is Proper
23(a) requires Plaintiffs to demonstrate that: “(1) the
class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common
to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses
of the class; and (4) the representative parties will fairly
and adequately protect the interests of the class.” Fed
R. Civ. P. 23(a). Rule 23(b)(3), under which Plaintiffs seek
class certification, requires that “questions of law or
fact common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed.R.Civ.P.
23(b)(3). For the reasons that follow, the proposed class may
be certified because the Plaintiffs have demonstrated
compliance with Rule 23(a) and 23(b)(3)'s requirements.
Rule 23(a) Factors
23(a)(1) requires that the class be “so numerous that
joinder of all members is impracticable.” Fed.R.Civ.P.
23(a)(1). There is no minimum number of plaintiffs required
to satisfy this requirement; a proposed class exceeding 40
members is sufficient. Stewart v. Abraham, 275 F.3d
220, 226-27 (3d Cir. 2001). Undisputed records in this case
indicate that MMCC sent similar letters to approximately 4,
802 individuals between December 3, 2013 and August 1, 2015.
(Pl.'s Mot., at 7, ECF No. 31-1.)
23(a)(2) mandates the showing of “questions of law or
fact common to the class.” Fed.R.Civ.P. 23(a)(2). This
element requires that plaintiffs “share at least one
question of fact or law with the grievances of the
prospective class.” In re Warfarin Sodium Antitrust
Litig., 391 F.3d 516, 527-28 (3d Cir. 2004).
“Generally, courts have held that the commonality
requirement is satisfied in FDCPA actions when the defendants
have engaged in standardized conduct towards members of the
proposed class by mailing them allegedly illegal form letters
or documents.” Good v. Nationwide Credit,
Inc., 314 F.R.D. 141, 151-52 (E.D. Pa. 2016). Here, MMC
engaged in standardized conduct by sending similar letters to
all members of the proposed class. (Pl.'s Mot., at 8.)
The common question of fact is whether account numbers were
visible through envelope windows. The common question of law
is whether MMCC's conduct violates § 1692f(8).