Debt Collectors Improperly Calling Third Parties and Misrepresenting Purpose

April 12th, 2009 by admin


IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MALIK HODGE, on behalf of himself and all others similarly situated

Plaintiff,

v.

PREMIER CREDIT OF NORTH AMERICA, LLC

Defendant.

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Civil Action No. 09-1644

Class Action

______________________________________________________________________________

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S PARTIAL MOTION TO DISMISS OR STRIKE THE CLASS ACTION ALLEGATIONS OF THE AMENDED COMPLAINT

______________________________________________________________________________

FRANCIS & MAILMAN, P.C.

JAMES A. FRANCIS

GREGORY GORSKI

Land Title Building, 19th Floor

100 South Broad Street

Philadelphia, PA 19110

(215) 735-8600

TABLE OF CONTENTS

PAGE

I.PRELIMINARY STATEMENT ……………………………………………………………………1

II.BACKGROUND …………………………………………………………………………………………..3

A.Defendant Has No Permissible Basis To Call A Non-Debtor

And Misrepresent The Reason For Its Call To Coerce Private

Information About A Purported Debtor …………………………………………………………3

B.Defendant Uses A Standardized Telephone Call Script To

Deceive Third Parties ………………………………………………………………………………….4

C.Plaintiff’s Amended Complaint Includes All The Necessary

Elements To Adequately Allege A Class Action …………………………………………….5

III.LEGAL STANDARD …………………………………………………………………………………….6

A.A Well Pled Complaint Need Only Allege Claims That Are

Not “Speculative” To Defeat A Motion To Dismiss Pursuant

To Rule 12(b)(6) 6

B.The Legal Standard When Considering A Motion To Dismiss

Class Action Allegations Pursuant to Rule 12(b)(6) Does Not Change ……………..8

IV.ARGUMENT ……………………………………………………………………………………………….10

I.  PLAINTIFF HAS ADEQUATELY PLED A PLAUSIBLE CLASS ACTION CLAIM AGAINST DEFENDANT

10

A. Plaintiff Amended Complaint Alleges A Class Of Purported Debtors Whose Rights Under The FDCPA Were Violated 10

B. Class Actions Alleging Harm Caused By The Use Of

Standardized Scripts Are Certifiable 12

II.  DEFENDANT’S ARGUMENTS IN OPPOSITION TO CLASS CERTIFICATION ARE PREMATURE 13

V.CONCLUSION ……………………………………………………………………………………………14

TABLE OF AUTHORITIES

PAGE

Ashcroft v. Iqbal,

129 S. Ct. 937 (2009) 8

Baas v. Dollar Tree Stores, Inc.,

2007 WL 2462150 (N.D.Cal. 2007)13

Beck v. Maximus,

457 F.3D 291(3d. Cir. 2006) 1

Bell Atlantic Corp. v. Twombly,

550 U.S. 554 (2007) 6, 7, 8

Borough of Morrisville v. Delaware River Basin Commission,

382 F. Supp. 543 (E.D.Pa. 1974) 8

Broussard v. Meineke Discount Muffler Shops, Inc.,

155 F.3d 331 (4th Cir. 1998) 12

Buck v. Hampton Twp. Sch. Dist.,

452 F.3d 256 (3d Cir. 2006) 7

Chedwick v. UPMC,

619 F. Supp.2d 172 (W.D.Pa. 2007) 13

Clark v. McDonald’s Corp.,

213 F.R.D. 198 (D.N.J. 2003) 9

Clark v. State Farm Mut. Auto. Ins. Co.,

231 F.R.D. 405 (C.D.Cal. 2005) 14

Costlow v. United States,

552 F.2d 560 (3d Cir. 1977) 7

General Tel. Co. of Southwest v. Falcon,

457 U.S. 147 (1982) 8, 9, 11

Grainger v. State Sec. Life Ins. Co.,

547 F.2d 303 (5th Cir. 1977) 12

Gutierrez v. Johnson & Johnson, Inc.,

2002 U.S. Dist. LEXIS 15418 (D.N.J. Aug. 12, 2002) 9

Huff v. N. D. Cass Co. of Ala.,

485 F.2d 710 (5th Cir. 1973) 8, 9

In re LifeUSA Holding Inc.,

242 F.3d 136 (3d Cir. 2001) 12

In re The Prudential Ins. Co. of Am. Sales Practices Litig.,

962 F. Supp. 450 (D.N.J.1997) 12

Karan v. Nabisco, Inc.,

78 F.R.D. 388 (W.D.Pa. 1978) 9, 10

King v. Gulf Oil Co.,

581 F.2d 1184 (5th Cir. 1978) 8

Korman v. Walking Co.,

503 F. Supp.2d 755 (E.D.Pa. 2007) 13, 14

Miller v. Beneficial Management Corp.,

977 F.2d 834 (3d Cir. 1992) 7

Moore v. PaineWebber, Inc.,

306 F.3d 1247 (2d Cir. 2002) 12

Neitzke v. Williams,

490 U.S. 319 (1989) 7

Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

259 F.3d 154 (3d Cir. 2001) 8, 9

Palladino ex rel. U.S. v. VNA of Southern New Jersey, Inc.,

68 F. Supp.2d 455 (D.N.J. 1999) 10

Phillips v. County of Allegheny,

515 F.3d 224 (3d Cir. 2008) 7, 8

Pinker v. Roche Holdings Ltd.,

292 F.3d 361 (3d Cir. 2002) 7

Sames v. Gable,

732 F.2d 49 (3d Cir. 1984) 7

Satterwhite v. City of Greenville, Tex.,

578 F.2d 987 (5th Cir. 1978) 9

Scheuer v. Rhodes,

416 U.S. 232 (1974) 7, 8

Shannon v. Hess Oil Virgin Islands Corp.,

96 F.R.D. 236 (D.V.I. 1982) 11

Smith v. Weeks,

2002 WL 31750203 (E.D. Pa. Dec. 9, 2002) 7

South Broward Hosp. Dist. v. MedQuist Inc.,

516 F. Supp.2d 370 (D.N.J. 2007) 9

Swierkiewicz v. Sorema N. A.,

534 U.S. 506 (2002) 6

Umland v. PLANCO Financial Services, Inc.,

542 F.3d 59 (3d Cir. 2008) 7

Unger v. National Residents Matching Program,

928 F.2d 1392 (3d Cir. 1991) 10

Urban v. Breier,

401 F. Supp. 706 (D.Wis. 1975) 11

Weathers v. Peters Realty Corp.,

499 F.2d 1197 (6th Cir. 1974) 8

Williams v. Empire Funding Corp.,

227 F.R.D. 362 (E.D.Pa. 2005) 12

Yaffe v. Powers,

454 F.2d 1362 (1st Cir.1972) 10

STATUTES

15 U.S.C. §1692 1, 3

15 U.S.C. §1692b 1, 3

15 U.S.C. §1692d 4

15 U.S.C. §1692e 3, 4

15 U.S.C. §1692f 4

OTHER AUTHORITY

Wright & Miller, 7A FEDERAL PRACTICE & PROCEDURE. §1785 9, 11

I.PRELIMINARY STATEMENT

Defendant’s Motion to Dismiss (the “Motion”) the Class Allegations in Plaintiff’s Amended Complaint should be denied for the simple reason that Plaintiff has sufficiently pled a plausible class action claim for violation of the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”).  The class claim arises from Defendant’s use of a deceptive standardized script whenever its representatives make collection calls to third-party non-debtors.  Among other things, the FDCPA prohibits debt collectors from contacting third parties about a consumer’s debt and communicating information about that consumer’s debt to those third parties, except in several specifically delineated instances.  See, e.g., 15 U.S.C. §1692b & 1692c(b); see also Beck v. Maximus, 457 F.3d 291, 294-295 (3d. Cir. 2006)(discussing limitations on contacts with third parties and non-debtors).

Plaintiff’s Amended Complaint alleges that Defendant’s collector employees, as matter of policy and practice, telephone third parties by impersonating a home mortgage company or other fiduciary loan provider.  By surreptitiously calling in connection with a fictitious credit application, these employees seek to elicit improper information about the consumer debtor’s whereabouts and/or his or her financial condition. Class members (the purported debtors) are harmed by such a practice because its results in disclosure of their personal financial information and data, and coerces the contacted third parties into providing private information about the class member that is prohibited by the FDCPA.  A class action of this kind involving uniform or standardize practices, particularly scripts, is eminently certifiable even when the practice involves oral communications as in this case.

Defendant’s Motion does not provide any proper basis for dismissal of the Amended Complaint. The Motion at best does nothing more than point out possible factual disputes between the parties. The existence of a material issue of fact, however, is not grounds to obtain a dismissal on the pleadings.

Defendant’s Motion is also procedurally defective. Much of Defendant’s Motion is dedicated to arguments opposing class certification under the guile of a motion to dismiss. The propriety of a class claim is typically addressed once Plaintiff has been afforded a sufficient amount of class related discovery and files a motion for class certification.  It is for this reason that dismissal of class claims on the pleadings alone is extraordinarily rare. Furthermore, Defendant’s attempt to sneak in the backdoor by arguing class certification points on a motion to dismiss has been roundly criticized by the courts.

II.BACKGROUND

A.Defendant Has No Permissible Basis To Call A Non-Debtor and Misrepresent The Reason For Its Call To Coerce Private Information About A Purported Debtor.

Debt collectors such as Defendant often do not follow the traditional practice of filing a collection lawsuit to obtain a judgment against a purported debtor in Court and then executing on the judgment in order to collect a debt. Debt collectors instead often employ strategies that effectively harass purported debtors into payment.

Once such tactic is calling people who do not owe any debts but who may know the purported debtor. Debt collectors will purchase contact information about the purported debtor’s family, friends, neighbors and co-workers and then make calls to these third-parties to learn more about the debtor and/or pressure him or her into paying the debt. The existence of such practices led Congress to place strict limitations on third-party collection calls in connection with the collection of a consumer debt. See, e.g., 15 U.S.C. §§1692b & 1692c(b).

In this case, the telephone calls in question involve Defendant’s representatives calling third-party non-debtors and misrepresenting that the third-party was named as a reference in connection with a fictitious loan in order to deceive the third-party into providing private information about the purported debtor.  The described conduct is unquestionably prohibited by numerous FDCPA provisions because:

•Defendant misrepresented its identity;

• Defendant contacted a third-party to obtain information unrelated to the purported debtor’s location; and

•Falsely represented that its telephone call was related to a fictitious loan or credit application.

See 15 U.S.C. §§1692(b)(1) & (e)(2)(A).

In addition to these specific violations of the FDCPA, the described conduct also violates general prescriptions in the FDCPA against:

•“engaging in conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt; ”

•using “false representations or deceptive means to collect or attempt to collect any debt or to obtain information” and

• using “unfair or unconscionable means to collect or attempt to collect a debt.”

Id. at §1692(d), (e)(10) & (f).  Accordingly, Defendant has absolutely no permissible basis to engage in the type of conduct described in Plaintiff’s Amended Complaint.

B.Defendant Uses A Standardized Telephone Call Script To Deceive Third-Parties.

In addition to deceiving, harassing and threatening Plaintiff personally,  Defendant took aim at Plaintiff’s father, a third-party non-debtor.  Defendant’s representative contacted Plaintiff’s father, and misrepresented that she was calling from a home mortgage company in order to obtain information about Plaintiff in order to process a home loan. Defendant’s representative further misrepresented to Plaintiff’s father that Plaintiff would be able to obtain the fictitious loan faster if Plaintiff’s father would cooperate and provide additional information about Plaintiff.  Defendant’s representative then began asking Plaintiff’s father questions unrelated to determining the location of Plaintiff in order to surreptitiously gain further private information about Plaintiff.   See Am. Compl., at ¶ 10.

Defendant’s was using a standardized “script” in connection with the call to Plaintiff’s father. The script is used as a matter of course whenever a representative contacts a third-party. Defendant dubs the script described above as the “Reference Script.”  See Ex. A., Reference Script.    As can be gleaned from reviewing this standardized script attached, the script is crafted to deceive any third-party called into giving private information about consumers in violation of the FDCPA.  The script achieves it goal by misrepresenting to the third-parties that they had been named as a reference in connection with a credit application just at the representative did to Plaintiff’s father.

C.Plaintiff’s Amended Complaint  Includes All The Necessary Elements To Adequately Allege A Class Action.

Plaintiff specifically alleged in the Amended Complaint the facts surrounding the misleading and deceptive call that was placed to Plaintiff’s father using the standardized script:

Paragraph 10 – On or about March 6, 2009, Defendant then contacted Plaintiff’s father wherein Defendant’s representative misrepresented that she was calling from a home mortgage company in order to obtain information about Plaintiff in order to process a home loan. Defendant’s representative further misrepresented to Plaintiff’s father that Plaintiff would be able to obtain the fictitious loan faster if Plaintiff’s father would cooperate and provide additional information about Plaintiff. Defendant’s representative then began asking Plaintiff’s father questions, inter alia, about where he worked, how long he had been working, his marital status, and other personal questions unrelated to determining the location of Plaintiff.

See Am. Compl., at ¶ 10.

Plaintiff further specifically alleged that Defendant was using a standardized script to deceive third parties:

Paragraph 9 – Defendant also, as a matter of policy and practice, contacts third-parties whose identities are obtained from skip tracing efforts and uses a script which deceives the third-parties into giving unauthorized information about consumers by misrepresenting to the third-parties that they had been named as a reference in connection with a credit application.

See id. at ¶ 9.

Applying these factual allegations which includes the use of a standardized script in connection with telephone calls to third-parties, Plaintiff provides a plausible statement of the Class’ composition:

All persons in the United States of America for whom Defendant, in attempting to collect an alleged debt from them, contacted a third-party starting one year prior to the filing of this action and through the date of judgment herein.

See id. at ¶ 19.  Plaintiff further specifically pled all the elements required under Rule 23(a) and (b) for a class action including numerosity, commonality, typicality, adequacy and predominance. See id. at ¶¶ 20-27.  Accordingly, Plaintiff has adequately set forth plausible class action allegations and deserves the opportunity to conduct discovery on the claim.

III.LEGAL STANDARD

A.A Well Pled Complaint Need Only Allege Claims That Are Not “Speculative” To Defeat A Motion To Dismiss Pursuant To Rule 12(b)(6).

Universally recognized as a notice pleading standard, Rule 8(a)(2) of the Federal Rules of Civil Procedure calls for a plaintiff filing a complaint in the federal courts to simply provide “a short and plain statement of the claim showing that the pleader is entitled to relief.”  See Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (“A complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.”) See also Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002) (calling Rule 8 a “simplified notice pleading standard.”)

When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).    “[T]he threshold level to be met by a plaintiff to withstand a motion to dismiss is very low.”  Smith v. Weeks, 2002 WL 31750203, at *5 (E.D. Pa. Dec. 9, 2002)

The Third Circuit after Twombly has consistently held that in considering a motion to dismiss pursuant to Rule 12(b)(6) the Court shall:

‘accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff’ and  ‘determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.’

Umland v. PLANCO Financial Services, Inc., 542 F.3d 59, 64 (3d Cir. 2008) (quoting Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) and Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)).  See also Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (finding Pinker “remains an acceptable statement of the standard” and “finding [Twombly] confusing”).  “Rule 12(b)(6) does not countenance … dismissals based on a judge’s disbelief of a complaint’s factual allegations.”  Twombly, 550 U.S. at 556 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). “A well-pleaded complaint may proceed even if it appears ‘that a recovery is very remote and unlikely.’” Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

To the extent Twombly or more recently Ashcroft v. Iqbal, 129 S. Ct. 937 (2009), impacts the standard of review of a Rule 12(b)(6) motion, these opinions merely clarify  that a complaint must “raise a right to relief above the speculative level.”  Twombly, 550 U.S. at 555.  The Third Circuit in Phillips noted that Twombly “‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence’ of the necessary element.” 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).

B.The Legal Standard When Considering A Motion to Dismiss Class Action Allegations Pursuant to Rule 12(b)(6) Does Not Change.

The exact same standard of review that would be applied to an individual claim on a motion to dismiss is applied to the class action allegations. See Legal Standard, Sec. A, supra.  To the extent class action allegations affects the analysis at all, courts are uniformly in agreement that the maintainability of a class action ordinarily should not be decided in connection with a motion to dismiss.

The motion under Rule 12(b) to dismiss the complaint is not the proper vehicle for attacking the validity of plaintiffs’ class action allegation. Such a challenge can properly be made when plaintiff moves for determination of class under Rule 45 of the Local Rules of Civil Procedure.

Borough of Morrisville v. Delaware River Basin Commission, 382 F. Supp. 543, 547 (E.D.Pa. 1974). See also Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 166 ( 3d Cir. 2001) ( holding that it is ordinarily “necessary for the court to probe behind the pleadings” in analyzing the propriety of class action.) (quoting General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982)); King v. Gulf Oil Co.,  581 F.2d 1184, 1186 (5th Cir. 1978) (“The propriety of class action suits can seldom be determined on the basis of pleadings alone.”); Huff v. N. D. Cass Co. of Ala., 485 F.2d 710, 713 (5th Cir. 1973) (holding that analysis of class action allegations “usually should be predicated on more information than the complaint itself affords.”) (citing Wright & Miller, 7A FEDERAL PRACTICE & PROCEDURE. § 1785); Weathers v. Peters Realty Corp.,  499 F.2d 1197, 1200 (6th Cir. 1974) (“ordinarily the determination [of the propriety of a class action] should be predicated on more information than the pleadings will provide.”).

Defendant’s claim, that courts purportedly “sanction the dismissal of class allegations prior to discovery,” is a gross misstatement. See Def. Br., at 7.  The solitary case that Defendant relies upon for support itself acknowledges that dismissal of a class action claims on the pleadings is appropriate only in “rare cases.” Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 (D.N.J. 2003). See also Satterwhite v. City of Greenville, Tex.,  578 F.2d 987, 998 (5th Cir. 1978) (holding that only in “rare instances, maintainability may be determined on the basis of the pleadings”) (emphasis added); South Broward Hosp. Dist. v. MedQuist Inc., 516 F. Supp.2d 370, 401-02 (D.N.J. 2007) (“Dismissal of class allegations at this stage should be done rarely and that the better course is to deny such a motion because ‘the shape and form of a class action evolves only through the process of discovery.’”) (quoting Gutierrez v. Johnson & Johnson, Inc., 2002 U.S. Dist. LEXIS 15418, *16 (D.N.J. Aug. 12, 2002) (emphasis added)); Wright & Miller, supra § 1785.3 (the practice employed in the overwhelming majority of class actions is to resolve class certification only after an appropriate period of discovery).

Additionally, both the Third Circuit  and the United States Supreme Court precedent refute such a conclusion. See  Newton, 259 F.3d at 166;  General Tel. Co. of Southwest 457 U.S. at 160. See also Karan v. Nabisco, Inc., 78 F.R.D. 388, 408 (W.D.Pa. 1978) (“the preferable course is to permit discovery to continue as to the national class rather than prematurely to exclude the class.”).  The First Circuit perhaps best summarized the impropriety of Defendant’s assertion:

To pronounce finally, prior to allowing any discovery, the non-existence of a class or set of subclasses, when their existence may depend on information wholly within defendants’ ken, seems precipitate and contrary to the pragmatic spirit of Rule 23. Evidence which might be forthcoming might well shed light on a final decision on this issue.

Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972). Defendant has thus taken the “rare” exception to general rule and erroneously pronounced it as the legal standard.

IV.ARGUMENT

I.PLAINTIFF HAS ADEQUATELY PLED A PLAUSIBLE CLASS ACTION CLAIM AGAINST DEFENDANT.

Applying the proper standard of review to Defendant’s Motion, the class action claim in Plaintiff’s Amended Complaint is hardly the “rare” exception that warrants departure from the ordinary standard of permitting Plaintiff to take discovery related to the class allegations.  As an initial matter, Defendant notably takes no issue whatsoever with Plaintiff’s pleading of the individual facts surrounding the calls made to Plaintiff and his father. Indeed, Defendant appears to admit outright that these transgressions occurred and that its conduct violates of the FDCPA’s prohibitions.   Therefore, any suggestion that Plaintiff’s Amended Complaint fails to articulate a claim for relief can be disposed of out of hand.

A.Plaintiff’s Amended Complaint Alleges A Class of Purported Debtors Whose Rights Under The FDCPA Were Violated.

As Defendant should know, the allegations in the pleadings are not meant to be read in isolation.

[W]hen deciding if the plaintiff can prove no set of facts which would entitle it to relief such that a motion to dismiss should be granted, it is this Court’s duty to read the Complaint as a whole and draw any and all reasonable inferences for the plaintiff.

Palladino ex rel. U.S. v. VNA of Southern New Jersey, Inc.  68 F. Supp.2d 455, 463 (D.N.J. 1999) (citing Unger v. National Residents Matching Program, 928 F.2d 1392 (3d Cir. 1991). Defendant, nonetheless, isolates the class definition from the rest of Plaintiff’s averments and erroneously argues that the proposed class would include supposed “permissible” calls to third-parties. See Def. Br., Argument, Sec. I.A. Defendant, however, is ignoring the rest of the pleadings which unambiguously set forth that Plaintiff’s contention that Defendant is using a standardized script as a matter of course whenever a third-party is called, meaning that all calls that Defendant makes to third-parties violate the FDCPA.  Therefore, when one properly reviews the Amended Complaint as a whole, it is obvious that Defendant’s argument is meritless.

Defendant’s argument at best does nothing more than confirm that a question of fact may exist as to the ultimate size of the class. Moreover, the simple fact that the class definition in the pleadings may not ultimately be the definition that Plaintiff uses in moving for class certification, or that the Court chooses to certify, is of no instance. Plaintiff or the Court remains free to revise the class definition consistent with discovery as the litigation proceeds.

Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation. For such an order, particularly during the period before any notice is sent to members of the class, “is inherently tentative.” This flexibility enhances the usefulness of the class-action device.

General Telephone Co. of Southwest, 457 U.S. at 160.  See also Urban v. Breier, 401 F. Supp. 706, 709 (D.Wis. 1975) (“The fact that each of these criteria are not set forth with specificity on the face of the complaint is not a matter of great concern at this time.”) (citing Wright & Miller, supra, §1798); Shannon v. Hess Oil Virgin Islands Corp.,  96 F.R.D. 236, 240 (D.V.I. 1982) (“even imprecisely drafted class action allegations may be readily cured . .  . by a precisely worded class certification order entered upon timely submission of the formal Rule 23 application and the completion of any relevant discovery conducted thereto.”).

B.Class Actions Alleging Harm Caused By The Use of Standardized Scripts Are Certifiable.

Certification of class actions based on a defendant’s employment of a standardized or uniform practice, particularly scripts, in connection with oral communication is well accepted. See, e.g., In re The Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450, 514 (D.N.J. 1997) (certifying class action where “plaintiffs’ allegations and the evidence presented to the Court demonstrate that throughout the country, Prudential agents uniformly misled class members with virtually identical oral misrepresentations.”) aff’d 148 F.3d 283 (3d Cir. 1998); Moore v. PaineWebber, Inc., 306 F.3d 1247, 1255 (2d Cir. 2002) (“evidence of materially uniform misrepresentations is sufficient to demonstrate the nature of the misrepresentation”).

The cases cited by Defendant even confirm that standardize or scripted communications are worthy of class certification.  See In re LifeUSA Holding Inc.  242 F.3d 136, 146 (3d Cir. 2001) (distinguishing classes where oral communications are “uniform or scripted”); Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 341 (4th Cir. 1998) (distinguishing classes where oral communications are “standardized”); Grainger v. State Sec. Life Ins. Co. 547 F.2d 303, 307 (5th Cir. 1977) (distinguishing classes where oral communications are “standardized”).  Indeed, Judge Robreno even confirmed that class certification is appropriate in debt collection cases when the “plaintiff can show that defendant’s oral communications for debt-collection purposes were uniform, such that defendant’s callers strictly adhered to a scripted format for the telephone conversations.” Williams v. Empire Funding Corp. 227 F.R.D. 362, 373 (E.D.Pa. 2005).

Defendant’s argument once again at best does nothing more nothing more than point out that that a factual question may exist as to whether the conduct at issue is standardized.  Although Plaintiff strains to see how Defendant intends to prove that the conduct at issue was not standardized given that a standardize script actually exists (Ex. A), the Court is not required to resolve factual questions at the pleading stage. Therefore, Defendant’s argument as such is similarly meritless.

II.DEFENDANT’S ARGUMENTS IN OPPOSITION TO CLASS CERTIFICATION ARE PREMATURE.

It is well settled that a defendant’s attempt to argue about the propriety of class certification on a motion to dismiss is inappropriate.  See Chedwick v. UPMC, 619 F. Supp.2d 172, 189 (W.D.Pa. 2007) (“It would be premature to dismiss [the plaintiff’s] class action averments at this early stage . . .since the issue of class certification will be more appropriately addressed when the record is more fully developed.”); Baas v. Dollar Tree Stores, Inc.  2007 WL 2462150, *3 (N.D.Cal. 2007) (finding that courts generally “review class allegations through a motion for class certification” and not when “discovery has not yet commenced and Plaintiffs have not yet moved to certify their class pursuant to Rule 23.”)  Defendant’s attempt to bring credence to this procedurally flawed approach by citing Rule 23(d)(1)(D) (formerly Rule 23(d)(4)) is similarly flawed.  As Judge Robreno summarized:

A motion to strike class allegations under Rule 23(d)(4) seems, for all practical purposes, identical to an opposition to a motion for class certification. Several district courts have held that Rule 23(d)(4) motions to strike class allegations are premature and that the proper avenue is to oppose the plaintiff’s motion for class certification. . . . Rule 23(d)(4) is the procedural mechanism for striking class allegations from the complaint once the Court determines that maintenance of the action as a class is inappropriate.

*     *     *

It would be improper to allow Defendants to slip through the backdoor what is essentially an opposition to a motion for class certification before Plaintiffs have made such a motion and when discovery on the issue is still on-going.

Korman v. Walking Co., 503 F. Supp.2d 755, 762-63 (E.D.Pa. 2007) (citations omitted).  See also Clark v. State Farm Mut. Auto. Ins. Co., 231 F.R.D. 405, 407 (C.D.Cal. 2005) (finding defendant’s motion to dismiss premature when the motion is “addressing whether a class should be certified”).  Defendant’s Motion is precisely the backdoor attempt at prematurely raising class certification questions that Judge Robreno warned against.  Accordingly, Defendants arguments in Sections II and III of its brief should be disregarded.

V.CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that this Court deny Defendant’s Motion to Dismiss in its entirety.

Respectfully Submitted,

FRANCIS & MAILMAN, P.C.

BY: /s/ James A. FrancisJAMES A. FRANCIS

GREGORY GORSKI

Land Title Building, 19th Floor

100 South Broad Street

Philadelphia, PA 19110

(215) 735-8600

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