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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Never Assume Numerosity

Posted in Certification

On October 3, 2007, Joyce Huntley—who, like many Americans at one time or another—owed some creditors some money–picked up her phone to learn that if she did not immediately wire money for the debt via Western Union to The Law Office of Richard Clark, her wages would be garnished. The call was placed by Shirley Bratton, a then-employee of the Law Office of Richard Clark, and the threat violated the terms of the Fair Debt Collection Practices Act ("FDCPA").

Huntley filed a lawsuit, and added allegations that it would be appropriate for class treatment. Bratton had worked for The Law Office of Richard Clark, a law firm specializing in debt-collection, for six months, and her only job was to call debtors requesting payment. So it only stood to reason that she would have similarly harassed hundreds or even thousands of other customers, right?

Maybe not. The class Huntley sought to certify was everyone "who [was] threatened with unlawful wage garnishment by debt collector Shirley [Bratton] during a telephone call." See Huntley v. Law Office of Richard Clark, 262 F.R.D. 203, 204 (E.D.N.Y. 2009). When Huntley moved to certify the class, The Law Office challenged it on numerosity grounds. Huntley may have had a bad experience with Bratton, but she had offered no evidence that Bratton had threatened anyone else. Since the plaintiff bears the burden of proof, the court found that she had not demonstrated numerosity in this case.

What can defendants learn from this case? First, don’t ignore numerosity. A defendant will often concede numerosity out of the gate, because it usually seems easy to prove. In this case, it wasn’t. Second, look for the simplest way to frame a problem with a proposed class. A defendant could challenge Huntley’s proposed class on several grounds. The class definition she proposed (everyone "threatened … by debt collector Shirley Bratton") was merits-based. And, if one amended the class definition, it was very possible that Huntley was not typical of the proposed class.  It’s possible the defendant challenged these grounds as well (the opinion doesn’t say); but the simplest way for the court to grasp the problem was through numerosity. Courts have long recognized that class-action requirements tend to blend together, so it pays to argue more than one if you can.