A new decision from the Eastern District of New York denying class certification shows a glimpse into a plaintiffs' counsel's practice that caused a court to call into question his adequacy as class counsel. The decision also sets a limit on who can serve as a class representative for a Fair Debt Collection Practices Act (FDCPA) suit. The biggest issue presented for plaintiff's case was that his wife, who was not named in the suit, was running the show, and he was minimally involved in the process. This case also shows the power of depositions.
In Russell v. Forster & Garbus, LLP, No. 17-cv-4274 (E.D.N.Y. Mar. 16, 2020), the plaintiff's counsel filed a class action against defendant alleging that a collection lawsuit and communications violated a slew of FDCPA provisions. A deposition of plaintiff revealed some interesting facts.
First, the wife.
- She was the one who spoke with and retained plaintiff's counsel on behalf of her husband.
- She authorized plaintiff's counsel to file the FDCPA claims on behalf of her husband.
- She was the one who would know how plaintiff's counsel was being paid for his services.
- She handled the review of documents.
Second, the plaintiff/husband himself didn't know much about what was going on. All that he could vaguely state is that this action related to the "sale of [his] name without telling [him] about it." (The original creditor sold his account to a debt buyer.)
- The first time the plaintiff spoke with plaintiff's counsel was 2 months prior to the deposition.
- The first time he—and his wife—saw the FDCPA complaint was during the deposition.
- He couldn't remember the state court action that was at the crux of the FDCPA claim.
- He didn't know whether he owed a debt to the creditor nor whether he received collection letters from defendant.
- He did not know—and plainitff's counsel never explained to him—the responsibilities of a class plaintiff.
- He did not know if the attorney ever informed him of a proposed class.
Third, it seems that the underlying retainer of counsel is...wobbly. Plaintiff's wife herself stated she did not sign a retainer agreement with plaintiff's attorney. Instead, he agreed to "take care of" the state court collection litigation in exchange for allowing his firm to file the FDCPA complaint. The only explanation of class representative duties explained to plaintiff's wife was that her husband would need to appear for a deposition. Plaintiff and his wife also received no documents related to the FDCPA action.
Inadequate Class Representative
Based on all of this, the court found that plaintiff was not an adequate representative for the class. The court found that, "While the Court cannot fault Palintiff for relying on his wife and attorney for advice, Plaintiff's deposition testimony makes clear that he does not have an interest in vigorously pursuing the claims of the class. Indeed, plaintiff's testimony evidences a serious lack of familiarity with the suit." (Internal citations and quotations omitted.) The court concluded that:
Plaintiff has virtually no familiarity with this action and no understanding of his role as class representative.
The court continued:
The Court also rejects Plaintiff's argument that his willingness to prosecute this case is "enhanced" because his wife "is able and willing to help [Plaintiff] better understand the nature of a class action lawsuit and better understand the basis of the lawsuit." The Court cannot find any legal justification to allow Plaintiff to proceed as class representative when testimony reveals that his wife, who is not a party to the action, is making decisions behind the scene on behalf of the proposed class.
Court Questions Plaintiff's Counsel's Adequacy
Even though the court did not need to do so since it already denied class certification, the court went into a discussion about issues it noticed with plaintiff's counsel's tactics.
Plaintiff's counsel is no stranger to this Court and has appeared as counsel in numerous FDCPA cases. However, Plaintiff's and Mrs. Russell's testimony demonstrates that Plaintiff's counsel did not communicate with his clients for nearly a year after initiating this action and that he never explained the responsibilities of a class representative. Moreover, after the parties briefed this motion, it came to the Court's attention that Plaintiff's counsel "has engaged in a pattern of abandoning his cases.
The Court recognizes Plaintiff's counsel's experience in defending and prosecuting individual consumer protection cases. Nonetheless, Plaintiff's counsel's recent conduct, including his failure to obey numerous court orders issued by this Court and others within this District in FDCPA actions, leads the Court to conclude that Plaintiff's counsel may not be "qualified . . . to conduct the litigation."
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