District Court (Ill.) Says Consumer v. Commercial Debt Inquiry Was Insufficient to Defeat Class Cert. in FDCPA Class Action

With respect to the first argument, even though some inquiry will be necessary to determine whether a letter recipient’s debt was a “consumer debt” for the purposes of the FDCPA, this does not mean that the class is not clearly defined by objective criteria. See Wilkerson v. Bowman, 200 F.R.D. 605, 609 (N.D. Ill. 2001) (“[T]he need to show that the transactions involved in a particular case are consumer transactions is inherent in every FDCPA class action. If that need alone precluded certification, there would be no class actions under the FDCPA.”) (citations omitted); Gold v. Midland Credit Mgmt., 306 F.R.D. 623, 630 (N.D. Cal. 2014) (“[A]s many other courts have determined in considering class certification under the FDCPA, the mere fact that the debt collection agency does not segregate business and consumer debt accounts is not enough to thwart class certification.”); see also Frey v. First Nat. Bank Sw., 602 F. App’x 164, 169 (5th Cir. 2015) (holding that class was sufficiently ascertainable where there was “nothing to suggest that a lengthy individualized analysis of each account and all of its individual transactions would be necessary to identify class members”).  Here, Plaintiff asserts that the parties can look to each potential class member’s contract with DISH Network to determine whether their debt was a consumer debt. [45 (Pl.’s Reply Br.), at 3.] In support of this assertion, Plaintiff attaches his underlying contract with DISH Network. [45-1.] The contract is titled “Residential Consumer Agreement” and references the fact that it is an agreement for the “Digital Home Advantage plan.” [Id. at 2.] Even if the underlying contracts cannot be obtained, or even if is not clear from the underlying contracts whether the potential class member’s debt was a “consumer debt” for the purposes of the FDCPA, it would be possible to determine whether a possible class member’s debt was a “consumer debt” simply by asking them the primary purpose of their account. See, e.g., Butto v. Collecto Inc., 290 F.R.D. 372, 382 (E.D.N.Y.2013) (“The Court does not find it particularly arduous to ask potential class members the simple question of whether the individual’s debt at issue qualifies as a consumer debt.”); Kinder v. United Bancorp, Inc., 2012 WL 4490874, at *5 (E.D. Mich. Sept. 28, 2012) (finding that “this concern can easily be addressed when class members are identified by asking them to disclose the primary purpose of their account”).