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Sykes v. Mel S. Harris & Associates LLC
Citations: 780 F.3d 70; 90 Fed. R. Serv. 3d 1793; 2015 U.S. App. LEXIS 2057Docket: Docket Nos. 13-2742-cv, 13-2747-cv, 13-2748-cv
Court: Court of Appeals for the Second Circuit; February 9, 2015; Federal Appellate Court
Consolidated appeals arise from a September 4, 2012 class certification opinion and a March 28, 2013 class certification order by the U.S. District Court for the Southern District of New York. The defendants include subsidiaries of Leucadia National Corporation, Mel S. Harris and Associates LLC, and Samserv, Inc., collectively referred to as the Leucadia, Mel Harris, and Samserv defendants. The district court certified two classes: 1. A Rule 23(b)(2) class of all individuals sued by the Mel Harris defendants on behalf of the Leucadia defendants under RICO, New York General Business Law (GBL) § 349, and New York Judiciary Law § 487. 2. A Rule 23(b)(3) class of individuals sued by the Mel Harris defendants in New York City Civil Court where default judgments were obtained, asserting claims under RICO, the Fair Debt Collection Practices Act (FDCPA), GBL § 349, and New York Judiciary Law § 487. The appellate court affirmed the district court's certification of both classes, finding no abuse of discretion. The background facts are drawn from the district court's opinion, which relied on depositions and declarations related to the class certification motion, without resolving factual disputes beyond what was necessary for class certification. The plaintiffs, New York City residents, claim they were sued between 2006 and 2010 without proper service of summons and complaint, leading to default judgments against them. They allege that the defendants operated a "default judgment mill" by purchasing charged-off consumer debt, initiating debt-collection actions, and submitting fraudulent documents to obtain default judgments, thereby intending to collect substantial amounts through these fraudulent means. Mel Harris utilizes a software program developed by Mr. Todd Fabacher, their director of information technology, to automate the organization and selection of debts for generating summons and complaints. These documents are prepared in batches of 50, signed by an attorney, and sent to a process serving company, with the relevant process server information stored within the program for easy reference. The defendants typically hire Samserv as the process server, which has been accused of "sewer service," meaning it allegedly fails to properly serve summons and complaints while still submitting false proof of service to the court. After purported service, Mel Harris receives electronic affidavits of service, prompting the automatic generation of motions for default judgments and affidavits of merit within approximately 35 days if the debtor fails to respond. Between 2006 and 2009, Leucadia entities filed 124,838 cases, with Mel Harris representing them in 99.63% of those. Most cases were resolved without debtor participation, leading to default judgments. From 2007 to 2010, Leucadia entities secured default judgments in 49,114 cases in New York City Civil Court. The district court found substantial evidence supporting claims that Samserv engaged in sewer service, noting records of simultaneous service claims at multiple locations and attempts to serve before the assignment date, indicating widespread irregularities. In total, Samserv was involved in service for 94,123 cases filed by Mel Harris from January 2007 to January 2011, including 59,959 for Leucadia. This evidence suggests a systemic issue with the service practices employed by the defendants. Process servers frequently reported high service volumes, with some documenting up to 60 attempts in a single day. Six specific process servers for Samserv accounted for a majority of these services, claiming many days with over 40 visits. However, an experienced process server indicated that consistently achieving more than 25 personal service attempts in one day is improbable. Additionally, the six process servers showed significant discrepancies in their rates of personal, substitute, and nail-and-mail services, with no evidence provided to clarify these variations during class certification. Despite a district court order for Samserv to produce service attempt logbooks by October 6, 2009, none were submitted. Regarding affidavits of merit, the district court detailed the generation process, which was not challenged on appeal. The affidavits from Mel Harris and Leucadia defendants followed a uniform format. A custodian of records, Fabacher, stated he lacked access to original credit agreements and instead relied on bills of sale containing sample agreements and warranties from the original creditor. His practice involved endorsing affidavits in batches of up to 50, with only one affidavit from each batch undergoing a quality check against data in the Debt Master database. The district court noted that, assuming 260 business days per year, Fabacher would need to issue an average of twenty affidavits per hour, roughly one every three minutes, during an eight-hour workday. Plaintiffs highlighted that the Leucadia defendants' approach to purchasing charged-off debts, which typically involves minimal information transfer, is standard in the secondary consumer debt market, with underlying documentation rarely provided. Monique Sykes initiated legal action against multiple defendants, including Leucadia, Mel Harris, and Samserv, on October 6, 2009, alleging violations of the Fair Debt Collection Practices Act (FDCPA) and New York's General Business Law (GBL). Rea Veerabadren joined the case on December 28, 2009, introducing class allegations and RICO claims, followed by Kelvin Perez's addition on March 31, 2010, which included a New York Judiciary Law claim against Mel Harris in a second amended complaint. The defendants' motion to dismiss was denied by the district court, which determined that the FDCPA claims were not time-barred due to equitable tolling, as the defendants' actions effectively concealed their misconduct. The Samserv defendants contended they were not “debt collectors” under the FDCPA, but the court ruled that their alleged failure to serve process and provision of false affidavits disqualified them from this exemption. The defendants also claimed the plaintiffs lacked standing for their RICO claims, asserting that the plaintiffs could not prove injury or causation. The court disagreed, finding that the defendants' pursuit of default judgments caused the plaintiffs' injuries, including bank account freezes and legal costs. The Leucadia and Mel Harris defendants also challenged the court’s jurisdiction under the Rooker-Feldman doctrine, which was rejected as the plaintiffs were not appealing a state court judgment but asserting independent claims. Following the district court's rulings, the plaintiffs sought class certification and the third amended complaint added Clifton Armoogam and another Leucadia entity as defendants. The court certified two classes on September 4, 2012, under Federal Rule of Civil Procedure 23(b)(2), encompassing individuals sued by the Mel Harris defendants for default judgments in New York City Civil Court, asserting claims under RICO, GBL, and New York Judiciary Law. A class has been certified under Rule 23(b)(3) for individuals sued by the Mel Harris defendants while representing the Leucadia defendants in New York City Civil Court cases resulting in default judgments. The plaintiffs allege violations under RICO, the FDCPA, GBL § 349, and New York Judiciary Law § 487. The district court asserted jurisdiction based on 28 U.S.C. §§ 1331, 1367, and 15 U.S.C. § 1692k(d). Following certification, the defendants sought appellate review, which was granted on July 19, 2013, with jurisdiction established under 28 U.S.C. § 1292(e). The standard of review for class certification is as follows: abuse of discretion for the certification decision, de novo for the legal conclusions, and clear error for factual findings. Class certification requires meeting specific prerequisites outlined in Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. These prerequisites necessitate that the class is large enough to make individual joinder impractical, shares legal or factual questions, has representative claims typical of the class, and ensures that representatives adequately protect class interests. The Supreme Court has emphasized that commonality necessitates a shared injury among class members that is capable of classwide resolution, meaning the resolution of a central issue must apply to all claims simultaneously. The Court highlighted that the commonality and typicality requirements of Rule 23(a) often overlap, serving as criteria to assess the economic feasibility of maintaining a class action and ensuring that class interests are adequately protected. Under Rule 23(b)(2), class actions for injunctive relief are permissible only when the opposing party's actions affect the class as a whole, allowing for a singular injunction to benefit all members. For Rule 23(b)(3), plaintiffs must meet the standards of predominance and superiority, demonstrating that common legal or factual questions prevail over individual ones and that a class action is the most efficient way to resolve the issues. Factors for this determination include class members' interests in individual litigation, existing related litigation, the appropriateness of the forum, and potential management challenges of the class action. The Supreme Court noted that Rule 23(b)(3) aims to enable groups with small individual claims to collectively seek justice, reinforcing that while the inquiry is rigorous, it does not require proof that every claim element is suitable for classwide evidence. A class plaintiff must demonstrate that common questions of law or fact predominate over individual questions, as stipulated by Fed. R. Civ. P. 23(b)(3). Individual issues are permissible, provided they do not overshadow the common questions affecting the class. Liability can be determined on a class-wide basis, even with some individualized damages present, and the existence of individualized damages alone does not preclude class certification. The Supreme Court has affirmed that individualized monetary claims are suitable for Rule 23(b)(3), but plaintiffs must link damages to the defendant's actions that created the liability. Class members must be shown to have suffered injury due to the alleged wrongdoing, but plaintiffs do not need to demonstrate the exact damages for each member at the certification stage. District courts must conduct a dual inquiry regarding the predominance of common issues and whether class certification is the superior method for adjudicating the claims. Rule 23(b)(3) outlines four factors for this analysis: individual control of litigation, prior actions involving the parties, the desirability of the forum, and manageability. While these factors apply to both inquiries, they primarily influence the superiority assessment, with manageability being the most critical concern. Courts evaluate the convenience of the forum and the geographical proximity of the parties. Additionally, the plaintiffs allege that defendants Leucadia, Mel Harris, and Samserv violated the Fair Debt Collection Practices Act (FDCPA), aimed at eliminating abusive debt collection practices. Their claims specifically focus on violations of Sections 1692e and 1692f of the FDCPA. Section 1692e of the Fair Debt Collection Practices Act (FDCPA) prohibits debt collectors from using false or misleading representations in debt collection. Specific violations include misrepresenting the character, amount, or legal status of a debt, communicating false credit information, and employing deceptive means to collect debt (15 U.S.C. 1692e(2, 8, 10)). Section 1692f further prohibits unfair or unconscionable means of debt collection. Actions under the FDCPA must be initiated within one year of the violation (15 U.S.C. 1692k(d)), and violations can result in civil liability (15 U.S.C. 1692k). Liability can be established regardless of whether the debtor owes the debt, emphasizing consumer protection against unscrupulous collectors. In class actions, damages for named plaintiffs are limited to $1,000, while class damages are capped at $500,000 or 1% of the debt collector's net worth. Prevailing plaintiffs may recover costs and attorney’s fees (15 U.S.C. 1692k(a)(2)(A), (B), (3)). Damages in class actions consider factors like frequency of noncompliance and the number of affected individuals (15 U.S.C. 1692k(b)(2)). In civil RICO claims, plaintiffs must demonstrate a substantive violation under 18 U.S.C. 1962, injury to business or property, and a causal relationship between the injury and the RICO violation. Plaintiffs allege that Leucadia, Mel Harris, and Samserv formed a RICO enterprise and engaged in wire and mail fraud, which serves as predicate acts for RICO violations. The district court found it plausible that the defendants' actions caused injuries such as freezing bank accounts and incurring legal costs. Additionally, plaintiffs assert claims under New York’s General Business Law for deceptive business practices. To succeed, they must show that the defendant's conduct was consumer-oriented, involved a deceptive act, and resulted in injury (N.Y. Gen. Bus. L. 349(a); Wilson v. Nw. Mut. Ins. Co.). The first element of a claim may be established by demonstrating that the conduct in question could "potentially affect similarly situated consumers." Individuals can initiate actions to enjoin unlawful practices or recover damages, with the statute allowing for actual damages or a minimum of fifty dollars, alongside potential attorney’s fees and treble damages up to one thousand dollars for willful violations. Additionally, a claim is made under New York Judiciary Law against the Mel Harris defendants, stating that attorneys guilty of deceit or collusion may incur a misdemeanor and must pay treble damages to injured parties. Regarding class certification under Rule 23(a)(2), the commonality requirement is met if a common issue central to the claims exists, allowing for a unified resolution. The district court found that the plaintiffs demonstrated this commonality, as their claims stemmed from a systematic practice of filing false affidavits to obtain default judgments in New York City Civil Court. The court identified the common injury for all plaintiffs as the fraudulently procured default judgment. The Leucadia and Mel Harris defendants contended that the district court improperly prioritized the false affidavits of merit over affidavits of service, claiming this distorted the plaintiffs’ substantive claims. However, the district court maintained that both types of affidavits are essential to the alleged fraudulent scheme, which involves misleading the court about service and proof of debt to secure unwarranted judgments. The plaintiffs clarified that sewer service is a significant factor contributing to the lack of defense in debt collection cases, integral to the defendants’ overarching plan. The district court appropriately classified the defendants' scheme as a "unitary course of conduct" reliant on false affidavits of merit to secure fraudulently obtained default judgments. The scheme necessitates these false affidavits to comply with New York Civil Court requirements for debt collection actions involving claims up to $25,000, governed by CPLR § 3215. This section mandates that plaintiffs provide proof of service and facts supporting the claim via affidavits to obtain a default judgment. The plaintiffs argue that statements made by Fabacher in the affidavits of merit, claiming personal familiarity with the relevant facts, are false due to a lack of supporting documentation. Establishing the truth of this assertion is critical, as it directly impacts the validity of all claims, including violations of the Fair Debt Collection Practices Act (FDCPA), New York General Business Law, and New York Judiciary Law, all of which hinge on the falsity of such representations. The plaintiffs also assert that the false affidavits serve as a basis for liability under the RICO statute, as both mail and wire fraud can be established through fraudulent representations. Thus, these false affidavits support the claims made by the plaintiffs. While not every element of each claim needs to be resolved to establish a common question under Rule 23, the district court correctly determined that the use of false affidavits of merit could create a common issue fulfilling Rule 23(a) requirements. Furthermore, even if the court needed to evaluate the false affidavits of service for class-wide proof, it did not abuse its discretion in concluding that Rule 23(a) criteria were met. The district court found substantial evidence supporting the plaintiffs' claims that defendants engaged in "sewer service," which refers to the fraudulent practice of claiming to have served legal documents when they have not. The court indicated that certifying a class may require consideration of how a trial would be conducted if such a certification were granted. Plaintiffs presented two main arguments for proving the fraudulent nature of the affidavits of service at trial: 1. The credibility of these affidavits is undermined by the court's finding of regular sewer service, and without these affidavits, defendants can only rely on contemporaneous logbooks mandated by law, which, if not maintained, render process server testimony untrustworthy. 2. Plaintiffs claim that defendants' failure to provide logbooks, as ordered, allows for a presumption of fraud due to spoliation, whereby the court can establish facts based on this non-compliance with discovery orders. The court emphasized that proving common questions of law or fact is sufficient at this stage for class certification under Rule 23(a). The district court also asserted it did not abuse its discretion in certifying the class under Rule 23(b)(3), which requires that common questions of law or fact predominate over individual issues, and the court must find that class action is a superior method for resolving the controversy. The presence of individual issues does not automatically defeat certification, provided that common issues predominate. The district court's decision to certify the class under Rule 23(b)(3) was upheld, with the determination that common legal and factual questions prevail over individual issues related to damages, timeliness, and service. Defendants argued that individualized issues would dominate, particularly regarding damages; however, the court found that the claims stem from a uniform practice of the defendants in filing automated affidavits to secure default judgments against debtors. This practice's legality under various laws does not rely on individual circumstances. While individual issues may arise concerning causation, damages, and the statute of limitations, these were deemed insufficient to negate class certification. The plaintiffs seek statutory, actual, and incidental damages. Statutory damages under New York GBL § 349 can be determined through common proof, capped at $50. Under the FDCPA, class action damages are capped at $500,000, with courts considering the extent of violations and the number of affected individuals. The only individual inquiries pertain to the recovery of funds taken due to fraudulent judgments, but this information is readily available from the defendants, indicating that individual damages considerations will not overwhelm the litigation. Additionally, the defendants' reference to the Comcast case was misapplied, as that case involved unique individual damages based on undisputed evidence, unlike the current situation. The district court's ruling on predominance was not an abuse of discretion. The excerpt addresses the adequacy of the plaintiffs' theory of liability in a class action lawsuit, contrasting it with the Comcast case. It highlights that, unlike in Comcast, where the plaintiffs' model failed to measure damages based on the common liability theory of overbuilder competition, the plaintiffs in the current case assert a theory based on alleged fraud violating multiple federal and state statutes. This theory is directly linked to the damages claimed under the Fair Debt Collection Practices Act (FDCPA), Racketeer Influenced and Corrupt Organizations Act (RICO), and state statutes. The excerpt emphasizes that the standard for class certification does not preclude individualized monetary claims but requires showing that damages stem from the defendant's actions creating legal liability. The plaintiffs have met this standard. Additionally, it addresses the defendants' claim that the district court did not conduct a rigorous analysis during class certification, stating that the court identified numerous common issues that outweighed individualized questions concerning damages. Specific common issues include the legality of the defendants' practices regarding affidavits, whether they constitute a RICO enterprise, and whether they engaged in deceptive acts under state law. The defendants acknowledge these issues are common but dispute the district court's conclusion that they outweigh individualized concerns. The district court's certification order is upheld, as the defendants have not sufficiently demonstrated an abuse of discretion. The court recognized potential individualized issues of timeliness, which could arise if the defendants were found liable. Defendants contested the district court's conclusion that such individual issues would not predominate, while plaintiffs clarified that they do not seek to include individuals whose claims accrued outside the statute of limitations. Specifically, only those whose claims accrued within one year prior to filing the Complaint will pursue relief under the Fair Debt Collection Practices Act (FDCPA). Although defendants highlighted that the court previously relied on equitable tolling to establish the timeliness of claims for Sykes and Perez, they did not assert that the plaintiffs are estopped from rejecting equitable tolling for class certification. The Mel Harris defendants argued that this rejection creates a predominance issue under Rule 23(b)(3) but acknowledged that it also raises an adequacy concern under Rule 23(a). However, the court found no merit in this argument, asserting that adequacy is satisfied unless class members' interests are antagonistic to one another. Some class members may pursue claims with longer statutes of limitations without conflicting interests with those pursuing FDCPA claims. If Sykes and Perez's FDCPA claims are time-barred, they may still participate as members of a subclass for the claims they can assert. The court indicates that the district court has the authority to establish appropriate subclasses if necessary, affirming that the original class certification should remain intact. Plaintiffs have the right to disclaim equitable tolling without compromising their representation adequacy, as defendants have not sufficiently demonstrated why such a disclaimer would create a conflict. The district court retains the authority to evaluate the effects of this disclaimer on the plaintiffs' specific claims at a later time without affecting the class certification order. Regarding causation, the district court acknowledged that individual causation issues may arise but concluded they would not dominate the case. Defendants argued that different circumstances surrounding service and debts create distinct injuries among class members. However, the court found that, under the Fair Debt Collection Practices Act (FDCPA), establishing the existence of an underlying debt is not necessary for liability, and allegations of fraudulent affidavits used to obtain default judgments negate the relevance of individualized causation for FDCPA claims. Conversely, for claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), individual causation is pertinent, as it requires showing that the injury to plaintiffs’ business or property resulted from a substantive RICO violation. The court noted that injuries included freezing bank accounts and incurring legal costs related to challenging default judgments, which were not disputed by defendants as a valid property interest. Defendants contended that if a debt existed and a default judgment was properly obtained, plaintiffs could not claim injury under RICO, but this concern represents an isolated issue amidst numerous common issues. Therefore, the district court's finding that common issues predominate remains undisturbed. Samserv remains a proper class defendant in this litigation despite potential causation issues. The district court, at the motion to dismiss stage, determined that plaintiffs sufficiently alleged Samserv's involvement in sewer service, preventing it from claiming an FDCPA exemption. However, this does not exempt Samserv from RICO claims, which are based on its participation in a conspiracy. The district court found that while individual issues exist, they do not outweigh common issues, justifying class certification under Rule 23(b)(3). The Mel Harris defendants argue for the first time on appeal that the district court undervalued the importance of concentrating litigation in the appropriate forum, suggesting that the New York City Civil Court would be a superior venue for addressing the adequacy of affidavits filed there. This argument is flawed, as the New York City Civil Court lacks the jurisdiction to hear class actions, being limited to cases with a controversy value of $25,000 or less. The defendants’ preference for piecemeal litigation does not impose a requirement under Rule 23(b)(3). Additionally, the superiority analysis of Rule 23(b)(3) does not hinge on comparing the value of claims in federal versus state courts, and the cited authorities do not apply to the claims presented by the plaintiffs in this case. In 509 F.2d 205 (9th Cir. 1975), putative class plaintiffs had previously been represented by the State Attorney General in another action involving the same defendants. The court examined other cases where state court actions were analyzed to determine if a federal forum was superior. However, the ongoing state litigation did not relate to the plaintiffs' current claims. The district court's reference to strains on the state judicial system post-Hurricane Katrina was dismissed as it did not apply to the current case's circumstances. The court emphasized that the forum requirement is primarily geographic rather than a comparative analysis of state versus federal benefits. Furthermore, the core issue was not the procedures of the New York City Civil Court but the fraudulent methods used by defendants to secure judgments, which supported claims under both federal and state law. The district court's jurisdiction to handle these claims was affirmed, and it found that class action was a superior method of adjudication compared to individual lawsuits, countering the defendants' arguments. Defendants did not adequately engage with the district court's efficiency findings, reinforcing the conclusion that class actions are preferable for resolving these claims. Litigating separate actions by plaintiffs is likely to be ineffective due to their limited resources and the small potential recoveries involved. New York law allows for the vacatur of default judgments obtained through fraudulent means by an administrative judge, who initiates proceedings rather than the judgment defaulter. This process, while remedial, does not provide plaintiffs with a right of action, cannot address the core issues of their allegations, and denies them control over litigation. The dissent’s concerns about attorneys' fees in class actions do not justify forcing plaintiffs to seek relief through state courts, which is not a superior alternative to class actions. The defendants’ arguments regarding the Rooker-Feldman doctrine and the Full Faith and Credit Act do not support overturning the district court’s class certification order. Rooker-Feldman prevents federal courts from reviewing claims from state-court losers that challenge state-court judgments, requiring four criteria to be met: the plaintiff must have lost in state court, must claim injuries from that judgment, must seek its review and rejection, and the judgment must precede the federal proceedings. The district court found that the plaintiffs' claims were independent of the state-court judgments and did not seek to overturn them, a conclusion that is upheld. Claims under the FDCPA, RICO, and state law focus on the fraudulent actions of the defendants in securing state court judgments rather than the legitimacy of those judgments themselves. The Leucadiá defendants argue that the district court should have excluded "remittance" damages from its class certification order due to the causation elements of Rooker-Feldman. However, this argument misinterprets the requirements of Federal Rule of Civil Procedure 23, which mandates that class certification orders must define the class and its claims without needing to exclude certain types of damages. The district court's certification correctly identified the class as individuals sued by the Mel Harris defendants on behalf of the Leucadia defendants and specified claims under RICO, FDCPA, GBL § 349, and New York Judiciary Law § 487. Class certification does not involve a comprehensive exploration of merits or an exhaustive listing of defenses. Furthermore, the Full Faith and Credit Act argument presented by the defendants, which asserts that state court judgments must be respected, does not alter the requirement for class certification under Rule 23 and is similarly dismissed. The court emphasizes that determining specific damages is unnecessary at the certification stage, as such decisions are beyond the scope of Rule 23(c)(1)(B). Parties dispute the necessity of Fabacher's declaration of “personal knowledge” for a default judgment application in New York Civil Court. Mel Harris references a 2009 New York Civil Court Directive (DRP-182) that adds requirements for third-party creditors, mandating an Affidavit of a Witness attesting to the chain of title based on personal knowledge. Plaintiffs cite a checklist from the New York City Civil Court requiring an “Affidavit of Facts” from someone with personal knowledge. The core issue is whether Fabacher had to affirm personal knowledge of the debt, which is deemed irrelevant for determining liability in the plaintiffs' claims. Despite not reviewing the underlying loan documentation, Fabacher attested to this knowledge in numerous forms. Liability will hinge on the defendants' conduct and potential fraud, rather than procedural requirements. Additionally, there is debate about whether the Fair Debt Collection Practices Act (FDCPA) allows claims for false statements made to parties other than the debtor. At the class certification stage, the court refrains from extensive merits inquiries, acknowledging that determining the actionability of such false statements is a common question for the class. The district court noted uncertainty regarding whether false representations made in court, as alleged, violate the FDCPA, but opted not to resolve this question at the certification stage. The decision underscores that while common questions must be identified for class certification, resolving these questions is not mandated at that initial stage. The district court was correct in not definitively ruling on whether the Fair Debt Collection Practices Act (FDCPA) applies to the false statements involved in this case, leaving this determination for later proceedings. It is customary for appellate courts to allow district courts to address such issues first. The court's decision to certify a Rule 23(b)(2) class was not an abuse of discretion. The proposed injunctive relief is deemed appropriate because it addresses the defendants' systematic filing of false affidavits to obtain default judgments against class members. The injunction involves four key components: (1) requiring defendants to stop engaging in unlawful debt collection practices; (2) mandating notification to class members about default judgments and their rights to challenge them; (3) ensuring compliance with legal processes in future actions; and (4) requiring affidavits in future cases to reflect the defendants' personal knowledge of the facts. The Supreme Court has stated that class certification for injunctive relief is proper when a single injunction can benefit all class members, and relief does not need to be identical but must be beneficial. The defendants argued that individualized issues of service would undermine the class certification; however, the court found that the broad nature of the proposed relief would still benefit all class members, including those who had already had their judgments vacated, as they could face further actions from the defendants. Thus, the district court appropriately concluded that the plaintiffs met the requirements of Rule 23(b)(2). The court declined to determine whether the Racketeer Influenced and Corrupt Organizations Act (RICO) allows for private injunctive relief, agreeing with the district court's decision not to address this question at the class certification stage. Consequently, the court affirmed the district court's opinion and order. The district court found that the proposed class met both the typicality and commonality requirements of Rule 23(a), noting that these concepts merged in this case. Defendants' arguments against class certification based on the alleged lack of service by Samserv were deemed misplaced, as the claims by plaintiffs not served by Samserv pertained solely to RICO and not FDCPA or GBL. The court acknowledged the possibility of creating subclasses under Rule 23(c)(5) but left that determination to the district court. The dissent raised concerns about the shift in the focus of the plaintiffs' allegations and the need for individualized showings, but the court clarified that any procedural remedies related to sewer service could have been raised earlier by the defendants. Additionally, the court noted the defendants had not pleaded a res judicata defense, which is necessary for such claims to be considered. Finally, the court reiterated that it had not yet resolved the issue of whether misrepresentations made to third parties could constitute an FDCPA claim.