                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-2006

Beck v. Maximus Inc
Precedential or Non-Precedential: Precedential

Docket No. 05-3530




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                                    PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT



                 No. 05-3530



          DONNA M. BECK,
   ON BEHALF OF HERSELF AND ALL
    OTHERS SIMILARLY SITUATED

                      v.

              MAXIMUS, INC.,
                        Appellant



On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
     D.C. Civil Action No. 04-cv-02199
       (Honorable Edmund V. Ludwig)



            Argued April 27, 2006
            Before: SCIRICA, Chief Judge,
        NYGAARD and ALARCÓN * , Circuit Judges

                   (Filed August 4, 2006 )

JAMES A. KELLER, ESQUIRE (ARGUED)
JAMES F. KILCUR, ESQUIRE
Saul Ewing LLP
Centre Square West
1500 Market Street, 38th Floor
Philadelphia, Pennsylvania 19102
       Attorneys for Appellant

JAMES A. FRANCIS, ESQUIRE (ARGUED)
Francis & Mailman, P.C.
Land Title Building
100 South Broad Street, 19th Floor
Philadelphia, Pennsylvania 19110

DAVID A. SEARLES, ESQUIRE
Donovan Searles, LLC
1845 Walnut Street, Suite 1100
Philadelphia, Pennsylvania 19103
      Attorneys for Appellee



    *
    The Honorable Arthur L. Alarcón, United States Circuit
Judge for the Ninth Judicial Circuit, sitting by designation.

                             2
                  OPINION OF THE COURT



SCIRICA, Chief Judge.

        In this consumer class action against a debt collector, the
issue on appeal is whether the District Court erred in certifying
a class when defendant asserted a defense unique to the claims
of the class representative. We will vacate and remand.

                                I.

        Maximus, Inc. has a contract with the U.S. Department
of Education to collect overdue student loans. Between May 20,
2003, and May 20, 2004, Maximus sent a form collection letter
entitled “Employment Verification Request” to the employers of
776 Pennsylvania individuals. The Employment Verification
Request displayed “MAXIMUS Collection Center” in boldface
type at the top and bottom of the page and requested information
about the individual’s location and employment. On May 28,
2003, Maximus sent an Employment Verification Request to
appellee Donna M. Beck’s employer, Inolex Chemical
Company.

      Beck did not have an outstanding loan with the
Department of Education. Maximus had confused her with
another woman, with the same name, who lived in the same
Philadelphia neighborhood. The two women had a history of


                                3
being mistaken for one another. They had been confused on
voter registration rolls, and their credit histories had been mixed
up by the credit information service that provided Maximus with
employment information.

       Before sending the Employment Verification Request, a
Maximus representative telephoned Inolex at least twice,
attempting to reach Beck. On one call, Inolex’s human-
resources department informed the Maximus representative that,
based on the social security number he provided, the debtor
“Donna M. Beck” did not work there. The Maximus
representative responded by contending Beck must be using two
different social security numbers. Notified of the inquiries,
Beck called Maximus to clarify she was not the debtor in
question. She also contacted the other Donna M. Beck, met her
in person, and established she had an outstanding debt with the
Department of Education. After this meeting, neither woman
contacted Maximus to clarify the situation. Beck testified that
when she saw the Employment Verification Request, she knew
it was intended for the other Donna M. Beck and was sent to
Inolex in error.

       On May 20, 2004, Beck filed a complaint in the District
Court, alleging Maximus violated the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692b, 1692c, 1692d, 1692e, and
1692f. The Fair Debt Collection Practices Act is intended to
protect both debtors and non-debtors from misleading and
abusive debt-collection practices. See § 1692(e). Among other
things, the Act expressly prohibits “[a]ny debt collector

                                4
communicating with any person other than the consumer” from
“stat[ing] that such consumer owes any debt,” § 1692b(2), and
from “indicat[ing] that the debt collector is in the debt collection
business or that the communication relates to the collection of
a debt,” § 1692b(5). The complaint alleged Maximus violated
the Act by sending Beck’s employer a form collection letter,
which improperly identified the sender as a collection agency
and implied the existence of a debt.

       Section 1692k(c) of the Act offers a defense to a debt
collector whose violation results from a bona fide error. It
provides:

       A debt collector may not be liable in any action
       under this subchapter if the debt collector shows
       by a preponderance of evidence that the violation
       was not intentional and resulted from a bona fide
       error notwithstanding the maintenance of
       procedures reasonably adapted to avoid such
       error.

15 U.S.C. § 1692k(c).

      Beck filed a motion for class certification of 776
consumers in Pennsylvania whose employers received an
Employment Verification Request from Maximus. Maximus
responded it had a defense to Beck’s claims under § 1692k(c)
because it made a bona fide error on the identity of the debtor
“Donna M. Beck.” Maximus contended this defense, unique to
Beck’s claims, precluded Beck from being an adequate

                                 5
representative with claims typical of the class. After the District
Court denied Maximus’s motion to dismiss the class allegations,
Maximus filed an answer to the complaint, again contending it
had a defense to Beck’s claims under § 1692k(c).

        Maximus designated two corporate witnesses under Fed.
R. Civ. P. 30(b)(6)—the project manager who oversaw student
loan collection, and the collection supervisor in charge of
assuring compliance with the Fair Debt Collection Practices Act.
At depositions prior to class certification, these witnesses
explained the Employment Verification Request was a standard
form letter, drafted by Maximus. It was used to verify whether
a given debtor worked for the employer Maximus had listed in
its records. The witnesses testified Maximus had no specific
procedures governing use of Employment Verification Requests.
They also testified that sending the Employment Verification
Request to Beck’s employer did not violate any established
policy, and that it was not uncommon to send Employment
Verification Requests to the wrong employer.

       Following oral arguments, the District Court certified a
class consisting of all individuals in Pennsylvania to whose
employer Maximus had sent an Employment Verification
Request on or after May 20, 2003. The District Court
designated Beck as class representative and the law firms of
Francis & Mailman, P.C., and Donavan and Searles, LLC, as
class co-counsel.




                                6
        In its “findings of facts” supporting class certification
under Fed. R. Civ. P. 23(a),1 the District Court noted neither
numerosity nor commonality was in dispute. Numerosity was
shown by the existence of 776 class members, and commonality
was satisfied because “[t]he principal question is whether
defendant violated the Fair Debt Collection Practices Act by
sending an ‘Employment Verification Request’ or a substantially
same form to the person’s employer(s) on or after the applicable
date.” (App. 4a.) The court concluded typicality was satisfied
because “[t]he claims of plaintiff Donna M. Beck are typical of
the claims of the Class.” (Id.) In a footnote, the court rejected
Maximus’s contention that Beck was atypical because her
claims were subject to a unique defense. The court stated:

        [D]efendant says that sending the EVR to
        plaintiff’s employer was the result of a bona fide
        error and defensible. Plaintiff counters that it is
        irrelevant whether the communication was in
        error, because the violation—the prohibited
        language included in all EVRs—was not an error.
        Plaintiff cites deposition testimony of two
        representatives of defendant that (1) defendant
        drafted the language of the EVR, (2) there was no


    1
     In deciding whether to certify a class, a court must first
determine whether the proposed class satisfies the four
requirements of Fed. R. Civ. P. 23(a): numerosity, commonality,
typicality, and adequacy.

                                7
       specific procedure for sending EVRs, and (3) it
       was not uncommon for EVRs to be sent to
       employers for whom debtors did not work. Given
       this evidence, the EVR does not appear to have
       been sent to Ms. Beck’s employer in error, and
       she will not be disqualified from representing the
       class on this basis.

(App. 4a n.4 (internal citations to District Court record
omitted).) The court concluded adequacy of representation was
also satisfied, noting Beck “retained qualified counsel, appeared
for deposition, and verified answers to interrogatories.” (App.
5a n.5.) The District Court concluded the class could be
maintained under Rules 23(b)(1), (b)(2), and (b)(3). The court
did not acknowledge Beck had previously withdrawn her request
for certification under Rule 23(b)(2).

        Maximus petitioned for an interlocutory appeal under
Fed. R. Civ. P. 23(f), which we granted. Maximus contends if
it prevails on its bona fide error defense, Beck will be precluded
from recovery on the class’s claims. In its view, the District
Court abused its discretion in concluding Beck was a typical and
adequate class representative, and in certifying the class. Beck
responds her interests are aligned with those of the class. That
she was not the “Donna M. Beck” referred to in the Employment
Verification Request, she contends, is a factual variation that
does not create a conflict of interest between her and the class,
and does not render her inadequate or atypical as a class
representative.

                                8
                               II.

        The District Court had jurisdiction under 28 U.S.C. §
1331. We have jurisdiction under 28 U.S.C. § 1292(e). We
review a district court’s decision to certify a class for abuse of
discretion. In re Prudential Ins. Co. Am. Sales Practice Litig.,
148 F.3d 283, 299 (3d Cir. 1998). A district court abuses its
discretion if its decision “rests upon a clearly erroneous finding
of fact, an errant conclusion of law or an improper application
of law to fact.” Id. (quoting In re Ge. Motors Corp. Pick-Up
Truck Fuel Tank Products Liab. Litig., 55 F.3d 768, 783 (3d Cir.
1995)). A finding of fact is “clearly erroneous when the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” United
States v. Igbonwa, 120 F.3d 437, 440 (3d Cir. 1997) (quotations
omitted).

                               III.

                               A.

        To evaluate typicality, we ask “whether the named
plaintiffs’ claims are typical, in common-sense terms, of the
class, thus suggesting that the incentives of the plaintiffs are
aligned with those of the class.” Baby Neal v. Casey, 43 F.3d
48, 55 (3d Cir. 1994). “‘[F]actual differences will not render a
claim atypical if the claim arises from the same event or practice
or course of conduct that gives rise to the claims of the class
members, and if it is based on the same legal theory.’” Id. at 58
(quoting Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912,

                                9
923 (3d Cir. 1992)). The adequacy inquiry “serves to uncover
conflicts of interest between named parties and the class they
seek to represent.” Amchem Products, Inc. v. Windsor, 521 U.S.
591, 625 (1997). It “assures that the named plaintiffs’ claims
are not antagonistic to the class and that the attorneys for the
class representatives are experienced and qualified to prosecute
the claims on behalf of the entire class.” Baby Neal, 43 F.3d at
55.

       The Supreme Court has noted the typicality and adequacy
inquiries often “tend[] to merge” because both look to potential
conflicts and to “whether the named plaintiff’s claim and the
class claims are so interrelated that the interests of the class
members will be fairly and adequately protected in their
absence.” 2 Amchem, 521 U.S. at 626 n.20 (quoting Gen. Tel.
Co. Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982)). Because of
the similarity of these two inquiries, certain questions—like
whether a unique defense should defeat class certification—are
relevant under both.

       Maximus contends its alleged bona fide error defense
renders Beck neither typical nor adequate as a class

  2
    Nevertheless, a court should address each Rule 23(a) factor
in a certification decision. Despite areas of overlap, each factor
involves distinct considerations. The adequacy inquiry, for
example, “factors in competency and conflicts of class counsel,”
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 626 n.20
(1997), which the typicality requirement does not.

                               10
representative. Beck disputes that the alleged defense renders
her atypical, but does not address its effect on her adequacy of
representation. The District Court also addressed the issue
exclusively in terms of typicality. We believe the alleged unique
defense is relevant under both inquiries. Accordingly, we will
address both the typicality and adequacy requirements of Rule
23(a).

        Courts of appeals have held that unique defenses bear on
both the typicality and adequacy of a class representative. See,
e.g., Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)
(“Regardless of whether the issue is framed in terms of the
typicality of the representative’s claims . . . or the adequacy of
its representation . . . there is a danger that absent class members
will suffer if their representative is preoccupied with defenses
unique to it.”); J.H. Cohn & Co. v. Am. Appraisal Assocs., 628
F.2d 994, 999 (7th Cir. 1980) (“[T]he presence of even an
arguable defense peculiar to the named plaintiff or a small
subset of the plaintiff class may destroy the required typicality
of the class as well as bring into question the adequacy of the
named plaintiff’s representative.”). Commentators agree. See
7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure, § 1764 (3d ed. 2005) (noting
securities class actions in which a unique defense defeated
typicality); id. at § 1765 (citing cases in which a unique defense
defeated adequacy of representation); 5 James Wm. Moore et



                                11
al., Moore’s Federal Practice § 23.24[5] (3d ed. 2006)
(typicality); id. at § 23.25[2][b][iv] (adequacy of representation).

        Other courts of appeals emphasize, as do we, the
challenge presented by a defense unique to a class
representative—the representative’s interests might not be
aligned with those of the class, and the representative might
devote time and effort to the defense at the expense of issues
that are common and controlling for the class. See, e.g., Gary
Plastic Packaging, 903 F.2d at 180 (“[T]here is a danger that
absent class members will suffer if their representative is
preoccupied with defenses unique to it.”); see also Hanon v.
Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992); J.H.
Cohn & Co., 628 F.2d at 999. A class representative should
“not be permitted to impose such a disadvantage on the class.”
Koos v. First Nat’l Bank of Peoria, 496 F.2d 1162, 1165 (7th
Cir. 1974).

                                 B.

         District courts have discretion under Rule 23 to certify a
class. See Califano v. Yamasaki, 442 U.S. 682, 703 (1979). But
a trial court must clearly articulate its reasons, in part, so we can
adequately review the certification decision on appeal under
Rule 23(f). Under Rule 23(c)(1)(B), the trial court must
“include in class certification orders a clear and complete
summary of those claims, issues, or defenses subject to class
treatment.” Wachtel v. Guardian Life Ins. Co. of America, No.
04-4304, slip op. at 14 (3d Cir. June 30, 2006).


                                 12
       A class may be certified only if the court is “satisfied,
after a rigorous analysis, that the prerequisites of Rule 23(a)
have been satisfied.” Falcon, 457 U.S. at 161. In addition,
“parties seeking class certification must show that the action is
maintainable under Rule 23(b)(1), (2), or (3).” In re Warfarin
Sodium Antitrust Litig., 391 F.3d 516, 527 (3d Cir. 2004).
Depending on the circumstances, class certification questions
are sometimes “enmeshed in the factual and legal issues
comprising the plaintiff’s cause of action,” and “courts may
delve beyond the pleadings to determine whether the
requirements for class certification are satisfied.” Newton v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 167
(3d Cir. 2001) (quotations omitted).

        Here, we have difficulty discerning the District Court’s
reasons for concluding Beck was a typical and adequate class
representative. We note two problems in particular. First, we
are unclear whether the court concluded the alleged violation
was based on the content of the Employment Verification
Request or on the transmission of the form to third-party
employers. This issue, which the parties contest, is central to a
proper certification analysis in this case. Second, we are unclear
whether the court considered the three requirements of a
successful bona fide error defense in concluding that the
Employment Verification Request had not been sent to Inolex in
error, and that Beck should not be disqualified on these grounds
as a class representative. Because these two issues are closely
related, we address them together.


                               13
        To qualify for the bona fide error defense under the Fair
Debt Collection Practices Act, a defendant’s alleged violation of
the Act must have been “unintentional” and must have “resulted
from a bona fide error notwithstanding the maintenance of
procedures reasonably adapted to avoid such error.” 15 U.S.C.
§ 1692k(c). Accordingly, to avail itself of the defense, Maximus
will have to establish: (1) the alleged violation was
unintentional, (2) the alleged violation resulted from a bona fide
error, and (3) the bona fide error occurred despite procedures
designed to avoid such errors. See Johnson v. Riddle, 443 F.3d
723, 727–28 (10th Cir. 2006); Kort v. Diversified Collections
Servs., Inc., 394 F.3d 530, 537 (7th Cir. 2005).

       Beck contends the alleged violation resulted from the
content of the Employment Verification Request. She explains
the “standardized language” of the form gave rise to identical
claims on behalf of each class member, and concludes
“[w]hether the language of the EVR violates the [Act] is the
common overarching issue in this case.” 3 (Appellee’s Br. 11.)


   3
     At some points in her brief, Beck concedes the importance
of the communication of the Employment Verification Request.
She states, “[t]ypicality was satisfied because all the claims are
based on the sending of the improper EVR form to third-party
employers.” (Appellee’s Br. 12.) And in contending her
interests were aligned with those of the class, she states,
“Maximus sent the EVR to Ms. Beck’s employer just as it sent
the same EVR to Class members’ employers.” (Appellee’s Br.

                               14
Maximus takes the opposite position—that the transmission and
not the content of the Employer Verification Request gave rise
to the class’s claims. Maximus contends a debt collection
letter’s content alone cannot violate the Fair Debt Collection
Practices Act, and it is only when the content is communicated
to a consumer or a third party that a violation can occur.

        The District Court appears to have adopted each party’s
position at different points in its analysis.4 In the text of the
opinion, the court focused on the form’s transmission,
articulating the principal “question[] of law or fact common to
the class” as “whether defendant violated the Fair Debt
Collection Practices Act by sending an ‘Employment
Verification Request’ or a substantially same form to the
person’s employer(s) on or after the applicable date.” (App. 4a.)



15.)
       4
     The District Court briefly noted the parties’s respective
positions in footnote four, stating:
       [D]efendant says that sending the EVR to
       plaintiff’s employer was the result of a bona fide
       error and defensible. Plaintiff counters that it is
       irrelevant whether the communication was in
       error, because the violation—the prohibited
       language included in all EVRs—was not an error.
(App. 4a n.4 (internal citations to District Court record
omitted).)

                               15
This is Maximus’s position. But in footnote seven, the court
adopted Beck’s contrary position, focusing on the form’s
content as the basis of the violation. The court stated, “[i]t is
undisputed that the dispositive issue is whether the display of
‘MAXIMUS Collection Center’ at the top and bottom of the
EVR violated the [Act].” (App. 5a n.7.)

        The difference between the parties’ positions is central to
determining whether Maximus could possibly establish the three
requirements of a bona fide error defense, and possibly defeat
Beck’s typicality and adequacy as a class representative. The
record demonstrates the drafting of the Employment
Verification Request was neither unintentional nor the result of
a bona fide error under the first two requirements of the defense.
Maximus’s witnesses testified—and Maximus concedes—that
Maximus drafted the form’s language. But the transmission of
the form to Beck’s employer, Inolex, may have been both
unintentional and the result of a good faith, bona fide error on
the identity of the debtor “Donna M. Beck.” Maximus relied on
a credit agency that reported the debtor Beck worked for Inolex.
At issue is whether Maximus was aware this information was
incorrect.5


  5
    Maximus was arguably alerted to its mistake when Inolex’s
human resources department informed a Maximus representative
that Inolex did not employ the debtor “Donna M. Beck.” But at
oral argument, Maximus explained it is often informed a person
for whom it is looking is not located or employed at a certain

                                16
       If the error resulted from the transmission of the form,
and if Maximus can establish the third requirement of the
defense—adequate procedures to avoid such errors—Maximus
may have a bona fide error defense that might defeat Beck’s
typicality and adequacy. The District Court did not address this
possibility. Rather, it concluded “[b]ased on this evidence, the
EVR does not appear to have been sent to Ms. Beck’s employer
in error.” (App. 4a.) This conclusion does not follow from the
evidence the court cited, which constitutes the entirety of the
court’s analysis.6

       The court cited testimony that Maximus had no
procedures in place governing the sending of Employment
Verification Requests. It did not address Maximus’s contention
that Maximus “provided written materials, training, and
seminars to its employees about the pertinent provisions of the



place. Maximus contended if it were to believe every such
statement, it would be entirely unsuccessful in the debt
collection business.
  6
   The District Court cited testimony that: (1) Maximus drafted
the Employment Verification Request’s language; (2) Maximus
had no specific procedures governing the sending of
Employment Verification Requests; and (3) it was not
uncommon for Maximus to send Employment Verification
Requests to employers for whom the debtor in question did not
work.

                              17
[Fair Debt Collection Practices Act],” (Reply Br. 3), nor did it
acknowledge a Maximus employee’s testimony that through
“[s]eminars, lectures and materials and testing,” (App. 262a),
Maximus provided “continuous training.” (App. 264a.)

        At oral argument on appeal, Maximus conceded it had no
procedures in place “reasonably adapted to avoid” the specific
error that occurred here—a confusion between two individuals
with the same name. But it contends the “‘reasonable
procedures’ must be directed at addressing the enumerated [Fair
Debt Collection Practices Act] violation (here, improper
communication with a third party), not the exact act (here,
sending a unique type of EVR form).” (Reply Br. 2.) Maximus
cites Kort v. Diversified Collections Services, Inc. for the
proposition that the bona fide error defense “does not require
debt collectors to take every conceivable precaution to avoid
errors,” but rather “requires reasonable precaution.” 394 F.3d
at 539; see also Hyman v. Tate, 362 F.3d 965, 968 (7th Cir.
2004) (explaining a debt collector could have done more to
prevent the specific error, but “§ 1692k(c) only requires
collectors to adopt reasonable procedures” to avoid errors under
the Fair Debt Collection Practice Act). The District Court did
not consider whether Maximus’s training materials were
reasonably designed to avoid violations of the Fair Debt
Collection Practices Act, sufficient to establish a bona fide error
defense.

       We are unable to conclude whether the District Court
exercised its sound discretion in certifying the class with Beck

                                18
as the class representative. The court should have (1)
distinguished between a violation based on the content of the
Employment Verification Request and a violation based on its
transmission, and (2) addressed the three requirements of the
bona fide error defense. We will vacate the certification order
and remand for further consideration by the District Court,
consistent with this opinion.

                                C.

       Maximus contends the District Court erred by applying
the wrong standard in determining whether its alleged bona fide
error defense defeated class certification. It contends the court
required it to prove the defense in order to disqualify Beck as
the class representative. We are unclear what standard the
District Court applied in concluding the defense did not render
Beck atypical or inadequate.

         To defeat class certification, a defendant must show some
degree of likelihood a unique defense will play a significant role
at trial. If a court determines an asserted unique defense has no
merit, the defense will not preclude class certification. See, e.g.,
Hardy v. City Optical Inc., 39 F.3d 765, 770 (7th Cir. 1994).

       In Zenith Laboratories, Inc. v. Carter-Wallace, Inc., 530
F.2d 508 (3d Cir. 1976), we addressed what a defendant must
demonstrate to defeat class certification through a defense
unique to the class representative. Bulk purchasers of a patented
drug brought an action to recover royalties after discovering the
patent had been obtained fraudulently. 530 F.2d at 510. In

                                19
affirming the district court’s holding that a unique defense
defeated the adequacy of the putative class representative
(Zenith), we explained,

       If Zenith were allowed to represent the alleged
       class, Carter could assert defenses against it
       which would not be applicable to the class as a
       whole, such as res judicata based on the
       disposition of Zenith’s counterclaims in the
       earlier suit. Since these unique defenses could
       conceivably become the focus of the entire
       litigation and divert much of Zenith’s attention
       from the suit as a whole, the remaining members
       of the class could be severely disadvantaged by
       Zenith’s representation.

Id. at 512 (citing Koos, 496 F.2d at 1164–65).

        Several of our sister courts of appeals have addressed this
issue and articulated standards under which certification is
improper if the defense might become a “focus” or a “major
focus” of the litigation. See, e.g., Hanon, 976 F.2d at 509 (“[I]t
is predictable that a major focus of the litigation will be on a
defense unique to [the class representative]. Thus, [the class
representative] fails to satisfy the typicality requirement of Rule
23(a).”); Gary Plastic Packaging, 903 F.2d at 180 (“[C]lass
certification is inappropriate where a putative class
representative is subject to unique defenses which threaten to
become the focus of the litigation.”); Koos, 496 F.2d at 1164


                                20
(7th Cir. 1974) (“Where it is predictable that a major focus of
the litigation will be on an arguable defense unique to the named
plaintiff or a small subclass, then the named plaintiff is not a
proper class representative.”).

        We note that these cases set forth standards, while Zenith
appears to describe the defense at issue. Nonetheless, to the
extent Zenith does prescribe a standard, we believe it is
substantially similar to the standards set forth by our sister
courts of appeals. Though phrased slightly differently, they all
ask whether it is predictable that the unique defense will play a
major role in the litigation. Where a defense “could conceivably
become the focus of the entire litigation,” Zenith, 530 F.2d at
512, it also “threaten[s] to become the focus of the litigation.”
Gary Plastic Packaging, 903 F.2d at 180.               It is also
“predictable” that the defense will be “a major focus of the
litigation,” Hanon, 976 F.2d at 509; Koos, 496 F.2d at 1164.
We note that Zenith cites Koos, which articulates the standard as
disqualifying a named plaintiff “[w]here it is predictable that a
major focus of the litigation will be on an arguable defense
unique to the named plaintiff.” Koos, 496 F.2d at 1164. Despite
some variations in language, we believe all of these cases set
forth standards that are, in substance, the same.

        In articulating a single standard, we align ourselves with
our sister courts of appeals. A proposed class representative is
neither typical nor adequate if the representative is subject to a
unique defense that is likely to become a major focus of the
litigation. We believe this standard strikes the proper balance

                               21
between protecting class members from a representative who is
not focused on common concerns of the class, and protecting a
class representative from a defendant seeking to disqualify the
representative based on a speculative defense.

                              D.

       In addition to satisfying the requirements of Rule 23(a),
parties seeking class certification must establish the class is
maintainable under one of the categories of Rule 23(b). In re
Warfarin Sodium Antitrust Litig., 391 F.3d at 527. Each
category of Rule 23(b) has different purposes and different
requirements.

        Rule 23(b)(1) authorizes the use of class actions when
necessary to prevent potentially adverse effects of separate
actions. Subsection (b)(1)(A) addresses possible prejudice to
the party opposing the class and is intended to eliminate the
possibility of separate actions imposing inconsistent courses of
conduct on the defendant. Subsection 23(b)(1)(B) addresses
possible prejudice to members of the proposed class, and applies
if individual actions “would have the practical if not technical
effect of concluding the interests of the other members as well,
or of impairing the ability of the others to protect their own
interests.” 7AA Wright et al., supra, § 1774 (citation omitted).

        Rule 23(b)(2) authorizes class certification when “the
party opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with

                              22
respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). This
rule applies when the putative class seeks injunctive or
declaratory relief, and “does not extend to cases in which the
appropriate final relief relates exclusively or predominantly to
money damages.” Fed. R. Civ. P. 23(b)(2) advisory committee’s
note.

       Rule 23(b)(3) authorizes class certification when
“questions of law or fact common to the members of the class
predominate over any questions affecting only individual
members” and a class action would be “superior to other
available methods for the fair and efficient adjudication of the
controversy.” Fed. R. Civ. P. 23(b)(3). Class actions certified
under Rule 23(b)(3) are subject to specific notice and opt-out
requirements. See Fed. R. Civ. P. 23(c)(2)(B).7

       Here, the District Court certified the class under Rules
23(b)(1), 23(b)(2), and 23(b)(3). But it did not provide its

   7
       Fed. R. Civ. P. 23(c)(2)(B) provides, in part:
         For any class certified under Rule 23(b)(3), the
         court must direct to class members the best notice
         practicable under the circumstances, including
         individual notice to all members who can be
         identified through reasonable effort. The notice
         must concisely and clearly state . . . that the court
         will exclude from the class any member who
         requests exclusion, stating when and how
         members may elect to be excluded.

                                  23
reasons for doing so. It did not distinguish between the two
subsections of Rule 23(b)(1), nor did it acknowledge that Beck
withdrew her request for Rule 23(b)(2) certification in light of
our decision in Weiss v. Regal Collections, 385 F.3d 337,
341–42 (3d Cir. 2004), holding declaratory and injunctive
unavailable under the Fair Debt Collection Practices Act.

        We cannot discern why the District Court certified the
class under all categories of Rule 23(b). We note the conflict
between certification under Rules 23(b)(1) and (b)(2)—which
is binding on all class members—and under Rule
23(b)(3)—which allows class members to opt-out. On remand,
the District Court should further reconsider the class
certification issues and set forth its reasoning.

                              IV.

        For the reasons set forth, we will vacate the order
certifying the class and remand to the District Court for further
proceedings consistent with this opinion.




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