Judge Denies Class Certification Over Plaintiff’s Adequacy Issues

A District Court judge in New York has granted a defendant’s motion to deny class certification in a Fair Debt Collection Practices Act case after questioning the plaintiff’s attorney’s pattern of abandoning cases and just how involved the named plaintiff was in the suit in the first place.

A copy of the ruling in the case of Russell v. Forster & Garbus can be accessed by clicking here.

During deposition, the plaintiff admitted that it was his wife — who was not named in the suit — who retained Mitchell Pashkin as his lawyer, and that he had not seen the original complaint prior to being deposed. The plaintiff also said he never signed a retainer agreement with the lawyer and only spoke to him for the first time two months before the deposition, which was nearly 18 months after the complaint had been filed.

When she was deposed, the wife said that Pashkin agreed to “take care” of a lawsuit filed against her husband by one of the other defendants in relation to an unpaid debt “in exchange for us allowing him” to file the suit against the defendants.

Both the plaintiff and his wife said that the attorney never instructed them about the duties of being a class representative and the plaintiff said he did not know how the attorney was being paid.

Making short work of the plaintiff’s adequacy to be the class representative — “Plaintiff’s deposition testimony makes clear that he does not have an ‘interest in vigorously pursuing the claims of the class,’ ” — Judge Joanna Seybert of the District Court for the Eastern District of New York also had some words for Pashkin in her ruling.

“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 representatives,” Judge Seybert wrote. “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.’ “

Later, Judge Seybert wrote, “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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