Second Circuit – Class Certification: Sykes, et al. v. Mel S. Harris & Associates, et al.

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U.S. Court of Appeals for the Second Circuit – Class Certification – Commonality – Unitary Course of Conduct

Sykes, et al. v. Mel S. Harris & Associates, et al.

13-2742-cv

Judges Jacobs, Calabresi and Pooler

Background: The defendants comprise a company that purchases consumer debts and a law firm with a significant debt-collection practice. They appeal from class certification of two classes in this case. The first comprises those who will be sued by the law firm, the second comprises those who have been sued by the law firm and against whom a default judgment was obtained. The defendants argue that by characterizing the common issue as one involving the false and fraudulent affidavits of merit, the district court impermissibly discounted the importance of the affidavits of service.

Ruling: The Second Circuit affirmed. The court held that the complaint makes clear that both sewer service and false affidavits of merit are necessary to effectuating the defendants’ alleged scheme. There was nothing in error for the court to determine that the defendants’ scheme, which had multiple components, was a unitary course of conduct.

Paul D. Clement of Bancroft, Miguel A. Estrada of Gibson, Dunn & Crutcher, and Jack Babchik of Babchik & Young for the defendants-appellants; Matthew D. Brinckerhoff of Emery Celli Brinckerhoff & Abady for the plaintiff-appellees