Presenting a live 90-minute webinar with interactive Q&A FDCPA Class Actions: Latest Litigation Developments Bringing and Defending Claims and Understanding the Impact of New Technologies and Large-Scale Debt Holdings THURSDAY, NOVEMBER 8, 2012 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: James A. Francis, Attorney, Francis & Mailman , Philadelphia Tomio Narita, Partner, Simmonds & Narita , San Francisco Donald Maurice, President, Maurice & Needleman , Flemington, N.J. Joshua B. Swigart, Hyde & Swigart , San Diego The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
Tips for Optimal Quality Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory and you are listening via your computer speakers, you may listen via the phone: dial 1-866-320-7825 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.
Continuing Education Credits FOR LIVE EVENT ONLY For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps: In the chat box, type (1) your company name and (2) the number of • attendees at your location Click the word balloon button to send •
FDCPA CLASS ACTIONS: L ATEST L ITIGATION D EVELOPMENTS Tomio Narita Joshua B. Swigart Simmonds & Narita LLP Hyde & Swigart tnarita@snllp.com (619) 233-7770 (415) 283-1010 James A. Francis Donald Maurice Francis & Mailman, P.C. Maurice & Needleman (215) 735-8600 dsm@mnlawpc.com (908) 237-4570
L EGAL D ISCLAIMER This information is not intended to be legal advice and may not be used as legal advice. Legal advice must be tailored to the specific circumstances of each case. Every effort has been made to assure this information is up-to-date. It is not intended to be a full and exhaustive explanation of the law in any area, however, nor should it be used to replace the advice of your own legal counsel
6 R EASONS FDCPA C ASES U NIQUELY S UITED FOR C LASS T REATMENT 1) Strict Liability Statute 2) Objective Least Sophisticated Consumer Standard 3) FDCPA specifically contemplates class actions as an enforcement mechanism 4) Class Representatives Can Recover Individual AND Class Damages; 5) Cases Are Premised Upon Form Collection Communications and Automated Practices 6 6) Damages Factors are Uniform;
FDCPA IS A STRICT LIABILITY STATUTE Intent/knowledge/scienter irrelevant for most provisions (some exceptions — 1692d(5), e(4) and e(5) and bona fide error defense); No need for individualized ―reasonable person‖/negligence analysis; See e.g . McCullough v. Johnson, Rodenburg & Lauinger, LLC , 637 F.3d 939 (9 th Cir. 2011) 7
L EAST S OPHISTICATED C ONSUMER S TANDARD Letters/Communications Interpreted by an objective standard of the ―least sophisticated consumer‖ No need for individual class member inquiries See Larocque v. TRS Recovery Services, Inc. , __ F.R.D.___, 2012 WL 2921191 (D. Me. July 17, 2012 (certifying 3 classes) 8
FDCPA C ONTEMPLATES C LASS A CTIONS DCs liable for: ―in the case of a class action, such amount for each named plaintiff as could be recovered [in an individual action] AND ―such amount as the court may allow for all other class members, without regarding to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector ‖. Section 1692k(a)(2)(B). See also Weiss v. Regal Collections , 385 F.3d 337, 345 (3d Cir. 2004) (―[r] epresentative actions, therefore, appear to be fundamental to the statutory structure of the FDCPA ‖). 9
CLASS REPS CAN RECOVER BOTH INDIVIDUAL AND CLASS DAMAGES Section 1692k(a)(2)(B) Relaxes Fed. R. Civ. P Rule 23 adequacy requirement; Reps can explicitly recover more than Class Members See Fry v. Hayt, Hayt & Landau , 198 F.R.D. 461, 472 (E.D. Pa. 2000) 10
FORM COMMUNICATIONS AND AUTOMATED PRATICES Collection Industry Premised Upon Use of: • form collection letters • automated calls •Use of ―talk offs‖ and ―scripts 11
O VERWHELMING AUTHORITY FOR CERTIFYING FDCPA CASES PREMISED UPON FORM COLLECTION LETTERS See Maxwell v. Arrow Fin. Servs., LLC, 2004 WL 719278 (N.D. Ill. Mar. 31, 2004) (certifying statutory damages MFDCPA class based upon uniform collection practices); Gordon v. Corporate Receivables , 2010 WL 376386, *2 (D. R.I. Jan. 27, 2010) (commonality requirement ―easily met‖ and R. 23(b)(3) superiority and predominance found resulting in a certified class of recipients of form letters which were in violation of the FDCPA); Pettway v. Harmon Law Offices, P.C. , 2005 WL 2365331, *12 (D. Mass. Sep. 27, 2005) (recipients of a form letter in violation of the FDCPA certified as a class); Silva v. National Telewire Corp ., 2000 WL 1480269, *2-4 (D.N.H. Sept. 22, 2000) (class certified where class included recipients of a form letter found in violation of the FDCPA); Garland v. Cohen & Krassner , 2011 WL 6010211, *6 (E.D.N.Y. Nov. 29, 2011) (class certification predicated on a form letter which violated the FDCPA); 12
O VERWHELMING AUTHORITY FOR CERTIFYING FDCPA CASES PREMISED UPON FORM COLLECTION LETTERS see also Weiss v. Regal Collections , 385 F.3d 337, 345 (3d Cir. 2004) (―[r]epresentative actions, therefore, appear to be fundamental to the statutory structure of the FDCPA‖); Castro v. Collecto, Inc. , 634 F.3d 779, 782 (5th Cir. 2011) (certified FDCPA class predicated upon form letters sent to consumers that violated the FDCPA); Murray v. GMAC Mortg. Corp. , 434 F.3d 948, 952-53 (7th Cir. 2006) (class certification statutory damages, under sister statute FCRA, appropriate in case of form letter that allegedly failed to make proper firm offer disclosure); Gonzales v. Arrow Financial Services, LLC , 233 F.R.D. 577 (S.D. Cal. 2006) (certifying class of recipients of a form letter issued by defendant debt collector); Gonzales v. Arrow Financial Services, LLC , 660 F.3d 1055, 1064 (9th Cir. 2011) (Ninth Circuit declined review of class certification); Hunt v. Check Recovery Systems, Inc. , 241 F.R.D. 505 (N.D. Cal. Mar. 21, 2007) (certification of an FDCPA class predicated on form letter sent to members to collect for fees stemming from dishonored checks); Petrolito v. Arrow Financial Services, LLC , 221 F.R.D. 303 (D. Conn. 2004) (uniform collection practice that violated FDCPA presents certifiable class action). 13
D AMAGES F ACTORS U NIFORM Statutory Damages Factors Are Defendant Oriented: • Frequency and persistence of non- compliance; • Nature of noncompliance; • Resources of the debt collector; • Number of persons adversely affected; • Extent to which action was intentional; Section 1692k(b)(2) 14
C HALLENGING T HE C LASS R EP The class representative’s claims must be ―typical‖ of other class members and the rep must be ―adequate‖ – i.e., they will ―fairly and adequately protect the interests of the class.‖ See Fed. Rule Civ. Proc. 23(a)(3), 23(a)(4). Defendants look for ways that the class rep claims will distract from the litigation or arguments that the rep has interests that conflict with class Careful research prior to deposition and 15 taking a thorough deposition is key
C LASS R EP H ELD N OT A DEQUATE Beck v. Maximus, Inc., 457 F.3d 291 (3d Cir. 2006) (remanding to determine if BFE defense rendered class rep atypical and inadequate) Savino v. Computer Credit, Inc ., 164 F.3d 81 (2d Cir. 1998) (denying cert; rep testified inconsistently on whether he received letter at issue) Dotson v. Portfolio Recovery Associates , 2009 WL 1559813 (E.D. Pa. June 3, 2009) (denying cert; unique defenses re: plaintiff’s credibility and cognitive disabilities) 16
C LASS REP NOT ADEQUATE ( CONT .) Fried v. National Action Financial Servs., Inc ., 2011 WL 1547257 (D.N.J. April 20, 2011) (unique defense; class rep consented to third party contact) Wymer v. Huntington Bank Charleston, N.A ., 2011 WL 5526314 (S.D.W.Va. Nov. 14, 2011) (unique defense; whether rep actually owed a ―debt‖ following his bankruptcy) Richburg v. Palisades Collection LLC , 247 F.R.D. 457 (E.D. Pa. Jan. 28, 2008) (unique defense; whether class rep acknowledged debt and tolled SOL) 17
C LASS R EP F OUND A DEQUATE Meyer v. Portfolio Recovery Associates , _ F.3d _, 2012 WL 4840814 (9th Cir. 2012) (TCPA class certified; class rep had multiple criminal convictions for offenses involving dishonesty) Sykes v. Mel Harris And Associates , 2012 WL 3834802 (S.D.N.Y. Sept. 4, 2012) (FDCPA class certified; BFE defenses, validity of debt not major focus of case) Herrera v. LCS Fin. Servs , 274 F.R.D. 666 (N.D. Cal. June 1, 2011) (FDCPA class certified; class rep committed perjury on loan application) 18
Recommend
More recommend
