1. law, govt and politics

You Have Class! How to Identify
Potential Class Actions in Your
Everyday Practice
Supplemental presentation materials
David T. Butsch
Phone: 314-863-5700
E-mail: [email protected]
Christopher E. Roberts
Phone: 314-863-5700
E-mail: [email protected]
24--11
1
Table of Contents
Class Action Requirements ...................................................................................... 2
Cases to Avoid ............................................................................................................. 6
Cases Suitable for Class Certification Treatment .............................................. 8
Missouri Merchandising Practices Act ................................................................. 9
Telephone Consumer Protection Act................................................................... 12
Fair Debt Collection Practices Act....................................................................... 16
Fundamentals and Secondary Sources ............................................................... 23
© 2014
24--12
2
Class Action Requirements
1)
Missouri Supreme Court Rule 52.08 and Federal Rule of Civil
Procedure 23 impose the same requirements.
Class Certification Requirements
Numerosity – The class must be “so numerous that joinder of all
members is impracticable.”
Note: There is not a fixed rule as to the number of class
members that must be part of the class.
The
determination is made on a case-by-case basis.
Doyle v. Fluor Corp., 199 S.W.3d 784 (Mo. App. E.D. 2006)
(approving certification of a class of over 400 persons)
Citizens Banking Co. v. Monticello State Bank, 143 F.2d
261 (8th Cir. 1944) (approving certification of a class of 40
members).
Commonality – There must be “questions of law or fact common to the
class.”
Note: Relief to the class members does not need to be uniform,
there simply needs to be an issue of law or fact common to
the class.
Crain v. Missouri State Employees’ Retirement System,
613 S.W.2d 912 (Mo. App. W.D. 1981) (recognizing that
there may be different categories of class members as long
as a common question of law or fact exists).
© 2014
24--13
3
Typicality – The claims or defenses of the class representatives must
“be typical of the claims or defenses of the class.”
Note: Even if damages vary, the typicality requirement is
satisfied if the class members are damaged in the same
way.
Hale v. Wal-Mart Stores, Inc., 231 S.W.3d 215 (Mo. App.
W.D. 2007) (even though employees missed mandatory
break times for different reasons, the typicality
requirement was satisfied because the employer engaged
in similar misconduct as to all the employees).
Adequacy – The representative parties (the class representative and
the class counsel) must “fairly and adequately protect the interests of
the class.”
Note: The overarching principle of the adequacy requirement is
to avoid conflicts or potential conflicts of interest between
the class representative and the class members and
conflicts or potential conflicts of interest between class
counsel and the class members. The class representative
should also understand the basics of the case and stay upto-date on the status of the litigation, respond to
discovery, and sit for his/her deposition.
See Dale v, DaimlerChrysler Corp., 204 S.W.3d 151 (Mo.
App. W.D. 2006) (discussing adequacy of class
representative).
See State ex rel. Union Planters Bank, N.A. v. Kendrick,
142 S.W.3d 729 (Mo. banc 2004) (discussing adequacy of
class counsel).
© 2014
24--14
4
Relevant Rule - Rule 52.08 (FRCP 23 imposes the same requirements)
(a) Prerequisites to a Class Action. One or more members of a class
may sue or be sued as representative parties on behalf of all only if
(1) the class is so numerous that joinder of all members is
impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect
the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a
class action if the prerequisites of subdivision (a) are satisfied, and in
addition:
(1) the prosecution of separate actions by or against individual
members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to
individual members of the class which would establish
incompatible standards of conduct for the party opposing
the class, or
(B) adjudications with respect to individual members of
the class which would as a practical matter be dispositive
of the interests of the other members not parties to the
adjudications or substantially impair or impede their
ability to protect their interests; or
(2) 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 respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to
the members of the class predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient
© 2014
24--15
5
adjudication of the controversy. The matters pertinent to the
findings include:
(A) the interest of members of the class in individually
controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already commenced by or against members of
the class;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the
management of a class action.
© 2014
24--16
6
Cases to Avoid
1)
Claims requiring reliance
Relevant case law:
In re St. Jude Medical, Inc., 522 F.3d 836 (8th Cir. 2008) (Class
certification is improper when individual questions of reliance are an
issue.)
2)
Contracts with arbitration provisions – Arbitration is difficult to avoid,
especially if the matter is in federal court.
Relevant case law:
AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011). AT&T’s
form agreement contained a provision requiring that any disputes be
arbitrated. The provision also prohibited class actions. The lower
court found California law prohibited class action waivers. The
Supreme Court of the United States found that the Federal Arbitration
Act preempted California law and enforced the arbitration clause.
Brewer v. Missouri Title Loans, 364 S.W.3d 486 (Mo. banc 2012). The
Supreme Court of Missouri refused to enforce a class action arbitration
waiver on the basis that the agreement was unconscionable under
Missouri contract law. In reaching this conclusion, the Court noted
there was no incentive for an attorney to take the case on an individual
basis, the agreement was non-negotiable and one-sided, no customer
had arbitrated a dispute and the customers were left with few
remedies.
3)
Claims based on an oral representation
Relevant case law:
Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911 (Mo. App. E.D.
1983) (Holding that “[a] fraudulent misrepresentation case, involving a
‘diversified’
promise
consisting
of
different oral and
written representations made to people over a long period of time, by
its very nature is unsuitable as a class action.”)
© 2014
24--17
7
4)
Personal injury claims
Relevant case law:
Smith v. Missouri Highways and Transp. Com’n., 372 S.W.3d 90 (Mo.
App. S.D. 2012) (Holding that “[b]ecause of the fact-specific nature of
causation, personal injury cases, even those involving large numbers of
plaintiffs, are rarely amendable to class action treatment.”)
5)
Cases that involve the application of the law of multiple states
Relevant case law:
State ex rel. Am. Fam. Mut. Ins. Co. v. Clark, 106 S.W.3d 483 (Mo. banc
2003). The Supreme Court of Missouri refused to certify a portion of a
class of persons whose insurance contracts would be required to be
interpreted in accordance with other state’s laws. Notably, the Court
affirmed certification of the class whose contracts were subject to
Missouri law only.
6)
Cases where class members cannot be ascertained
Relevant case law:
State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d 855 (Mo. banc 2008).
Bottled Diet Coke is sweetened with aspartame. Fountain Diet Coke is
sweetened with a combination of aspartame and saccharin. The
plaintiff argued that Coca-Cola misrepresented and omitted material
information concerning the types of sweeteners used in fountain Diet
Coke. The plaintiff moved to certify a class of persons who purchased
fountain Diet Coke. The lower court certified the class. The Supreme
Court of Missouri reversed the lower court’s certification. In reaching
this conclusion, the Court determined that the class could not be
ascertained because there was no way of determining who did not
approve of fountain Diet Coke containing saccharin. Essentially, the
class could include millions of unharmed class members.
© 2014
24--18
8
Cases Suitable for Class Certification Treatment
1)
Form documents
Relevant case law:
Glen v. Fairway Independent Mortg. Corp., 265 F.R.D. 474 (E.D. Mo.
2010) (court certified a class of Missouri consumers who were not
advised in their good-faith estimates that the defendant received
additional compensation from a lender).
State ex rel. American Family Ins. Co. v. Clark, 106 S.W.3d 483 (Mo.
banc 2003) (certification of Missouri consumers appropriate in case
involving defendant’s breach of a form insurance contract).
2)
Form communication
Relevant case law:
Jackson v. Collections Acquisition Co., LLC, 2013 WL 5592603 (E.D.
Mo. Oct. 9, 2013) (certification of class of persons who received a
dunning letter that did not identify the debt collector and did not state
that the letter was an attempt to collect a debt).
3)
Pattern of unlawful conduct
Relevant case law:
Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG (W.D. Mo.
Feb. 9, 2012) (certification of class of employees in a “donning and
doffing” case brought under Missouri’s Minimum Wage Law).
4)
Uniform unlawful charges
Relevant case law:
Finnegan v. Old Republic Title Co. of St. Louis, Inc., 246 S.W.3d 928
(Mo. banc 2008) (holding that R.S. Mo. §486.350.1 only allows notaries
to charge a fee of $2 if the signature is notarized and the notary
properly records the notarial act in a notary journal).
© 2014
24--19
9
Missouri Merchandising Practices Act (MMPA)
1)
Damages – R.S. Mo. §407.025.1 and §407.025.2 (expressly permits class
action treatment)
Relevant case law:
Sunset Pools of St. Louis, Inc. v. Schaefer, 869 S.W.2d 883 (Mo. App.
E.D. 1994). Actual damages are calculated using the “benefit of the
bargain rule.” This is the difference between the value of the
merchandise promised and the value of the merchandise actually
received.
Freeman Health System v. Wass, 124 S.W.3d 504 (Mo. App. S.D. 2004)
(Holding that a person must actually purchase merchandise to state a
claim for relief under the MMPA. The Court held that a consumer who
was allegedly overcharged for merchandise but did not purchase the
merchandise, failed to state a claim under the MMPA).
Berry v. Volkswagen Group of America, Inc., 397 S.W.3d 425 (Mo. banc
2013) (affirming trial court’s award of attorney’s fees based on
multiplier of lodestar amount).
Relevant statutory language:
1. Any person who purchases or leases merchandise primarily for
personal, family or household purposes and thereby suffers an
ascertainable loss of money or property, real or personal, as
a result of the use or employment by another person of a method,
act or practice declared unlawful by section 407.020, may bring a
private civil action in either the circuit court of the county in which
the seller or lessor resides or in which the transaction complained of
took place, to recover actual damages. The court may, in its
discretion, award punitive damages and may award to the
prevailing party attorney's fees, based on the amount of
time reasonably expended, and may provide such equitable
relief as it deems necessary or proper.
2. Persons entitled to bring an action pursuant to subsection 1
of this section may, if the unlawful method, act or practice
has caused similar injury to numerous other persons,
institute an action as representative or representatives of a
class against one or more defendants as representatives of a
class, and the petition shall allege such facts as will show that
© 2014
24--20
10
these persons or the named defendants specifically named and
served with process have been fairly chosen and adequately and
fairly represent the whole class, to recover damages as provided for
in subsection 1 of this section. The plaintiff shall be required to
prove such allegations, unless all of the members of the class have
entered their appearance, and it shall not be sufficient to prove
such facts by the admission or admissions of the defendants who
have entered their appearance. In any action brought pursuant
to this section, the court may in its discretion order, in
addition to damages, injunction or other equitable relief
and reasonable attorney's fees.
2)
Prohibited conduct – R.S. Mo. §407.020.1
Relevant case law (class certification granted):
Craft v. Phillip Morris Companies, Inc., 190 S.W.3d 368 (Mo. App. E.D.
2005) (certification of class of Missouri consumers who purchased
“light” cigarettes affirmed by Missouri Court of Appeals).
Hope v. Nissan North America, Inc., 353 S.W.3d 68 (Mo. App. W.D.
2011) (certification of class of Missouri consumers who purchased
Nissan automobiles with defective dashboards affirmed by Missouri
Court of Appeals).
Plubell v. Merck & Co., Inc., 289 S.W.3d 707 (Mo. App. W.D. 2009)
(certification of class of Missouri consumers who purchased the drug
Vioxx affirmed by Missouri Court of Appeals).
Relevant statutory language, regulations and verdict director:
R.S. Mo. §407.020.1 The act, use or employment by any person of any deception,
fraud, false pretense, false promise, misrepresentation, unfair
practice or the concealment, suppression, or omission of any
material fact in connection with the sale or advertisement of
any merchandise in trade or commerce or the solicitation of
any funds for any charitable purpose, as defined in section
407.453, in or from the state of Missouri, is declared to be an
unlawful practice. The use by any person, in connection with the
sale or advertisement of any merchandise in trade or commerce or the
solicitation of any funds for any charitable purpose, as defined in
section 407.453, in or from the state of Missouri of the fact that the
© 2014
24--21
11
attorney general has approved any filing required by this chapter as
the approval, sanction or endorsement of any activity, project or action
of such person, is declared to be an unlawful practice. Any act, use or
employment declared unlawful by this subsection violates this
subsection whether committed before, during or after the sale,
advertisement or solicitation.
See 15 CSR §§ 60-9 et seq. (regulations pertaining to the MMPA)
MAI 39.01 Verdict Directing – Violation of Missouri
Merchandising Practices Act (Effective January 1, 2014)
Your verdict must be for plaintiff if you believe:
First, plaintiff ["purchased", "leased"]1 (here identify merchandise
afforded protection under the statute)2, and
Second, such ["purchase", "lease"]1 was primarily for ["personal",
"family", "household"]3 purposes, and
Third, in connection with the ["sale", "lease", "advertisement"]4 of (here
identify merchandise) defendant (here insert the alleged method, act or
practice declared unlawful by § 407.020, RSMo, such as
"misrepresented the (here repeat the identification from Paragraph
First)" or "concealed a material fact")5, and
Fourth, as a direct result of such conduct, plaintiff sustained damage.
© 2014
24--22
12
Telephone Consumer Protection Act (TCPA)
1)
Damages – 47 U.S.C. §227(b)(3)
Relevant case law:
See generally Charvat v. GVN Michigan, Inc., 561 F.3d 623 (6th Cir.
2009) (holding that damages are awarded on a per-call basis).
Relevant statutory language:
(3) Private right of action
A person or entity may, if otherwise permitted by the laws or rules of court of
a State, bring in an appropriate court of that State—
(A) an action based on a violation of this subsection or the regulations
prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation,
or to receive $500 in damages for each such violation, whichever is
greater, or
(C) both such actions.
If the court finds that the defendant willfully or knowingly violated
this subsection or the regulations prescribed under this subsection, the
court may, in its discretion, increase the amount of the award to an
amount equal to not more than 3 times the amount available under
subparagraph (B) of this paragraph.
2)
Prohibited Conduct (Calls and Texts) – 47 U.S.C. §227(b)(1)(A)-(B)
Relevant case law/rulings:
See generally Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009)
(holding that a text message is considered a “call” under the TCPA).
© 2014
24--23
13
See In the Matter of Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, FCC 12-21, CG Docket 02278 (Adopted Feb 15, 2012) (Effective October 15, 2013, a consumer
must provide express to receive telemarketing robocalls. Prior to
October 15, 2013, a business could call a consumer if the parties had
an established business relationship.)
Relevant statutory language:
(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States, or any
person outside the United States if the recipient is within the United
States—
(A) to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called
party) using any automatic telephone dialing system or an
artificial or prerecorded voice—
(i) to any emergency telephone line
line and any emergency line of
physician or service office, health
control center, or fire protection
agency);
(including any “911”
a hospital, medical
care facility, poison
or law enforcement
(ii) to the telephone line of any guest room or patient room
of a hospital, health care facility, elderly home, or similar
establishment; or
(iii) to any telephone number assigned to a paging service,
cellular telephone service, specialized mobile radio
service, or other radio common carrier service, or any
service for which the called party is charged for the call;
(B) to initiate any telephone call to any residential telephone
line using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party, unless the
call is initiated for emergency purposes or is exempted by rule or
order by the Commission under paragraph (2)(B).
© 2014
24--24
14
3)
Prohibited Conduct (Faxes) – 47 U.S.C. §227(b)(1)(C)-(D)
Relevant case law:
St. Louis Heart Center, Inc. v. Vein Centers for Excellence, Inc., 2013
WL 6498245, 4:12-CV-174 (E.D. Mo. Dec. 11, 2013) (certifying class of
persons and entities that received a fax with an improper opt-out
notice).
Relevant statutory language:
(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States, or any
person outside the United States if the recipient is within the United
States— . . .
(C) to use any telephone facsimile machine, computer, or other
device to send, to a telephone facsimile machine, an unsolicited
advertisement, unless—
(i) the unsolicited advertisement is from a sender with an
established business relationship with the recipient;
(ii) the sender obtained the number of the telephone
facsimile machine through—
(I) the voluntary communication of such number,
within the context of such established business
relationship, from the recipient of the unsolicited
advertisement, or
(II) a directory, advertisement, or site on the
Internet to which the recipient voluntarily agreed
to make available its facsimile number for public
distribution,
except that this clause shall not apply in the case of an
unsolicited advertisement that is sent based on an
© 2014
24--25
15
established business relationship with the recipient that
was in existence before July 9, 2005, if the sender
possessed the facsimile machine number of the recipient
before July 9, 2005; and
(iii) the unsolicited advertisement contains a notice
meeting the requirements under paragraph (2)(D),
except that the exception under clauses (i) and (ii) shall
not apply with respect to an unsolicited advertisement
sent to a telephone facsimile machine by a sender to
whom a request has been made not to send future
unsolicited advertisements to such telephone facsimile
machine that complies with the requirements under
paragraph (2)(E); or
(D) to use an automatic telephone dialing system in such a way
that two or more telephone lines of a multi-line business are
engaged simultaneously.
© 2014
24--26
16
Fair Debt Collection Practices Act (FDCPA)
1)
Damages – 15 U.S.C. §1692k
Relevant case law:
Sanders v. Jackson, 209 F.3d 998 (7th Cir. 2000) (class action recovery
limited to the lesser of $500,000.00 or 1% of the defendant’s net worth;
a defendant’s net worth is determined by comparing the difference
between its assets and liabilities).
Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998) (class members can
receive actual and statutory damages).
Relevant statutory language:
(a) Amount of damages
Except as otherwise provided by this section, any debt collector who fails to
comply with any provision of this subchapter with respect to any person is
liable to such person in an amount equal to the sum of —
(1) any actual damage sustained by such person as a result of such failure;
(2)
(A) in the case of any action by an individual, such additional damages
as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named
plaintiff as could be recovered under subparagraph (A), and (ii)
such amount as the court may allow for all other class members,
without regard 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; and
(3) in the case of any successful action to enforce the foregoing liability,
the costs of the action, together with a reasonable attorney’s fee as
determined by the court. On a finding by the court that an action
under this section was brought in bad faith and for the purpose of
harassment, the court may award to the defendant attorney’s fees
reasonable in relation to the work expended and costs.
© 2014
24--27
17
(b) Factors considered by court
In determining the amount of liability in any action under subsection (a) of
this section, the court shall consider, among other relevant factors — . . .
(2) in any class action under subsection (a)(2)(B) of this section, the
frequency and persistence of noncompliance by the debt collector, the
nature of such noncompliance, the resources of the debt collector, the
number of persons adversely affected, and the extent to which the debt
collector’s noncompliance was intentional.
2)
False or Misleading Misrepresentations – 15 U.S.C. §1692e
Relevant case law:
McMahon v. LVNV Funding, LLC, 744 F.3d 1010 (7th Cir. 2014)
(Cause of action stated under 15 U.S.C. §1692(e)(2)(A) and §1692e(5)
when debt collector sent settlement offer on time-barred debt and did
not advise the debtor that the debtor could not be sued on the debt).
Note: The McMahon decision somewhat conflicts with decisions
from the third and eighth circuits. See Huertas v. Galaxy
Asset Mgmt., 641 F.3d 28 (3d Cir. 2011) and Freyermuth
v. Credit Bureau Servs., Inc., 248 F.3d 767 (8th Cir. 2001).
The Freyermuth court held that a debt collector who sent
a dunning letter on a time-barred debt did not violate the
FDCPA because the letter did not threaten legal action
and no legal action had been undertaken.
Relevant statutory language:
A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.
Without limiting the general application of the foregoing, the following
conduct is a violation of this section:
(1) The false representation or implication that the debt collector is
vouched for, bonded by, or affiliated with the United States or any
State, including the use of any badge, uniform, or facsimile thereof.
© 2014
24--28
18
(2) The false representation of—
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully
received by any debt collector for the collection of a debt.
(3) The false representation or implication that any individual is an
attorney or that any communication is from an attorney.
(4) The representation or implication that nonpayment of any debt will
result in the arrest or imprisonment of any person or the seizure,
garnishment, attachment, or sale of any property or wages of any
person unless such action is lawful and the debt collector or creditor
intends to take such action.
(5) The threat to take any action that cannot legally be taken or that is
not intended to be taken.
(6) The false representation or implication that a sale, referral, or other
transfer of any interest in a debt shall cause the consumer to—
(A) lose any claim or defense to payment of the debt; or
(B) become subject to any practice prohibited by this subchapter.
(7) The false representation or implication that the consumer committed
any crime or other conduct in order to disgrace the consumer.
(8) Communicating or threatening to communicate to any person credit
information which is known or which should be known to be false,
including the failure to communicate that a disputed debt is disputed.
(9) The use or distribution of any written communication which simulates
or is falsely represented to be a document authorized, issued, or
approved by any court, official, or agency of the United States or any
State, or which creates a false impression as to its source,
authorization, or approval.
© 2014
24--29
19
(10)
The use of any false representation or deceptive means to collect
or attempt to collect any debt or to obtain information concerning a
consumer.
(11)
The failure to disclose in the initial written communication with
the consumer and, in addition, if the initial communication with the
consumer is oral, in that initial oral communication, that the debt
collector is attempting to collect a debt and that any information
obtained will be used for that purpose, and the failure to disclose in
subsequent communications that the communication is from a debt
collector, except that this paragraph shall not apply to a formal
pleading made in connection with a legal action.
(12)
The false representation or implication that accounts have been
turned over to innocent purchasers for value.
(13)
The false representation or implication that documents are legal
process.
(14)
The use of any business, company, or organization name other
than the true name of the debt collector’s business, company, or
organization.
(15)
The false representation or implication that documents are not
legal process forms or do not require action by the consumer.
(16) The false representation or implication that a debt collector operates
or is employed by a consumer reporting agency as defined by
section 1681a (f) of this title.
3)
Unfair Practices – 15 U.S.C. §1692f
Relevant case law:
Quinteros v. MBI Associates, Inc., 2014 WL 793138 (E.D. N.Y. Feb. 28,
2014) (Cause of action stated under 15 U.S.C. §1692f(1) and §1692e(2)
for dunning letter advising debtor that they would be charged a $5
processing fee for a payment made by credit card when such charge
was not agreed to or authorized by law).
© 2014
24--30
20
Harbison v. Litow & Pech, P.C., 2013 WL 1095654 (E.D. Mo. Mar. 18,
2013) (Cause of action stated against law firm and process server
under 15 U.S.C. §1692f for the preparation and use of false and
defective return of service affidavits).
Relevant statutory language:
A debt collector may not use unfair or unconscionable means to collect or
attempt to collect any debt. Without limiting the general application of the
foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any interest, fee, charge, or
expense incidental to the principal obligation) unless such amount is
expressly authorized by the agreement creating the debt or permitted
by law.
(2) The acceptance by a debt collector from any person of a check or other
payment instrument postdated by more than five days unless such
person is notified in writing of the debt collector's intent to deposit
such check or instrument not more than ten nor less than three
business days prior to such deposit.
(3) The solicitation by a debt collector of any postdated check or other
postdated payment instrument for the purpose of threatening or
instituting criminal prosecution.
(4) Depositing or threatening to deposit any postdated check or other
postdated payment instrument prior to the date on such check or
instrument.
(5) Causing charges to be made to any person for communications by
concealment of the true purpose of the communication. Such charges
include, but are not limited to, collect telephone calls and telegram
fees.
(6) Taking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if -(A) there is no present right to possession of the property claimed as
collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
© 2014
24--31
21
(C) the property is exempt by law from such dispossession or
disablement.
(7) Communicating with a consumer regarding a debt by post card.
(8) Using any language or symbol, other than the debt collector's address,
on any envelope when communicating with a consumer by use of the
mails or by telegram, except that a debt collector may use his business
name if such name does not indicate that he is in the debt collection
business.
4)
Validation Requirements – 15 U.S.C. §1692g
Relevant case law:
Harlan v. Transworld Systems, Inc., 2014 WL 1378825 (E.D. Pa. Apr.
14, 2014) (FDCPA claim stated for a validation notice on the back of a
Dunning letter because the notice was overshadowed by other
language in the letter).
Clark v. Absolute Collection Service, Inc., 2014 WL 341943 (4th Cir.
Jan. 31, 2014); Busch v. Valarity, LLC, 2014 WL 466221 (E.D. Mo. Feb.
5, 2014) (Both cases held that a cause of action was stated under the
FDCPA for a dunning letter sent to debtor that required the consumer
to dispute the validity of the debt in writing. The courts essentially
recognized that a consumer could orally dispute a debt).
Note: There is a circuit split on this issue. The Second, Fourth
and Ninth circuits hold that a consumer can orally
dispute the validity of a debt. The Third circuit holds that
a consumer must dispute the validity of the debt in
writing. This issue may make its way to the Supreme
Court of the United States.
Relevant statutory language:
(a) Notice of debt; contents
Within five days after the initial communication with a consumer in
connection with the collection of any debt, a debt collector shall, unless the
following information is contained in the initial communication or the
consumer has paid the debt, send the consumer a written notice containing—
(1) the amount of the debt;
© 2014
24--32
22
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt
of the notice, disputes the validity of the debt, or any portion thereof,
the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing
within the thirty-day period that the debt, or any portion thereof, is
disputed, the debt collector will obtain verification of the debt or a copy
of a judgment against the consumer and a copy of such verification or
judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the
thirty-day period, the debt collector will provide the consumer with the
name and address of the original creditor, if different from the current
creditor.
© 2014
24--33
23
Fundamentals & Secondary Sources
Missouri Supreme Court Rule 52.08
Federal Rule of Civil Procedure 23
Class Action Fairness Act – 28 U.S.C. §1332(d)
Newberg on Class Actions (4th ed. 2010)
Manual on Complex Litigation, Fourth ed. (2004), available at
https://public.resource.org/scribd/8763868.pdf
© 2014
24--34