The plaintiff brought, and the District Court certified, a class action under the FDCPA on the basis that the collection letter was “false, deceptive or misleading” by suggesting that the client of the collection company would file suit to collect the debt if unpaid, while the client actually had no intention of actually filing suit against the debtor.
Reversing, the U.S. Fifth Circuit begins with the reminder that “the class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. As Rule 23 makes clear, multiple conditions must be met before a district court may certify a class. The putative class certified here failed to satisfy several of those conditions, including commonality, typicality, and predominance. In addition, the putative class presents substantial questions of Article III standing.”
Turning, then, to the nature of the underlying claims at issue, the Court observes that, in a FDCPA case, it “is not only whether a consumer would perceive a particular statement as threatening legal action, but also whether such a statement is in fact true — that is, whether the creditor does indeed intend to bring suit against the debtor. This element is significant to the class certification question because some creditors may not have a uniform litigation policy when it comes to all debtors. They may instead decide whether to bring suit based on individualized circumstances. And there is no false statement under the FDCPA (or as a matter of common sense) if the threat to bring suit is in fact sincere and true.”
“Flecha failed to provide any evidence concerning Seton’s intent to sue (or lack thereof) — let alone any evidence of class-wide intent…. Every member of the putative class received the same allegedly threatening letter from Medicredit. But the FDCPA penalizes empty threats, not all threats. So the letter alone is insufficient to certify a class. As in Dukes, there is no glue here holding the alleged reasons for all those letters together — namely, evidence of a uniform intention by Seton regarding suit. So it is likewise impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I threatened.”
“Because the class fails under Rule 23, there is no need to separately decide whether the class additionally fails under Article III. But the standing issues in this case are real…. The putative class sweeps in ‘all persons in Texas…who received a form collection letter’ from Medicredit. As a result, the putative class inevitably includes people who received the letter, but ignored it as junk mail or otherwise gave it no meaningful attention — and therefore lack a cognizable injury under Article III.
“That said, we do not reach the issue. That is because the Supreme Court has repeatedly instructed that we should first decide whether a proposed class satisfies Rule 23, before deciding whether it satisfies Article III—and that there is no need to answer the latter question if the class fails under the former.”
Judge Oldham, concurring, would also deny certification, if not dismiss the action entirely, on Article III grounds.
Flecha v. Medicredit, No.18-50551, 2020 WL 91267 (5th Cir. Jan. 8, 2020).