Judge Denies Class Action Certification in FDCPA Spanish Letter Case Against Portfolio Recovery Associates, LLC

Yesterday, a Federal Judge in Virginia denied a motion to certify a class action case against an arm of publicly traded debt buyer PRA Group (PRAA). The lawsuit, Dykes v. Portfolio Recovery Associates, LLC (PRA) (2016 U.S. Dist. LEXIS 10308, Case number: 1:15cv110) was originally filed exactly one year earlier, on January 28, 2015.

Plaintiff claimed that PRA violated the FDCPA by sending her three (3) debt collection notices in Spanish rather than English. Plaintiff never indicated she preferred to receive correspondence in Spanish and she does not speak or understand Spanish. The Plaintiff sought class certification for a class defined as follows:

All consumers with Virginia addresses, who: (a) within one year of January 28, 2015 (b) were sent a debt collection letter in Spanish by Defendant PRA in a form materially identical or substantially similar to the letter attached to Plaintiff’s Complaint as Exhibit A; and (c) the letter was not returned by the postal service as undelivered.

Discovery revealed that PRA began corresponding with Plaintiff in Spanish after receiving a response in Spanish from a phone call to a number which a LexisNexis skip-tracing search indicated was connected with Plaintiff. (Id. at 4.) Plaintiff alleged that PRA soon realized that this number was not connected with Plaintiff and struck it from its register, but continued to correspond with Plaintiff in Spanish. Each of the three Spanish letters sent to Plaintiff contains language which, when translated, notifies the reader that “[t]his letter comes from a collection agency and its intention is to collect a debt. Any information that is obtained will be used for that purpose.”

There were no allegations by the Plaintiff that the substance of the Spanish collection letters contained false statements or information; but simply that they were just written in Spanish, a language Plaintiff could not read.

The Memorandum Opinion from the Honorable James C. Cacheris reviews the standards for class action certification. First, the Judge discussed the Federal Rule of Civil Procedure governing class actions (Rule 23):

A party seeking class certification must affirmatively demonstrate his compliance with the Rule – that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. In order to be certified, “a proposed class must satisfy Rule 23(a) and one of the three sub-parts of Rule 23(b).

The relevant rule reads:

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members 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) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(D) the likely difficulties in managing a class action.

Plaintiff argued that each of the four requirements of Rule 23(a) and both the predominance and superiority requirements of Rule 23(b)(3) have been met for the proposed class.

PRA challenged the validity of the Plaintiff’s proposed class definition which hinges on the putative class members’ Spanish literacy.” PRA also challenged the validity of what it believes would be the properly defined class as failing to satisfy ascertainability, commonality, typicality, and numerosity.

The Court agreed with the PRA that the class described by Plaintiff in her memorandum in support is both incorrectly defined and lacking commonality. The Court also found that even were the class properly defined, it would be fatally deficient with respect to ascertainability and numerosity.

The Judge wrote:

Any proper definition of the class would have to be limited to individuals who received the Spanish-language dunning letters without first indicating that they primarily speak Spanish or that they would like to receive correspondence in Spanish. Because it is facially apparent that Plaintiff’s proposed class contains many individuals who did not suffer harm at the hands of the Defendant, the Court declines to certify her proposed class.

insideARM Perspective

It is refreshing to see the common-sense opinion in this case. In this instance the proposed class was clearly lacking in the Rule 23 requirements.

However, the case also illustrates the challenges of attempting to be FDCPA compliant when dealing with consumers that do not speak English or for whom English is a second language. Bona Fide, good faith errors can be made.