A federal judge in New Jersey denied a debt collector’s motion to reconsider the Court’s award of summary judgment to a plaintiff for violations of the Fair Debt Collection Practices Act. In granting summary judgment, the Court applied the “substantial attorney review” standard to a collection complaint filed in state court. The case is Daniel Bock, Jr. v. Pressler and Pressler, LLP, Civil Action No. 11-7593 in the United States District Court for the District of New Jersey.
Pressler and Pressler, a law firm, was hired to collect Daniel Bock’s credit card debt. Pressler and Pressler sent Bock an initial collection letter with a disclaimer that an attorney had not reviewed his account. Thereafter, it filed a collection complaint in state court, signed by one of the firm’s attorneys. Pressler and Pressler automates its complaint preparation process, and the signing attorney may only spend seconds reviewing each complaint.
The parties settled the underlying state court claim, but Bock brought an action in federal court, alleging that the collection complaint violated the FDCPA by misleading him as to the involvement of an attorney. Specifically, by signing the complaint, the attorney certified that he had read the complaint and conducted a reasonable inquiry into the facts upon which the complaint was based. Bock alleged that this deceptively overstated the attorney’s involvement in the case.
The judge granted summary judgment for Bock. After the case went up to the Third Circuit and returned for a decision on standing, the Court affirmed its judgment for Bock. Thereafter, Pressler and Pressler moved for reconsideration on three grounds: (1) that the Court had improperly shifted the burden of proof with respect to expert testimony; (2) that Pressler and Pressler had new evidence in the form of an expert report by a law professor; and (3) that the Court’s interpretation of the FDCPA violated the First Amendment under the Noerr-Pennington Doctrine.
The Court rejected Pressler and Pressler’s argument on all three grounds, with its analysis of the second two providing instruction beyond the standards for a motion to reconsider.
The Court concluded that Pressler and Pressler’s new expert report would not change the outcome of the case. Pressler and Pressler had presented the report of a law professor who opined that the firm’s attorney had not violated the ethical standards for signing a pleading. In rejecting this argument, the Court stated that the ethical violation was not the issue. Instead, liability turned on “whether, under the FDCPA, they impliedly misrepresented the level of attorney review in communications to the debtor.”
The Court’s distillation down to this single issue demonstrates its laser-like focus on the consumer’s interpretation of a communication – even a court filing.
The Court also rejected Pressler and Pressler’s argument that liability founded upon a complaint violated the First Amendment right to petition the government under Noerr-Pennington. According to the Court, the filing of the complaint was not the wrongful act giving rise to liability. Rather, the communication of the complaint to Bock constituted a wrongful act as “misleading and unconscionable because it carried the implied misrepresentation of attorney review.” Again, the Court focused on the message received by the consumer rather than the medium of communication.
This decision underscores the importance of considering the debtor’s interpretation of all communications. Whether sending a collection letter or filing a collection complaint, debt collectors must remain mindful of how the least sophisticated consumer will read the communication.