In Flecha v. Medicredit, Inc., No. 18-50551, 2020 U.S. App. LEXIS 481 (5th Cir. Jan. 8, 2020, the Court of Appeals for the Fifth Circuit reversed class certification in an FDCPA case.
This class fails for similar reasons. 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. Id. 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. Id. And that is because the record here is wholly devoid of any evidence of Seton’s debt collection practices. Flecha presented no evidence concerning Seton’s actual intent to sue—either to sue her or others like her. To be sure, her complaint declares that Seton “does not sue consumers for medical debt.” But she presented no evidence to that effect to support class certification. She did not depose anyone from Seton. And the deposition testimony from Medicredit indicates that Seton’s practices were unknown even to Medicredit. Rather than require evidentiary support, the district court simply “presume[d] for the purposes of class certification that Medicredit and Seton acted consistently in determining whether to sue the recipient of its letters.” But HN12 courts must certify class actions based on proof, not presumptions. See, e.g., Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982) (“[A]ctual, not presumed, conformance with Rule 23(a) remains  indispensable.”); Berger v. Compaq Comput. Corp., 257 F.3d 475, 481 (5th Cir. 2001) (“The district court unquestionably adopted an incorrect legal standard by stating that ‘[t]he adequacy of the putative representatives and of plaintiffs’ counsel is presumed in the absence of specific proof to the contrary.’ This is error; the party seeking certification bears the burden of establishing that all requirements of rule 23(a) have been satisfied.”). So Flecha failed to carry her burden to “affirmatively demonstrate” commonality. Dukes, 564 U.S. at 350. She failed to demonstrate that her claim that Medicredit falsely threatened to take legal action against class members is capable of classwide resolution. And so that leaves the class without a common issue. HN13 Her failure to prove commonality also establishes her failure to prove either typicality or predominance. After all, if there is no common issue uniting the putative class, Flecha’s claim can’t be “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). See also Falcon, 457 U.S. at 157 n.13 (“The commonality and typicality requirements of Rule 23(a) tend to merge.”). Nor can Flecha demonstrate that common issues “predominate over any questions affecting only individual members,” when she hasn’t even established the existence of a common issue to begin with. Fed. R. Civ. P. 23(b)(2). In sum, the putative class fails under Rule 23 and cannot be certified.