In Freid v. National Action Financial Services, Inc., Slip Copy, 2011 WL 1547257 (D.N.J. 2011), Judge Chesler denied class certification in an FDCPA claim alleging that debtors were conveyed a false sense of urgency in communications from the debt collectors. Judge Chesler found that secondary evidence of ‘scripts’ from the debt collector did not create uniformity, and questioned whether the scripts themselves – taken as true – in fact created a false sense of urgency. Judge Chesler explained:
In order to envision the form that a trial on the false sense of urgency claim would take, this Court looks to the cases cited by Plaintiff. The most helpful case is Leyse v. Corporate Collection Servs., 2006 U.S. Dist. LEXIS 67719 (S.D.N.Y. Sept. 18, 2006). Leyse concerned a putative class action suit by a consumer against a debt collector, and one claim alleged that the debt collector’s voicemail messages violated § 1692e(10) because they deceptively con-veyed a false sense of urgency. Id. at *1, *19. The Court examined the claim under the Second Circuit’s “least sophisticated consumer” test for violation of § 1692e(10). Id. at *19. The Third Circuit applies this test as well. Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir.2006). ¶ The Leyse Court began by citing the Federal Trade Commission staff commentary on § 1692e(10). 2006 U.S. Dist. LEXIS 67719 at *19. The FTC staff opined: “A debt collector may not communicate by a format or envelope that misrepresents the nature, purpose, or urgency of the message. It is a violation to send any communication that conveys to the consumer a false sense of urgency.” 53 F.R. 50097. Plaintiff alleged that three pre-recorded messages violated 1692e(10) by communicating a false sense of urgency. On cross-motions for summary judgment, the Leyse Court inquired into the deceptiveness of the pre-recorded messages, and ruled as a matter of law. 2006 U.S. Dist. LEXIS 67719 at *19–*21. The Court found that one message was not deceptive and two were deceptive. Id. at *20–*21. ¶ Significantly, Leyse concerned pre-recorded messages. The evidence submitted enabled the Court to have a high degree of certainty as to the exact actual communication to the consumer. This is not the case here. In the instant case, the Complaint provides a transcription of three messages alleged to have been left by NAFS employees on Plaintiff’s answering machine. (Compl.¶¶ 14, 15, 19.) Plaintiff has not asserted that other potential plaintiffs have transcriptions of telephone messages available, nor does Plaintiff rely in this motion on the evidence provided by the transcriptions. ¶ Instead, in arguing that this subclass shares common factual issues, Plaintiff points to the six alternative scripts for telephone messages that NAFS is alleged to have provided to its employees to use—not the actual messages. At trial, Plaintiff will need to prove that an actual communication violated the FDCPA. The six scripts may serve as circumstantial evidence of the actual communication, but there are significant problems that are likely to accompany the use of this evidence. ¶ First, there are six different scripts, and the differences among them precludes treating the group of them as a single, unitary practice. While three of the scripts contain the phrase, “I need you to return my call today,” and so might conceivably be grouped together, the other scripts contain very different phrases. Thus, from the outset, even if it is proven that all employees were given the set of six scripts, different employees using different scripts are quite likely to generate messages that differ in the words used to generate a sense of urgency. ¶ The use of the scripts at trial is likely to be problematic. The finder of fact will be tasked with deciding whether the actual communication received by the consumer was deceptive. Presented with a group of scripts which use the phrases, “I need you to return my call today,” “Since I cannot make any decisions without you, I need to speak to you by the end of business today” or “I need to review the details with you today,” the finder of fact is likely to be uncertain about what message was actually left. ¶ Ascertaining the characteristics of the actual communication would appear to be a very individualized inquiry. Even if a plaintiff could establish which script was used, this is still weak circumstantial evidence of what was actually said in the message, and how it was said. ¶ Additionally, the scripts are problematic be-cause the words of the scripts in and of themselves do not appear to be deceptive. Were a debt collector to state in a message, “I need you to return my call to-day,” this appears quite possibly to be truthful. Many employees need to produce results while working, and it seems entirely possible that the employees of a large debt collector do, in fact, need to have debtors return messages in order to demonstrate to their employer that they are working effectively. Thus, the scripts alone do very little to prove the false sense of urgency claim. ¶ The matter at issue here is the “sense of urgency.” The assessment of whether a communication conveys a sense of urgency is likely to involve judgments of subtleties such as nuances of tone and phrasing. In Leyse, the Court could directly observe the actual tone and phrasing of each pre-recorded message. Not so in the instant case. Here, the evidence as to the message actually received by a particular consumer is likely to be quite varied. Some consumers may have preserved the actual messages received, and this Court will be able to assess the deceptiveness of such messages with far greater ease. Other consumers may not have preserved a recording of the message, and then the Court will need to hear testimony to establish the nature of the communication. ¶ The common issue of fact shared by the proposed plaintiff subclass is that NAFS gives its employees six scripts to use when leaving messages. This common fact appears to be of very limited usefulness to a putative class member trying to prove his or her case. The question of what was actually communicated appears to be a highly individualized matter. Plaintiff’s false sense of urgency claim is poorly suited to class treatment. There are key factual matters which, on this record, do not appear to be common to a large number of plaintiffs.