In Dotson v. Portfolio Recovery Associates, LLC, 2009 WL 1559813 (E.D.Pa. 2009), Judge Shapiro denied class certification in an FDCPA matter arising out of a form dunning letter which purported to violate the FDCPA. Judge Shapiro acknowledged that dunning letters under the FDCPA are analyzed under an objective standard from the perspective of the least sophisticated debtor, but nevertheless held that Plaintiff’s credibility was at issue as far as determining whether the Plaintiff could adequately represent the class. Judge Shapiro held that he could not, explaining:
A district court may consider the credibility of the named plaintiff in determining adequacy of representation. See Savino v. Computer Credit, 164 F.3d 81, 87 (2d Cir.1998) (denial of class certification affirmed in FDCPA class action because proposed representative plaintiff’s “differing accounts about the letters that form the very basis for his lawsuit surely would create serious concerns as to his credibility at any trial”). Dunning letters under the FDCPA are analyzed under an objective standard from the perspective of the least sophisticated debtor, Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir.2008), but plaintiff’s credibility is relevant if he intends to testify at trial that the allegedly deceptive letter failed to meet the objective standard. Here, plaintiff’s credibility is relevant because he is the only witness proposed by his counsel to testify about whether the letter would have deceived the least sophisticated debtor: “Plaintiff Dotson will present his individual case, which may include calling Linwood Dotson, corporate designee(s) of [defendant] and several employees of [defendant]…. Plaintiff will establish that the least sophisticated consumer could readily get the impression that a lawyer was involved in the individual collection or the decision to send the ‘Legal Dept.’ letter to them-when such was not the case. This is the test for deception under Rosenau v. Unifund, 539 F.3d at 220-21.” Pl. Br. at p. 16 (paper no. 15). ¶ At his deposition, plaintiff testified falsely under oath that: (1) prior to receiving the allegedly deceptive letter from defendant, he had never heard of Mr. Lorenz or his law firm; (2) prior to filing the complaint against Portfolio Recovery Associates, LLC, he had filed only one other civil complaint; and (3) plaintiff did not file civil actions against Glacier Financial Services or Stawiarski & Associates. Dotson Dep., p. 46, 63-65 (Paper no. 16, Ex. E). ¶¶ . . . Plaintiff gave false testimony under oath by denying his prior claims under the FDCPA. When called to testify at trial about whether defendant’s letter was deceptive, as proposed by plaintiff’s counsel, plaintiff will be impeached on cross examination. Because plaintiff is unable to provide credible testimony, he cannot adequately protect the interests of absent members of the proposed class.