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CEB Prac. Guide § 2A.51 -- Liability -- Penalties and Punitive Damages

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In VALERIE THOMAS, Plaintiff, v. LVNV FUNDING, LLC & RESURGENT CAPITAL SERVICES, L.P., Defendants., No. 21 CV 1948, 2023 WL 8544083, at *1 (N.D. Ill. Dec. 11, 2023), Judge Cummings was required to determine how the jury would be instructed on the FDCPA's $1,000 statutory penalty, having already found that Defendant violated the FDCPA.  Judge Cummings framed the issue as… Read More

In Young v. Midland Funding, Nos. A161843, A162784, 2022 Cal. App. LEXIS 843, at *33-41 (Ct. App. Oct. 7, 2022), the Court of Appeal held that the Rosenthal Act's incorporation of the FDCPA incorporates the FDCPA's strict liability standard. Young's failure to make a prima facie case that the Midland parties deliberately ignored their obligation to serve her draws into… Read More

In Hanrahan v. Statewide Collection, Inc., No. 19-cv-00157-MMC, 2020 U.S. Dist. LEXIS 242290 (N.D. Cal. Dec. 23, 2020), Judge Chesney granted partial summary judgment to a Rosenthal Act Plaintiff.  She held that the bond fide error rule can apply to mistakes of fact, but not where the mistake occurred with respect to a well-publicized error made by the debt collector.… Read More

In Tourgeman v. Nelson & Kennard, here, the Court of Appeals for the Ninth Circuit held that the Plaintiff bore the burden of proving the defendant's net worth under the FDCPA's penalty provision. Here, Tourgeman had every opportunity to acquire evidence of Nelson & Kennard's net worth. A protective order was entered to give Tourgeman access to Defendant's financial information,… Read More

In Johnson v. Enhanced Recovery Company, LLC., 2018 WL 2057798, at *2–3 (N.D.Ind., 2018), Judge Simon certified an FDCPA class action over the defendant's objection. ERC also argues that the FDCPA claim here depends on a material misrepresentation, and that “[w]hether any statements resulted in a material misstatement that actually affected the recipient’s decision-making is an issue that cannot be… Read More

In Byrne v. Crown Asset Management, LLC., 2018 WL 1609479, at *2 (N.D.Cal., 2018), Judge Chen found that California's elder abuse statute permits trebling of the Rosenthal Act penalty. Defendant TRG argues that Section 3345 only authorizes trebling of punitive damages, and therefore the request should be interpreted as a “de facto” demand for punitive damages, which are unavailable under the… Read More

In Spice v. Blatt, Hasenmiller, Liebsker & Moore LLC, 2018 WL 525723, at *8–9 (N.D.Ind., 2018), Judge Springmann certified an FDCPA class over defendant's objection that the $500,000 statutory cap would only result in de minimus recovery and, therefore, the class action device was not the superior method to adjudicate the dispute. The Defendant counters that a class action is… Read More

In Bonanno v. New Penn Financial dba Shellpoint Mtg. Servicing, Case No: 5:17-cv-229-Oc-30PRL, 2017 WL 3219517 (M.D. Fla. July 28, 2017), the District Court found that the FDCPA affords no right to punitive damages. Shellpoint argues Bonanno's punitive damages and injunctive relief claims under the FDCPA should also be dismissed. The Court agrees. Damages exceeding the $1,000 cap in section… Read More

In Annunziato v. Collecto, Inc., 2016 WL 5407871, at *15–16 (E.D.N.Y. 2016), Judge Spatt held that a debt collector's goodwill is included in calculating the defendant's net worth under the FDCPA's class action penalty calculus.  This is contrary to the 7th Circuit's decision in Sanders v. Jackson, 209 F.3d 998, 1001 (7th Cir. 2000), which held that goodwill was not to… Read More

In Tourgeman v. Collins Financial Services, Inc., 2016 WL 3854540, at *2-4 (S.D.Cal. 2016), Judge Bencivengo dismissed FDCPA class allegations because the Plaintiff had no evidence of the defendant's net worth. In support of his position, Plaintiff cites to the fact that the FDCPA statutory award is a punitive in nature, i.e., the jury considers defendant's conduct and provides for… Read More

In Datta v. Asset Recovery Solutions, LLC, 2016 WL 1070666, at *7-10 (N.D.Cal., 2016), Judge Koh rejected the argument that the FDCPA's $500,000 cap prevented certification of an FDCPA/glassine window case. . . . the Court observes that, as a general matter, courts routinely certify class actions where monetary recovery would be small. . . . Second, the efficacy of a single… Read More

In Nall v. Allied Interstate, LLC, 2015 WL 6529233, at *1-2 (S.D.Ind. 2015), Judge Baker allowed net worth discovery in an FDCPA class action as relevant towards the propriety of class certification. The cases cited by Plaintiff support the requested discovery. See Green, 997 F.Supp.2d at 935–36 (finding net worth helpful in deciding class certification). Net worth is helpful in… Read More

In Tripp v. Berman & Rabin, P.A., 2015 WL 5704075, at *7-10 (D.Kan. 2015), Judge Crabtree rejected the argument that the FDCPA's $500,000 cap prevents certification of an FDCPA class action. Defendants contend that plaintiff cannot carry her burden on this requirement. Defendants argue that the statutory damage cap that applies to a FDCPA class action combined with the large… Read More

In Mitchell v. LVNV Funding, LLC, 2015 WL 7016343, at *10-11 (N.D.Ind.,2015), Judge Springmann rejected an FDCPA defendant's argument that the FDCPA's $500,000 penalty cap and resulting de-minimus class recovery rendered the class action device an inferior means to adjudicate a mass-action. Despite these limits, the Defendants assert that a class action is not superior because recovery is de minimis where… Read More

In Fosnight v. LVNV Funding, LLC, 2015 WL 6394334, at *5 (S.D.Ind.,2015), Judge McKinney found that the FDCPA's $500,000 statutory cap was no impediment to class certification. Defendants' main argument as to the superiority of a class action is based on the propriety of the remedy portion of the FDCPA, which provides for a maximum recovery of $1,000.00 for the class… Read More

In Camacho v. Jefferson Capital Systems, LLC, 2015 WL 5569082 (N.D.Cal., 2015), Judge Freeman granted an FDCPA Plaintiff's summary judgment motion despite the Defendant's claim of bona fide error protection. According to Defendant, the collection letters sent to Plaintiff actually contained two violations of the FDCPA and RFDCPA. The first violation resulted from Defendant sending a letter directly to Plaintiff in violation… Read More

In Jacobson v. Persolve, LLC, No. 14-CV-00735-LHK, 2015 WL 3523696, at *10 (N.D. Cal. June 4, 2015), Judge Koh granted, in part, class certification in an FDCPA class action despite the fact that the FDCPA's $500,000 penalty cap would result in deminimus recover to the large number of individual class members. In opposition, Defendants do not dispute that individual class members… Read More

In Bentkowsky v. Benchmark Recovery, Inc, 2015 WL 502948 (N.D.Cal. 2015), Judge Chhabria addressed whether an intent element is required for imposition of a statutory penalty under the Rosenthal Act versus the FDCPA’s “strict” liability provision. The defendants also contend that the Court lacked authority to award $1,000 more in damages, for the same violation, under section 1788.17. On further… Read More

In Blandina v. Midland Funding, here, Judge Quinones Alejandro held that the $500,000 statutory class action penalty under the FDCPA applies "per lawsuit" and not "per defendant". While the Third Circuit has not addressed directly whether the FDCPA statutory limit for class actions provides a maximum amount of recovery per action as opposed to per defendant, the Third Circuit, along… Read More

In Kalkstein v. Collecto, Inc., --- F.R.D. ----, 2015 WL 59246 (E.D.N.Y. 2015), Judge Spatt found that the fact that a putative class member would receive less in a class settlement than if the class member sued individually did not defeat class certification. The superiority element of Rule 23(b)(3) requires the court to examine whether a class action is superior… Read More

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