Certain kinds of class actions – those predicated on technical violations of a federal statute like the Fair Debt Collection Practices Act (“FDCPA”) – provide a steady revenue stream for some plaintiffs’ lawyers, while plaguing some defendants. It can be difficult to oppose certification of these suits, because technical statutory violations may not be associated with many variations in proof. It becomes easier to defend these suits when the plaintiffs don’t do the work of establishing that the violation actually occurred.

Take the case of DeKoven v. Plaza Associates, Nos. 09-2016 & 09-2249 (7th Cir. Mar. 17, 2010). In DeKoven, several plaintiffs sued Plaza Associates, a debt-collection agency, arguing that a settlement letter it had sent to various debtors was confusing, and likely to mislead the debtors into believing that the offer it contained was their last chance to settle their debts. If true, that allegation would constitute a violation of the FDCPA.

In order to demonstrate that the letter was confusing, the plaintiffs hired an expert to interview 160 shoppers in a suburban shopping mall outside Chicago. The expert showed the shoppers a “control letter” that the plaintiffs claimed was less confusing, and the letter that was actually sent.
The defendant, Plaza Associates, moved for summary judgment, arguing that the plaintiffs’ survey evidence suffered from a number of defects. The trial courts granted both motions, and the plaintiffs appealed.

The panel, in an opinion written by Judge Richard Posner, engaged in a thorough analysis of the survey the plaintiffs had submitted, and found it wanting. The panel’s problems with the survey included:

  • “the control letter was no good”;
  • the sample size was not representative of the population, but just convenient to the sampler;
  • the plaintiffs omitted an option in the survey for “don’t know/not sure,” making the survey responses even more confusing;
  • “we don’t think [the survey] proves anything.”

Noting that “[s]uits under the Fair Debt Collection Practices Act have repeatedly come to grief because of flaws in the surveys conducted by plaintiffs’ experts,” the Seventh Circuit affirmed the grants of summary judgment. The lesson here for the defendants is simple: don’t forget to challenge the plaintiffs’ classwide evidence. If the class is not susceptible to common proof, then any attempts to massage evidence to make it apply to the entire class may very well render it inadmissible.

[Disclosure: Back in law school, I used to do academic research for Judge Posner.]