Survey Flaws Lead To Summary Judgment In FDCPA Cases
DEKOVEN v. PLAZA ASSOCIATES (March 17, 2010)
Plaza Associates is a well-known debt collection agency. It sent two collection letters to DeKoven stating that it had the authority to offer a lump-sum settlement but that the offer would only be "valid for a period of thirty-five (35) days." In a different letter to a plaintiff in a related suit, Plaza Associates included the DeKoven statement and also stated that a recipient who disputed the validity of the debt with "satisfactory proof" should provide that information to Plaza. The plaintiffs filed suit under the Fair Debt Collection Practices Act. They complained about the "35 day" language and the "satisfactory proof" language. The former, they complain, might be construed by some as a final offer -- when in fact it is not. The latter, they complain, might be construed by some that a recipient must have "proof" to dispute the validity of the debt. Both plaintiffs retained the same survey expert. The expert conducted a survey but the judges in both cases considered it inadmissible. In both cases, the court below entered summary judgment for Plaza Associates. In both cases, the plaintiff appeals.
In their opinion, Judges Posner, Flaum, and Williams affirmed. The Court reviewed the circumstances of the survey. The expert surveyed 160 people in a shopping mall near Chicago. One half of the people were given the letter with both challenged clauses -- the others (the “control group”) were shown a letter with neither clause. The survey respondents were then asked a series of questions about the letters. The Court agreed with the district court in finding numerous flaws in the survey: the composition of the response group, the content of the original oral questions, and the content of the "control group" letter, among others. The Court noted that many Fair Debt Collection Practices Act cases fail because of survey flaws. It suggested that district courts consider exercising their authority to use a court-appointed expert in FDCPA cases.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select