A recent decision issued by Chief Judge Timothy J. Corrigan of the Middle District of Florida highlights a straightforward yet consequential class action principle: a plaintiff cannot serve as a class representative for a class to whom he or she does not belong.
The specific case is Gartrell v. J.J. Marshall & Associates Inc. In Gartrell, the plaintiff alleged that the defendant violated the Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Collection Practices Act (FCCPA) by “sending her a collection letter without registering as a debt collector in Florida as required under state law.” More specifically, the plaintiff alleged that “she found the letter intimidating, it made her upset and stressed, and that she wasted time reading the letter and discussing it with her attorney.” Yet the plaintiff “did not pay the debt, though she allege[d] that had she not consulted with her lawyer, she would have” “despite [the defendant] being unregistered to collect debt in Florida.”
Before the court could hold a hearing on the plaintiff’s motion for class certification, the Eleventh Circuit held in Trichell v. Midland Credit Management Inc., 964 F.3d 990 (11th Cir. 2020), that “plaintiffs bringing a claim against a debt collector in federal court under the FDCPA cannot merely allege statutory violations; they must allege that they suffered an injury-in-fact in order to have Article III standing.”
As noted by Judge Corrigan, “the effects of Trichell are clear: [The plaintiff] must allege not only that she received a dunning letter from [the defendant], but that it caused her an injury-in-fact. Otherwise, she does not have standing to bring a claim on her own behalf or that of a class.”
As we’ve covered before in this blog, the metes and bounds of when a plaintiff has suffered a concrete injury sufficient to establish Article III standing — and thus that a federal court has subject matter jurisdiction — have been rapidly evolving over the last six years. This is even before the Supreme Court’s watershed decision last year in TransUnion.
To briefly summarize the “pre-TransUnion” highlights of this jurisprudence: on May 16, 2016, the Supreme Court issued its decision in Spokeo Inc. v. Robins, 578 U.S. 330 (2016), and held that a plaintiff does not automatically establish Article III standing merely by alleging that a particular federal statute was technically violated.
Less than two months after Spokeo was decided, the Eleventh Circuit issued an unpublished opinion in Church v. Accretive Health Inc., 654 F. App’x 990 (11th Cir. 2016), an FDCPA case that applied Spokeo and ruled that “through the FDCPA, Congress has created a new right — the right to receive the required disclosures in communications governed by the FDCPA — and a new injury — not receiving such disclosures.” Under Church, an “informational injury” alone arguably satisfied Spokeo and constituted an injury in fact for Article III standing.
Despite the fact that Church concerned a question of federal law and was the first time that the Eleventh Circuit addressed Spokeo, the court chose not to designate Church as a published opinion and thus it was never binding authority on district courts in the circuit.
Following Church, the Eleventh Circuit issued several published opinions applying Spokeo and tightening the belt on Article III standing in the circuit. See Nicklaw v. CitiMortgage Inc., 839 F.3d 998 (11th Cir. 2016) (finding no standing based on the mortgagee’s failure to timely file a certificate of mortgage discharge in violation of New York law, where the mortgagor suffered no real harm); Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019) (finding that the receipt of a single unwanted text message did not create standing under the TCPA).
The law on this issue became pellucid when the Eleventh Circuit issued its published decision on July 6, 2020, in Trichell — four years to the day after Church — holding that the recipients of allegedly misleading debt collection letters lacked Article III standing to pursue claims under the FDCPA because the letters did not cause them any tangible injury. The Eleventh Circuit joined other circuits in concluding that “an asserted informational injury that causes no adverse effects cannot satisfy Article III.”[1] Following Trichell, an informational injury alone is no longer a sufficient independent ground for Article III standing.
Once the Trichell decision was issued, district courts around the Eleventh Circuit rejected the informational injury theory in a variety of cases. See, e.g., Cooper v. Atl. Credit & Fin., Inc., 822 F. App’x 951 (11th Cir. 2020) (relying on Trichell and finding that the plaintiff lacked standing to bring an FDCPA claim for being allegedly misled and confused about her ability to dispute a debt because “these allegations, absent something more, are insufficient to establish that [the plaintiff] had standing”); Daniels v. Aldridge Pite Haan, LLP, No. 5:20-cv-00089, 2020 WL 3866649 (M.D. Ga. July 8, 2020) (relying on Trichell and reaching the same general conclusion); Hill v. Resurgent Capital Servs., L.P., No. 1:20-cv-20563, 2020 WL 4429254 (S.D. Fla. July 31, 2020) (same); Ruffin v. Dynamic Recovery Sols., LLC, No. 5:20-cv-00272, 2020 WL 6134666 (M.D. Fla. Oct. 19, 2020) (same).
The brass tacks is that for four years, the Eleventh Circuit’s July 6, 2016, unpublished decision in Church gave class plaintiffs in the Eleventh Circuit a quick stay of execution from the fallout from the Spokeo decision that was issued a few months earlier. During this four-year period, class plaintiffs in the circuit continued to plead FDCPA classes that were premised on the technical violations of the statute — such as the debt collector not being registered. The complaint in Gartrell, which was filed on April 8, 2019, fits into that category.
However, as Judge Corrigan noted, “the effects of Trichell are clear: [The plaintiff] must allege not only that she received a dunning letter from out-of-state debt collector [the defendant], but that it caused her an injury-in-fact. Otherwise, she does not have standing to bring a claim on her own behalf or that of a class.”
The parties then resubmitted their briefs regarding class certification. The plaintiff’s motion for class certification proposed the following class: “All persons in the state of Florida who received at least one collection letter from [the defendant] and who thereafter made a payment to [the defendant] on the debt referenced in the collection letter.” The plaintiff’s motion argues that she “has standing under Trichell because of her alleged injuries upon receipt of the letter, which include loss of time and anxiety.” The defendant’s response argued that the plaintiff’s class could not be certified because the plaintiff actually proposed “both a statutory damages class composed of all persons that received a collection letter from [the defendant] and made no payment and an actual damages sub-class composed solely of persons who made a payment in response to receiving the letter.” The defendant then argued that the plaintiff was not a member of the actual damages sub-class and therefore could not represent it. The plaintiff replied that the fact “that she and the rest of the class derive standing from different injuries is a distinction without a difference.”
Ultimately, the court based its decision on a simple finding: “On the plain reading of her proposed class, ‘all persons … who … thereafter made a payment to [the defendant] on the debt referenced in the collection letter,’ [the plaintiff was] not a member of the proposed class and cannot be its class representative.” As a result, the court could not certify the plaintiff’s proposed class.
So what is the takeaway from Gartrell? It is not too complicated. Class action litigants should undergo a thorough comparison between a plaintiff’s injury and its proposed class when analyzing class certification.
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[1] The Eleventh Circuit cited the following decisions from other circuits similarly holding that an informational injury alone does not satisfy Article III: Frank v. Autovest, LLC, 961 F.3d 1185 (D.C. Cir. 2020); Casillas v. Madison Avenue Assocs., Inc., 926 F.3d 329 (7th Cir. 2019); Huff v. TeleCheck Servs., Inc., 923 F.3d 458 (6th Cir. 2019); Dreher v. Experian Info. Sols., Inc., 856 F.3d 337 (4th Cir. 2017).
