On July 27, 2016 the Court of Appeals for the Third Circuit issued a non-precedential opinion in the case of Bock v. Pressler & Pressler, (Case No. 15-1056, United States Court of Appeals for the Third Circuit.) The case involved the issue of “Meaningful Attorney Involvement” in collection litigation. The Court remanded the case back to the District Court to determine in the first instance whether Bock has Article III standing, given the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).
Editor’s Note: A “non-precedential opinion” generally, means that it may not be cited in briefs submitted to the Court.
On November 11, 2015, insideARM published an article by Joann Needleman of the Clark Hill Law Firm about the Court of Appeals argument in the Bock case. As noted in that article: “Observers saw this as a significant case, with far-reaching impact upon attorneys who engage in debt collection litigation.”
In Bock, the Pressler law firm filed a collection law suit against a consumer in state court. The consumer, Daniel Bock, Jr., hired an attorney and settled the case for a monetary sum. Shortly thereafter, Bock brought a Fair Debt Collection Practices Act (FDCPA) claim against Pressler, alleging that the law firm filed the state court complaint without any “meaningful review.”
In discovery, the attorney with the Pressler firm who was responsible for the case testified that he reviewed the file in “4 seconds.” Both sides filed Motions for Summary Judgment and the District Court of New Jersey found that the meaningful attorney involvement standard, which applies to a letter sent by an attorney, can also apply both to pleadings and the filing of a complaint. Thus the District Court found that as matter of law, Pressler violated §1692e(3) when it signed and filed the state court complaint against Bock, because Pressler lacked any meaningful attorney review.
Pressler appealed. Both the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC) submitted amicus briefs arguing that meaningful involvement should apply the same for letters as it does for litigation.
Editor’s Note: In April of 2016 the CFPB announced that it had reached an agreement with Pressler and Pressler on a Consent Order in response to the agency’s assertions regarding the filing of “mass-produced” lawsuits against consumers. See our April 26, 2016 story about the settlement. See also the firm’s Press Release issued on the same day. While the two matters allege similar facts, they are two totally different cases.
The Opinion is only 5 pages. In the Needleman article referenced above, Joann mentioned the Court of Appeals interest in the impact of the then undecided Spokeo case. She noted: “The panel even hinted at whether the Bock case should be stayed.”
The court wrote:
“At the time of oral argument in this case, Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), was pending before the United States Supreme Court. It had the potential to impact cases like Bock’s, when the alleged injury to the plaintiff flows from the violation of a procedural right granted by statute. We asked the parties to address Spokeo at oral argument and requested written briefing after the opinion was published on May 16, 2016.
The issue presented in Spokeo was whether the violation of a procedural right granted by statute presents an injury sufficient to constitute an “injury-in-fact” and satisfy the “‘[f]irst and foremost’ of standing’s three elements.” Spokeo, 136 S. Ct. at 1547.
While the Supreme Court did not change the rule for establishing standing in Spokeo, it used strong language indicating that a thorough discussion of concreteness is necessary in order for a court to determine whether there has been an injury-in-fact. Id. at 1545. The Court made it clear that the requirements of particularization and concreteness required separate analyses and that neither requirement alone was sufficient. Id. at 1548 (“Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be ‘concrete.’”). In determining whether there is a concrete injury, the presentation of an alleged statutory violation is not always sufficient. Id. at 1549 (“[Plaintiff] could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.”).
Given the Supreme Court’s directive in Spokeo regarding the need for a court to specifically address concreteness and particularization, we will remand this case to the District Court to determine in the first instance whether Bock has Article III standing.”
“Meaningful Involvement” meet “Injury in Fact.” This case may have a life of its own.
On the other hand, this case may become something of a footnote in ARM industry history, particularly for attorneys. The CFPB has already reached a settlement with Pressler and Pressler as well as a settlement with the Law offices of Frederick J. Hanna & Associates. See here to read our coverage of the Hanna case. Collection attorneys everywhere have read the Pressler and Hanna Documents. Policies and practices have already changed.
The CFPB has also issued its Outline of Proposed Rules for Debt Collection. Collection litigation is addressed in that document, most importantly in the substantiation section. Regardless of the ultimate outcome in the Bock case, collection attorneys are operating under different standards than in the past.