FDCPA: Third Circuit Joins Others in Requiring Materiality

The Third Circuit joined other circuits last week by requiring that false statements must be material in order to be actionable under 15 U.S.C. §1692e.  In doing so, the Third Circuit joins the Fourth, Sixth, Seventh and Ninth Circuits in so ruling.  In Jensen v. Pressler & Pressler, 2015 U.S. App. LEXIS 11188, No. 14-2808 (3^rd Cir. June 30, 2015), the law firm issued an information subpoena post judgment in an effort to obtain personal and financial information to aid in collection.  The information subpoena, which under state law could be issued by the law firm as the agent of the clerk of court, erroneously listed “Terrence D. Lee” as the clerk of Superior Court.  Mr. Lee, however, was not the clerk of Superior Court and the plaintiff knew it.  The plaintiff filed a putative class action based on 15 U.S.C. §1692e which prohibits making false, misleading, or deceptive statements in the collection of consumer debts.  The plaintiff also asserted claims under 15 U.S.C. §§1692e(9) and (10).  The court of appeals in affirming the lower court decision determined that a technically false representation is not actionable unless it is material.  “[A] statement in a communication is material if it is capable of influencing the decision of the least sophisticated debtor.” [Slip Op. at 12].  The court also gave little credence to plaintiff’s argument that the subpoena violated 15 U.S.C. §1692e(9) which prohibits the use or distribution of any communication which falsely represents itself to be a document authorized, issued or approved by any court, official or agency of any State.  The court “was not persuaded that the information subpoena bearing Lee’s name is actually invalid under New Jersey law” noting that New Jersey courts have repeatedly declined to invalidate similar documents based on “hypertechnical errors.”  [Slip Op. at 14].  Finally, the court declined to consider the issue as one of mixed fact and law requiring a remand, holding that “[n]o reasonable juror could find that the mistake in this case was material.” [Slip Op. at 16].