Scott McMahon v. LVNV Funding, LLC
807 F.3d 872
7th Cir.
2015
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Scott McMAHON, Plaintiff-Petitioner, v. LVNV FUNDING, LLC, et al., Defendants-Respondents.

No. 15-8018.

United States Court of Appeals, Seventh Circuit.

Submitted Sept. 9, 2015. Decided Dec. 8, 2015.

872 F.3d 872

law judge‘s description of the applicant‘s limitations that the applicant could do only unskilled “light” or “sedentary” work. Here are how the six jobs he said the applicant can perform are described in the Dictionary of Occupational Titles. A dealer account investigator “visits dealers to verify purchases financed by [a] bank against physical inventory of merchandise.” That doesn‘t sound like unskilled work. Nor does “furniture rental consultant.” For his definition of “counter сlerk” the vocational expert cited the paragraph in the Dictionary of Occupational Titles that defines processing film: the counter clerk “receives film for processing, loads film into equipment that automatically processes film for subsequеnt photo printing, and collects payment from customers of photofinishing establishment.” (That might actually be a job that the applicant in this case could do—the only one in the list.) A call-out operator “compiles credit information, such as status of credit аccounts, personal references, and bank accounts to fulfill subscribers’ requests, using telephone.” Sedentary yes, unskilled no. A semiconductor bonder tends an “automatic bonding machine that bonds gold or aluminum wire to integrated circuit dies to connect circuitry to package leads.” Again, sedentary but not unskilled—and it could be dangerous for someone with a nonfunctioning left arm. Last is registration clerk, and here the vocational expert seems to have lit on the wrong paragraph of the Dictionary of Occupational Titles. The paragraph he cites refers to an election clerk—someone who performs administrative tasks “during elections.” Obviously that is occasional rather than full-time employment, because elections are not held continuously.

In short, the vocational expert‘s testimony was worthless—and this apart from the apparent arbitrariness of his numerology.

It is time the Social Security Disability Office cleaned up its act.

Daniel A. Edelman, Edelman Combs Latturner & Goodwin, LLC, Chicago, IL, for Petitioner.

Joel D. Bertocchi, David M. Schultz, Hinshaw & Culbertson LLP, Chicago, IL, for Respondent.

Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit Judges.

WOOD, Chief Judge.

Scott McMahon, the plaintiff in this putative class actiоn arising under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., sought to certify a class of persons in Illinois who had received misleading dunning letters from defendant LVNV Funding, LLC. (There are other defendants, but for simplicity we refer to them collectively as LVNV.) After the district court declined tо certify the class, McMahon petitioned this court under Federal Rule of Civil Procedure 23(f) for permission to appeal that decision. We grant McMahon‘s petition and proceed to the merits, because the parties’ comprehensive submissions—together with the record in the district court—suffice to decide this limited ‍​​‌‌‌​​​‌‌​‌‌‌‌​‌‌‌‌‌‌​‌​‌​​​​​‌​‌​‌​​​​‌‌​‌‌‌​‌‍question. We conclude that the district court‘s decision to deny class certification was erroneous and thus that the case must be sent back to the district court for further proceedings on the class allegations. See ; ; see also .

I

The gist of McMаhon‘s claim is that LVNV violated the FDCPA when it sought to collect or settle debts that are not legally enforceable because the statute of limitations has run. McMahon alleges that LVNV‘s practice was to send dunning letters containing language that would mislead an unsoрhisticated consumer into believing that the debt is legally enforceable. We note that this is McMahon‘s second appeal in this case. See (McMahon I). His first appeal was prompted by the district court‘s dismissal of his class claims under Rule 12(b)(6) and the court‘s conclusion that his individuаl claims were rendered moot by a settlement offer. In McMahon I, we reversed the district court‘s judgment because the offer of settlement he received did not promise a full resolution of the matter and thus did not moot his interest in the case. See .1 As we explained beforе, dunning letters such as the one McMahon received “misrepresented the legal status of the debts, in violation of the FDCPA,” because an “unsophisticated consumer” who read such a dunning letter “could have been led to believe that her debt was legally enforceable.” . Therefore, we concluded that the class allegations had been incorrectly dismissed. .

Following his first appeal, McMahon moved in the district court for class certification. He described his proposed “Class A” as follows:

(a) all individuals in Illinois (b) to whom LVNV ... (c) sеnt a letter seeking to collect a debt that referred to a “settlement” (d) which debt was (i) a credit card debt on which the last payment had been made more than five years prior to the letter, or (ii) a debt arising out of the sale of goods (including gas) on which ‍​​‌‌‌​​​‌‌​‌‌‌‌​‌‌‌‌‌‌​‌​‌​​​​​‌​‌​‌​​​​‌‌​‌‌‌​‌‍the lаst payment had been made more than four years prior to the letter (e) which letter was sent on or after February 28, 2011 and on or before March 19, 2012, (f) where the individual after receipt of the letter, (i) made a payment, (ii) filed suit, or (iii) responded by requesting verificatiоn or contesting the debt.

(Class A also included subclasses that are irrelevant for purposes of this Rule 23(f) petition.) McMahon sought certification of this class under Rule 23(b)(3), which requires the district court to find “that the questions of law or fact common to class members predоminate over any questions affecting only individual members, and that a class action is superior to other

available methods for fairly and efficiently adjudicating the controversy.” FED. R. CIV. P. 23(b)(3).

The district court was satisfied that the proposed class met the numerosity, commonаlity, typicality, and adequacy requirements of Federal Rule of Civil Procedure 23(a). But it concluded that the class nonetheless could not be certified, because of what it saw as a failure to meet the requirements of Rule 23(b)(3). In particular, the court held that issues common to the class did not predominаte over issues affecting individual class members. It based this conclusion on the fact that the proposed class includes persons seeking actual damages—namely, those who paid a part of the debt after receiving a dunning letter—and that the case therefore eventually would involve issues of individual causation and damages. The court stated that even if “the amount of damages due each class member is ‘capable of ministerial determination,’ causation, i.e., determining whether class members paid the dеbt because of the letter, out of moral compulsion, or for some other reason, is not.” And given that the proposed class was estimated to have 3,000 members, the court continued, “the individual issues will dwarf the issues common to the class, making this case unsuitable for class certification.” McMahon moved for reconsideration of the order denying class certification, but his motion was denied.

II

A

In his petition under Rule 23(f), McMahon argues that the district court erred by concluding that “the need for individual damages determinations justifies the deniаl of class certification.” An interlocutory appeal is appropriate, he says, because the district court‘s conclusion is directly at odds with our precedent. Review of the order denying class certification thus (in his view) “will facilitate development of the law because the ... decision is an open invitation to defendants to concoct spurious ‘individual issues’ as to damages.” McMahon also represents that the court‘s denial of class certification will doom the case because his individual claim is too small to justify the cost of litigation. We find these arguments persuasive. Because it appears that the denial of class status is likely to be fatal to this litigation and that an appeal may promote the development of the law, we grant McMahon‘s petition for interlocutory review. See ; ; .

B

On the merits, we agree with McMahon that the district court exceeded the bounds of its discretion when it denied class certification. As McMahon points out, the court‘s analysis is inconsistent with this court‘s decisions. Its reasoning suggests that the existence of individual issues of causation automatically bars class certification under Rule 23(b)(3). That overstates the case. Although “[p]roximate cause ... is necessarily an individual issue,” we have explained that “the need for individual proof alone does not necessarily preclude class certification.” ; see (concluding that district court committed “error of law” by denying class certification where district court‘s reason for denial was that “[t]he problem with the proposed ‍​​‌‌‌​​​‌‌​‌‌‌‌​‌‌‌‌‌‌​‌​‌​​​​​‌​‌​‌​​​​‌‌​‌‌‌​‌‍class here is that showing reliance or сausation—as required to establish liability—requires an investigation of each purchaser” (internal quotation marks omitted)); see also (“[O]ur cases demonstrate that commonality as to every issue is not required for class certification.“); (“It has long been recognized that the need for individual damages determinations at [a] later stage of the litigation does not itself justify the denial of certification.“); (“[T]he need for individual damages determinations does not, in and of itself, require denial of [a] motion for certification.“).

It is well established that, if a casе requires determinations of individual issues of causation and damages, a court may “bifurcate the case into a liability phase and a damages phase.” ; see (“[A] class action limited to determining liability on a class-wide basis, with separate hearings to determine—if liability is established—the damages of individual class members, or homogeneous groups of class members, is permitted by Rule 23(c)(4) and will often be the sensible way to proceed.“), cert. denied, .

Another reason to reject the district court‘s analysis is that it is internally inconsistent. The court stated that thе amount of each class member‘s actual damages is “capable of ministerial determination” yet that the question of causation is not. But a plaintiff must prove causation to establish actual damages. See (explaining that, under Fair Credit Reporting Act, “a plaintiff cannot obtain an award of ‘actual damages’ absent ‘a causal relation between the violation of the statute and the loss of credit, or some other harm‘“); (“[A]ny egregious debt collection practices which cause actual losses to debtors are fully compensable according to the actual damages provision of the FDCPA.” (emphasis added)). ‍​​‌‌‌​​​‌‌​‌‌‌‌​‌‌‌‌‌‌​‌​‌​​​​​‌​‌​‌​​​​‌‌​‌‌‌​‌‍If, as the district court indicated, actual damages in this case are capable of ministerial determination, causation must likewise be capable of ministerial determination.

Finally, LVNV defends the district court‘s denial of class certification as a ruling that “merely recognized ... that class certification is problematic where determining membership in the class requires an assessment of the subjective states of mind of individual class members” (emphasis added). That is not, however, an accurate description of the district court‘s decision. The court did not say that determining membership in the class would require individualized assessments of “subjective states of mind of individual class members.” Althоugh Class A includes persons who made a payment after receiving a dunning letter in violation of the FDCPA, the definition of the proposed class says nothing about their reason for doing so; membership in the subclass of persons who made a payment does not hinge on сausation. We add that there is yet another reason why proof of causation is irrelevant to determining class membership in this case: The FDCPA is a strict-liability statute, and so members of the class would be entitled to statutory damages for a violation of the Act regardless of any actual damages. See 15 U.S.C. § 1692k; ; ; .

III

In sum, the district court‘s denial of class certification on an improper ground raises a question worthy of immediate appeal under Rule 23(f), and on the merits constitutes “an error best handled by a swift remand,” . Accordingly, the order of thе district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion.

WOOD

CHIEF JUDGE

Notes

1
We note that several cases currently pending before the Supreme Court present related issues, but we conclude that none is directly on point and thus that nothing would be gained by holding this mаtter for their resolution. , cert. granted, (argued Oct. 14, 2015), which addresses mootness where a settlement offer would entirely resolve the named person‘s claim, is different precisely because the offer in McMahon‘s case did not provide complete relief. , cert. granted, (argued Nov. 10, 2015), rаises the question whether a collective action—either a class action under Federal Rule of Civil Procedure 23(b)(3) or a collective action under the Fair Labor Standards Act—may go forward where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and whether either kind of collective action may be certified ‍​​‌‌‌​​​‌‌​‌‌‌‌​‌‌‌‌‌‌​‌​‌​​​​​‌​‌​‌​​​​‌‌​‌‌‌​‌‍and maintained when the class contains many members who were not injured. The class in McMahon‘s case is limited to peoplе for whom the statute of limitations has already run; it thus does not pose the risk of including those who are not similarly situated or injured. Finally, , cert. granted, (argued Nov. 2, 2015), presents the question whether Congress may confer Article III standing on a plaintiff who suffers no concrete harm. Once again, that does not describe McMahon‘s case, because he did suffer concrete harm.
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