One claim that we've seen a lot of in the Eastern District of New York by a specific "frequent filer" plaintiffs' counsel firm is that the format of a validation letter overshadows the consumer's validation rights. These claims usually state that the validation notice is in the same font size and color as the rest of the body of the letter and is in running text, and therefore not emphasized. Luckily for the industry, these claims are falling flat in the courts.
The most recent decision to reject this claim was by Judge Ross in Hochhauser v. Grossman & Karaszewski, No. 19-cv-2468 (E.D.N.Y. Apr. 28, 2020). In this case, the collection law firm sent a letter to the consumer on the firm's letterhead. The body of the letter gave a quick introduction in the first paragraph, and then the second paragraph contained nothing but the validation notice required by the FDCPA.
The decision itself addressed this issue beautifully, so we'll just quote it for you:
With respect to the issue of whether the validation notice is overshadowed, the letter in this case is virtually identical to the letters I considered in two recent cases. I reject this claim again, for the same reasons that I did in those two cases.
Specifically, there is no affirmative misdirection in the collection letter here. The validation notice appears in the second paragraph of the body of the letter. Further down the front page, the letter states “IMPORTANT INFORMATION CONTINUED ON THE REVERSE SIDE[.]” A series of other legally mandated notices appear on the reverse side of the letter. None of the disclosures on the reverse side in any way contradict the enumerated validation rights.
This letter actually emphasizes that the information on the front of the letter is important, and that the important information is continued on the reverse side of the letter. A consumer might neglect to look at the reverse side of a letter. A reminder to look at the reverse side does not suggest that the consumer should ignore the front page of the letter.
(Internal citations omitted.)
The court likewise rejected the argument that the letter being on law firm letterhead somehow overshadows the validation notice as it would allegedly discourage the consumer from exercising her validation rights. The court made note that it previously rejected this claim as well, and will do the same again. The court stated that the letter in this case does not even make reference to a lawsuit, whereas the case where it previously rejected the same claim did. The court found that the use of a law firm's letterhead does not overshadow.
Here's the kicker, guys. You know how the judge basically said he rejected these exact claims already in prior cases? Each of those prior cases had the same plaintiffs' counsel of record. This is great information to know if you get sued in E.D.N.Y. by these attorneys, especially if you drew Judge Ross in the case. If they don't withdraw/dismiss these claims, then it might be a great time to consider filing a Rule 11 sanctions motion. This is the kind of recon you can do in just a few minutes with the iA Case Law Tracker. The CLT can pay for itself for a full year if it helps you get just one or two cases dismissed or settlements negotiated down with this type of info.
Want to do some recon on your claims to give you negotiating power when dealing with "frequent filer" plaintiffs' firms? The iA Case Law Tracker can help you do that in less time than it takes to pour your morning cup of coffee.