District Court (Ind.) Says Where Misrepresentation in Collection Letter Must Be “Material”, the “Objective” Least Sophisticated Consumer Standard Negates Class Plaintiff’s Obligation to Prove Individual Reliance by Each Putative Classmember; Says Plaintiff Can Limit Class to a Single State Even if it Multiplies the FDCPA’s Class Penalty

ERC also argues that the FDCPA claim here depends on a material misrepresentation, and that “[w]hether any statements resulted in a material misstatement that actually affected the recipient’s decision-making is an issue that cannot be proved on a classwide basis.” [DE 54 at 4.] But claims under § 1692e use an objective “unsophisticated consumer” standard, under which “it is unimportant whether the individual that actually received a violative letter was misled or deceived.” Lox v. CDA, Ltd., 689 F.3d 818, 826 (7^thCir. 2012). “[O]ur test for determining whether a debt collector violated § 1692e is objective, turning not on the question of what the debt collector knew but on whether the debt collector’s communication would deceive or mislead an unsophisticated, but reasonable, consumer.” Turner v. JV.D.B. & Assoc., 300 F.3d 991, 995 (7^thCir. 2003).  This objective analysis applies to the issue of materiality as well as to the deceptive character of the communication. Lox, 689 F.3d at 826 (materiality means the ability to influence a consumer’s decision); Afewerki v. Anaya Law Group, 868 F.3d 771, 776 (9^thCir. 2017); Jensen v. Pressler & Pressler, 791 F.3d 413, 421 (3^rd Cir. 2015); Elyazidi v.SunTrust Bank, 780 F.3d 227, 234 (4^th Cir. 2015); Mikolajczyk v Universal Fidelity, LP, Case No. 16-CV-1382, 2017 WL 706301 at *4 (E.D.Wisc. Feb. 22, 2017); Bowse v. PortfolioRecovery Associates, LLC, 218 F.Supp.3d 745, 753 (N.D.Ill. 2016). The question will be not whether any particular plaintiff’s decision-making was influenced by the challenged text of the notice, but whether “a significant fraction of the population would be.” Pettitv. Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1060 (7^thCir. 2000). Further, as Johnson points out, I have already held, in ruling on ERC’s motion to dismiss, that “[i]f Johnson is correct about how the unsophisticated consumer would interpret ERC’s letter, the statements are certainly material.” [DE 17 at 14.]