Kausar v. GC Services Limited Partnership

BRIEF in Opposition

D.N.J.June 19, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ------------------------------------------------------X Rukhsana Kausar, on behalf of herself and all others similarly situated, Civil Action No: 2:15-cv-06027-ES-JAD Plaintiffs, v. MOTION DATE: July 3, 2017 GC Services Limited Partnership Defendants. ------------------------------------------------------X PLAINTIFF’S RESPONDING BRIEF OPPOSING DEFENDANT’S MOTION FOR DISMISSAL Law Offices of Gus Michael Farinella, PC 110 Jericho Turnpike – Suite 100 Floral Park, NY 11001 Attorney for Plaintiffs On the brief: Ryan Gentile, Esq. Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 1 of 38 PageID: 641 i TABLE OF CONTENTS…………………………………………………………..……….……...i TABLE OF AUTHORITIES………………………………………………………………..……iii INTRODUCTION……………………………………………………………………………..….1 LEGAL ARGUMENTS…………………………………………………………………………...4 POINT I: LEGAL STANDARD FOR A MOTION TO DISMISS PURSUANT TO RULE 12(b)(1)………………………………………………………………………...…..4 POINT II: THE EFFECT OF SPOKEO ON THE ISSUE OF STANDING……………...5 POINT III: THE THIRD CIRCUIT COURT OF APPEALS INTERPRETATION OF SPOKEO………………………………………………………………….8 POINT IV: POST-SPOKEO CASE LAW ESTABLISHES THAT PLAINTIFF HAS STANDING…………………………………………………………………11 A. Courts in the District of New Jersey have consistently held after Spokeo that violations of the FDCPA are “concrete” and confer Article III standing………………………………………………………………………11 B. Defendant’s Article III standing argument regarding the same Letter at issue in this case has been rejected twice by two different Courts…………..16 C. Other Courts have held that individuals in FDCPA cases have standing to bring their cases post-Spokeo……………………………………………..17 POINT V: PLAINTIFF’S INJURY IS PARTICULARIZED…………………………...18 POINT VI: PLAINTIFF’S INJURY IS CONCERETE…………………………………19 A. Your Honor’s Holding in Fontanez v. Stern & Eisenberg, P.C……………...19 B. Plaintiff’s Claims Are Substantive Not Procedural………………………….20 C. Plaintiff’s Claim Satisfies Both Prongs Of Horizon’s The Two Part Test…..22 1. Plaintiff’s claims have long been actionable in the Anglo-American tradition…………………………………………………………………..22 2. Congress Expressed An Intent To Make Plaintiff’s Injury Redressable...24 Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 2 of 38 PageID: 642 ii POINT VII: DEFENDANT’S ARGUMENTS ARE LEGALLY FLAWED……………29 A. Plaintiff Does Not Have To Allege Risk Of Harm To Establish Standing…..29 B. The Case Law Cited By Defendant Is Inapplicable To This Case…………..29 CONCLUSION………………………………………………………………………….…….…30 Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 3 of 38 PageID: 643 iii TABLE OF AUTHORITIES CASES Bautz v. ARS Nat'l Servs., Inc., 2016 WL 7422301 (E.D.N.Y. Dec. 23, 2016)…………….17, 30 Bicking v. Law Offices of Rubenstein and Cogan, 783 F. Supp. 2d 841 (E.D. Va. 2011)………………………………………………………………………….19, 23, 29 Blaha v. First National Collection Bureau, Case No. 16-2791(WHW) 2016 U.S. Dist. LEXIS 157575 (D.N.J. Nov. 10, 2016)………………………....11-15, 21, 27, 30 Bock v. Pressler & Pressler, LLP, Case No. 11-7593(KM)(SCM) 2017 WL 2304643 (D.N.J. May 25, 2017)………………………..…..………...11, 15, 16, 21, 30 Carney v. Russell P. Goldman, P.C., Case No. 15-260(BRM), 2016 WL 7408849 (D.N.J. Dec. 22, 2016)……………………………..………...11-15, 21, 27, 30 Chapman v. Bowman, Heintz, Boscia & Vician, PC, 2016 WL 3247872 (N.D. Ind, June 13, 2016)………………………………………………………………………..17 Church v. Accretive Health, Inc., 654 Fed.Appx. 990 (11th Cir. 2016)……………………passim Cohen v. Kurtzman, 45 F.Supp.2d 423 (D.N.J. 1999)……………………………………………4 Dickens v. GC Services Limited Partnership, 2016 WL 3917530 (M.D. Fla. July 20, 2016)……………………………………………………………………16, 17 Dittig v. Elevate Recoveries, LLC, 2016 WL 4447818 (W.D. Pa. Aug. 24, 2016)……………..18 Dolan v. Select Portfolio Servicing, 2016 WL 4099109 (E.D.N.Y. Aug. 2, 2016)……………..30 Fontanez v. Stern & Eisenberg, P.C., Case No. 16-1562(ES) 2016 WL 7104844 (D.N.J. Dec. 5, 2016)……….………………………...3, 19, 20, 23, 27, 28, 29 Federal Election Commission v. Akins, 524 U.S. 11 (1998)……………………………...8, 14, 26 Fuentes v. AR Resources, Inc. Case No. 15-7988(FLW) 2017 WL 1197814 (D.N.J. March 31, 2017)………………………………………………………………....11, 14, 15 Genova v. IC System, Inc., 16-5621 (MCA), 2017 WL 2289289 (D.N.J. May 25, 2017)….11, 15 Grief v. Wilson Elser Moskowitz, Edelman & Dicker, 217 F. Supp. 2d 336 (E.D.N.Y. 2002)…3 Havens Realty Corp. v. Coleman, 455 U. S. 363 (1982)………………………….7, 8, 12, 27, 28 Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 4 of 38 PageID: 644 iv Hayes v. Convergent Healthcare Recoveries, Inc., 2016 WL 5867818 (CD Illinois, October 7, 2016)…………………………………………………………………...18 In re Google Inc. Cookie Placement Consumer Privacy Litigation, 806 F.3d 125 (3d Cir. 2015)……………………………………………………………………………….…….8 In re Horizon Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625 (3d. Cir. Jan. 20, 2017)………………………………………………………………...……passim In re Michaels Stores, Inc., 2017 WL 354023 (D.N.J. Jan. 24, 2017)……………………….20, 21 In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262 (3d Cir. 2016)……..….5, 9, 14, 25, 26 Irvine v. I.C. Sys., Inc., 2016 WL 4196812 (D. Co. July 29, 2016)……………………………..18 Jones v. Advanced Bureau of Collections LLP, 2016 WL 4499456 (M.D. Georgia, Aug. 26, 2016)………………………………………………………………….17 Landrum v. Blackbird Enters., LLC, 2016 WL 6075446 (S.D. Tex. Oct. 3, 2016)……………..20 Lane v. Bayview Loan Servicing, LLC, 2016 WL 3671467 (N.D. Ill. July 11, 2016)………….18 Linehan v. Allianceone Receivables Management, Inc., 2016 WL 4765839 (W.D. Wash. Sept. 13, 2016)…………………………………………………………………….18 Lopez v. Law Offices of Faloni & Associates, LLC, 16-01117(SDW)(SCM) 2017 WL 2399083 (D.N.J. June 2, 2017)……………………..…………………………….11, 14 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)………………………………….…..6, 9, 23 Macy v. GC Services Limited Partnership, 2016 WL 5661525 (W.D. Ky. Sept. 29, 2016)………………………………………………………….……16, 17, 29 Massachusetts v. EPA, 549 U.S. 497 (2007)…………………………………………….……..6, 7 Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884 (3d Cir. 1977)………………………..4 Petruska v. Gannon Univ., 462 F.3d 294 (3d Cir. 2006)………………………………………….5 Pierre v. Retrieval Masters Creditors Bureau, Inc. Case No. 15-2596(FLW) 2017 WL 1102635 (D.N.J. March 24, 2017)…………………………………………….………11 Pisarz v. GC Services Limited Partnership, Case No. 16-4552(FLW) 2017 WL 1102636 (D.N.J. March 24, 2017)…………………………….11, 13, 14, 17, 21, 26, 30 Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 5 of 38 PageID: 645 v Prindle v. Carrington Mortg. Servs., LLC, 2016 WL 4369424 (M.D. Fla. Aug. 16, 2016)………………………………………………………...…18, 22, 23, 24 Public Citizen v. U.S. Department of Justice, 491 U.S. 440 (1989)…………………...7, 8, 14, 26 Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208 (10th Cir. 2006)…………...……10 Sartin v. EKF Diagnostics, Inc., 2016 WL 3598297 (E.D. La. July 5, 2016)………..……...29, 30 Sayles v. Advanced Recovery Sys., Inc., 2016 WL 4522822 (S.D. Miss. Aug. 26, 2016)……...18 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (May 16, 2016)…………………………………...passim Stoops v. Wells Fargo Bank, N.A., 2016 WL 3566266 (W.D. Pa. June 24, 2016)……………..30 Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. Nov. 23, 2016)………………………………30 Thomas v. John A. Youderian Jr., LLC, Case No. 16-01408(KM) 2017 WL 1250988 (D.N.J. Feb. 3, 2017)……………………………………………..…11, 21, 30 U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506 (3d Cir. 2007)……………………..4 Warth v. Seldin, 422 U. S. 490 (1975)…………………………………………………………….7 STATUTES 15 U.S.C. §1692 et seq.……………………………………………………………………………1 15 U.S.C. §1692(a).………………………………………………………………………..….…24 15 U.S.C. §1692(e)………………………………………………………………………………24 15 U.S.C. §1692e……………………………………………………………...…11, 23, 25, 27, 28 15 U.S.C. §1692e(10).……………………………………………………….................…3, 19, 25 15 U.S.C. §1692g……………………………………………………………………..1, 10, 24, 28 15 U.S.C. §1692g(a).……………………………………..………………………………...1, 2, 19 15 U.S.C. §1692g(a)(4)………………………………………………………………..…….passim 15 U.S.C. §1692g(a)(5)…………………………………………………………………..….passim 15 U.S.C. §1692g(b)…………………………………………………………….………….2, 3, 25 Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 6 of 38 PageID: 646 vi 15 U.S.C. § 1692k………………………………………………………………………...….13, 25 RULES Fed. R. Civ. P. 12(b)(1) …………………………………………………………………..……….4 RESTATEMENTS Restatement (1st) of Torts §§ 525, 552 (1938)…………………………………………………..23 Restatement (2d) of Torts § 552C & Cmt. a (1977)………………………………………..........23 Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 7 of 38 PageID: 647 1 INTRODUCTION Rukhsana Kausar (“Plaintiff” or “Ms. Kausar”) brought this putative class action lawsuit to obtain redress for the unlawful debt collection practices utilized by GC Services Limited Partnership (“GC” or “Defendant”). Plaintiff alleged in her Complaint that GC unlawfully engaged in the collection of consumer debts in violation of the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”). GC mailed a collection letter (the “Letter”) dated June 9, 2015 to Plaintiff. (Cmplt., ¶18). Exhibit A to Plaintiff’s Complaint is a true copy of the Letter that GC mailed to Plaintiff. (Cmplt., ¶18). GC mailed the Letter as part of their efforts to collect a consumer debt that Ms. Kausar allegedly owed to Synchrony Bank related to a personal Brooks Brothers Credit Card Account. (Cmplt., ¶14, 18). The Letter was the first communication that GC had with Plaintiff. (Cmplt., ¶23) The Letter was the only document GC ever sent to Ms. Kausar. The Letter is a form letter that GC used for the purpose of attempting to comply with 15 U.S.C. §1692g. (Cmplt., ¶31) The Letter was the only document that GC sent to Plaintiff purporting to contain the initial disclosures required by 15 U.S.C. §1692g. (Cmplt., ¶25) The Letter from GC attached as Exhibit A to Plaintiff’s Complaint states in relevant part (Cmplt., ¶22): As of the date of this letter, our records show you owe a balance of $347.00 to Synchrony Bank. If you dispute this balance or the validity of this debt, please contact us. If you do not dispute this debt within 30 days after you receive this letter, we will assume this debt is valid. However, if you do dispute all or any portion of this debt within 30 days of receiving this letter, we will obtain verification of the debt from our client and send it to you. Or, if within 30 days of receiving this letter you request the name and address of the original creditor, we will provide it to you in the event it differs from our client, Synchrony Bank. Plaintiff alleges in her Complaint that GC’s Letter failed to provide the disclosures required by 15 U.S.C. §1692g(a)(4) and 15 U.S.C. §1692g(a)(5). Those sections provide: Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 8 of 38 PageID: 648 2 Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing: (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 15 U.S.C. §1692g(a)(4) and 15 U.S.C. §1692g(a)(5). (Emphasis Added) 15 U.S.C. §1692g(b) further provides that: [i]f the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) of this section unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. (emphasis added). Consequently, a debt collector's legal obligation to cease collection efforts until it has provided a consumer with verification of the debt, or the name and address of the original creditor, only arises if the consumer submits the dispute or request in writing. GC’s Letter violated 15 U.S.C. §1692g(a)(4) and 15 U.S.C. §1692g(a)(5) because “it failed to communicate that to be entitled to a verification of the debt under subsection (a)(4) or to obtain the name and address of the original creditor under subsection (a)(5) the request must be in writing.” (Cmplt., ¶36) “GC’s omission would reasonably lead the Plaintiff and other least Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 9 of 38 PageID: 649 3 sophisticated consumers to believe, erroneously, that a verbal dispute of the debt will protect his or her rights in obtaining verification of the debt and/or the name and address of the original creditor.” (Cmplt., ¶42) Plaintiff’s Complaint further alleged that a real “risk of harm” arises from the omission of the “in writing” language in GC’s Letter stating, “Without a statement that these requests must be in writing, the least sophisticated consumer is not simply uncertain of his rights under the statute, he is completely unaware of them.” See Grief, 217 F. Supp. 2d 336, 340- 41 (E.D.N.Y. 2002). In addition, a consumer who is not informed of the writing requirements would be unable to avail himself of the protections afforded by Section 1692g(b). For example, if the debt collector does not inform that consumer that a debt dispute must be in writing, the consumer could dispute the debt during a telephone call to the debt collector, but the debt collector would not be required to cease its collection efforts and the consumer would not benefit from the protections afforded by the FDCPA.” (Cmplt., ¶44). Plaintiff further alleged that GC violated §1692e(10) by failing to disclose in their Letter that Plaintiff had to dispute her debt in writing to obtain verification, and had to make a written request to obtain the name and address of the original creditor. Plaintiff alleged that by omitting this information, GC used a materially false, deceptive or misleading representation or means to collect or attempt to collect their debt in violation of §1692e(10). (Cmplt., ¶46) The false representation is material because it could easily mislead the least sophisticated consumer about how to properly request verification of the debt and/or the name and address of the original creditor, and therefore, could impede the consumer's ability to respond. (Cmplt., ¶46) In Fontanez v. Stern & Eisenberg, P.C., Case No. 16-1562(ES) 2016 WL 7104844 (D.N.J. Dec. 5, 2016), Your Honor found in a materially identical case, that a plaintiff states a Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 10 of 38 PageID: 650 4 claim under §1692g(a)(4) where the collection letter at issue omits the “in writing” language from the statutorily mandated disclose required by §1692g(a)(4). Spurred by the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (May 16, 2016), Defendant now seeks to dismiss Plaintiff’s Complaint on jurisdictional grounds. But Defendant is mistaken both as to the Supreme Court’s holding in Spokeo, and its reach. In short, Spokeo does not affect this Court’s continuing jurisdiction over this matter. Even when considering Spokeo, Plaintiff still maintains Article III standing to bring her claim. LEGAL ARGUMENTS POINT I LEGAL STANDARD FOR A MOTION TO DISMISS PURSUANT TO RULE 12(b)(1) A motion to dismiss under Rule 12(b)(1) "attacks . . . the right of a plaintiff to be heard in Federal court." Cohen v. Kurtzman, 45 F.Supp.2d 423, 428 (D.N.J. 1999). When ruling on such a motion, a distinction must be made between a facial and factual attack. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). If the Rule 12(b)(1) motion "is a facial attack, the court looks only at the allegations in the pleadings and does so in the light most favorable to the plaintiff." U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007) (citing Mortensen, 549 F.2d at 891). On the other hand, when the Rule 12(b)(1) motion is a factual attack, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen, 549 F.2d at 891. Here, it is respectfully submitted that Defendant’s motion is a facial attack because it does not challenge the validity of any of Plaintiff’s factual claims, but argues that the allegations of the Complaint, even accepted as true, are insufficient to establish Plaintiff’s Article III standing. See Pa. Shipbuilding Co., 473 F.3d at 514. Accordingly, it is respectfully submitted Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 11 of 38 PageID: 651 5 that this Court should look only at the allegations in the pleadings and do so in a light most favorable to Plaintiff. See Petruska v. Gannon Univ., 462 F.3d 294, 299 n.1 (3d Cir. 2006). POINT II THE EFFECT OF SPOKEO ON THE ISSUE OF STANDING The Supreme Court’s decision in Spokeo did very little to change (or even clarify) the law. The Supreme Court in Spokeo did not change the law of standing or pave any new ground, rather it merely reiterated certain fundamental principles and then remanded the case to the Ninth Circuit, whose previous analysis was “incomplete” because it had “overlooked” concreteness. 136 S. Ct. at 1545. The Third Circuit Court of Appeals in In re Horizon Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625 (3d. Cir. Jan. 20, 2017) held that Spokeo did not change the law, but rather reiterated traditional notions of standing. Specifically, the Third Circuit held: Spokeo itself does not state that it is redefining the injury-in-fact requirement. Instead, it reemphasizes that Congress “has the power to define injuries,” 136 S.Ct. at 1549 (citation and internal quotation marks omitted), “that were previously inadequate in law.” Id. (citation and internal quotation marks omitted). In the absence of any indication to the contrary, we understand that the Spokeo Court meant to reiterate traditional notions of standing, rather than erect any new barriers that might prevent Congress from identifying new causes of action though they may be based on intangible harms. In re Horizon, 846 F.3d. at 638. (Emphasis added) The Supreme Court in Spokeo reiterated its previous holdings that in order to establish standing under Article III, “the plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id. at 1547; see also In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 272 (3d Cir. 2016). The Court in Spokeo focused on the first requirement, that of “injury in fact.” This requirement has two components: the injury must be both (1) particularized and (2) concrete. “For an injury to be ‘particularized’, it must affect the plaintiff in a personal Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 12 of 38 PageID: 652 6 and individual way.” Id. at 1548. But particularization is only one half of the injury-in-fact inquiry. The injury must also be concrete – “that is, it must actually exist.” Id. What does this mean? To help answer that question, the Supreme Court in Spokeo distilled several “general principles” from its prior cases, without going beyond those cases. Id. at 1550. The first is that, although tangible injuries (like physical or economic harm) are “perhaps easier to recognize” as concrete injuries, “intangible injuries can nevertheless be concrete,” as can injuries based on a “risk of harm.” Id. at 1549–50 (Emphasis added). Second, “[i]n determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles.” Id. at 1549. So, if the “alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts” – or, put in fewer words, if “the common law permitted suit” in analogous circumstances – “the plaintiff will have suffered a concrete injury that can be redressed by a federal court.” Id. But a plaintiff need not dig up a common-law analogue to establish a concrete injury, because Congress has the power (and is in fact “well positioned”) “to identify intangible harms that meet minimum Article III requirements,” even if those harms “were previously inadequate in law.” Spokeo, 136 S. Ct. at 1549; see also Massachusetts v. EPA, 549 U.S. 497, 516 (2007) (“[Congressional] authorization is of critical importance to the standing inquiry: ‘Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.’”). Said differently, Congress can create “new rights of action that do not have clear analogs in our common-law tradition.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring). “In exercising this power, however, Congress must at least identify the injury it seeks to vindicate and relate the injury to Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 13 of 38 PageID: 653 7 the class of persons entitled to bring the suit.” Massachusetts, 549 U.S. at 516. If it does so, the plaintiff will be able to establish standing so long as they are part of that class of people. Third, the Court in Spokeo emphasized that Congress can elevate even the violation of procedural rights to a concrete injury if they protect against an identified harm, and “a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” 136 S. Ct. at 1549. Thus, where a plaintiff’s allegations are aligned with the harm that Congress sought to curb, that plaintiff need not allege any additional harm beyond the one Congress identified. The Supreme Court in Spokeo made clear that if Congress indicated that it sought to protect against a certain harm (like being subjected to false, deceptive or misleading representations in collection letters sent by debt collectors such as GC), a plaintiff will have standing to sue if (like Ms. Kausar was) they are subjected to that harm. Justice Thomas’s concurrence in Spokeo provides even greater clarity on this point, explaining that when Congress creates new private rights – such as those afforded by the FDCPA to prevent deception and abuse by debt collectors – Article III standing exists once those private rights have been invaded: When Congress creates new private causes of action to vindicate private or public rights, these Article III principles circumscribe federal courts’ power to adjudicate a suit alleging the violation of those new legal rights. Congress can create new private rights and authorize private plaintiffs to sue based simply on the violation of those private rights. See Warth v. Seldin, 422 U. S. 490, 500 (1975). A plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right. See Havens Realty Corp. v. Coleman, 455 U. S. 363, 373–374 (1982) (recognizing standing for a violation of the Fair Housing Act) Spokeo, 136 S. Ct. at 1553. (Emphasis Added) None of this is new. And the Court in Spokeo did not even apply these principles to the facts before it, choosing instead to remand the case to the Ninth Circuit, whose previous analysis was “incomplete” because it had “overlooked” concreteness. Id. at 1545. That said, the Supreme Court did provide a few examples of injuries that satisfy concreteness. The Court cited Public Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 14 of 38 PageID: 654 8 Citizen v. U.S. Department of Justice, which held that the plaintiff had standing to challenge the DOJ’s failure to provide access to information, the disclosure of which was allegedly required by the Federal Advisory Committee Act, because the inability to obtain such information “constitutes a sufficiently distinct injury to provide standing to sue.” 491 U.S. 440, 449 (1989). The Court also cited Federal Election Commission v. Akins for a similar point, “confirming that a group of voters’ ‘inability to obtain information’ that Congress had decided to make public is a sufficient injury in fact to satisfy Article III.” Spokeo, 136 S. Ct. at 1550 (citing Akins, 524 U.S. 11, 20–25 (1998)). These cases illustrate that an informational injury – the personal denial of access to information required by statute – is a concrete injury. POINT III THE THIRD CIRCUIT COURT OF APPEALS INTERPRETATION OF SPOKEO In In re Horizon Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625 (3d. Cir. Jan. 20, 2017), the Third Circuit Court of Appeals issued its latest decision regarding Spokeo and its impact on individuals’ Article III standing when an individual only claims intangible injuries arising from statutory violations, and does not allege any actual tangible injuries. In Horizon, 846 F.3d at 635, the Third Circuit stated: That the violation of a statute can cause an injury in fact and grant Article III standing is not a new doctrine. The Supreme Court has repeatedly affirmed the ability of Congress to "cast the standing net broadly" and to grant individuals the ability to sue to enforce their statutory rights. Fed. Election Comm'n v. Akins, 524 U.S. 11, 19 (1998)…Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74 (1982)(explaining that one "who has been the object of a misrepresentation made unlawful under [the statute] has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the Act's provisions"). The Horizon Court then noted that recent Third Circuit precedent in In re Google Inc. Cookie Placement Consumer Privacy Litigation, 806 F.3d 125, 134 (3d Cir. 2015), (“the actual or threatened injury required by Art[icle] III may exist solely by virtue of statutes creating legal Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 15 of 38 PageID: 655 9 rights, the invasion of which creates standing, even absent evidence of actual monetary loss”) (emphasis original); and In re Nickelodeon Consumer Privacy Litigation, 827 F.3d 262 (3d Cir. 2016), stood for the fact that individuals (like Ms. Kausar) may sue “to remedy violations of their statutory rights (like those granted by the FDCPA), even without additional injury.” Id., at 636. The Horizon Court further noted that the Supreme Court in Spokeo, 136 S. Ct. at 1549, rejected the argument that an injury must be “tangible” in order to be “concrete.” Id., at 637. The Horizon Court held that there were two tests for whether an intangible injury is concrete: The first test, the one of history, asks whether "an alleged intangible harm" is closely related "to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American Courts." Id. If so, it is likely to be sufficient to satisfy the injury-in-fact element of standing. Id. But even if an injury was "`previously inadequate in law,'" Congress may elevate it "`to the status of [a] legally cognizable injur[y].'" Id. (quoting Lujan, 504 U.S. at 578, 112 S.Ct. 2130). Because "Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is ... instructive and important." Id. The second test therefore asks whether Congress has expressed an intent to make an injury redressable. Id. at 637. The Horizon Court further held that Spokeo does not require a plaintiff to show a statutory violation caused a material risk of harm, holding, “Although it is possible to read the Supreme Court's decision in Spokeo as creating a requirement that a plaintiff show a statutory violation has caused a ‘material risk of harm’ before he can bring suit…we do not believe that the Court so intended to change the traditional standard for the establishment of standing.” Id., at 637-38. Applying all the above, the Horizon Court held the plaintiffs had standing to bring their Fair Credit Reporting Act claim that sought only statutory damages stating: Plaintiffs here do not allege a mere technical or procedural violation of FCRA. They allege instead the unauthorized dissemination of their own private information — the very injury that FCRA is intended to prevent. There is thus a de facto injury that satisfies the concreteness requirement for Article III standing.[24] See In re Nickelodeon, 827 F.3d 274 (concluding that the "unlawful disclosure of legally protected information" in and of itself constitutes a "de facto injury"). Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 16 of 38 PageID: 656 10 Id., at 640. (Emphasis Added) Of great importance to the issue of Ms. Kausar’s standing in this matter, at Footnote 24 of the Horizon decision, the Third Circuit cited with approval to two other Circuit Courts cases that held in FDCPA matters (one very similar to this matter) that violations of the FDCPA are substantive violations because the injuries suffered by individuals are the very same ones the FDCPA was designed to prevent, and therefore such violations in and of themselves create de facto injuries that are concrete and confer Article III standing on plaintiffs. Specifically, the Horizon Court cited to Church v. Accretive Health, Inc., 654 Fed.Appx. 990 (11th Cir. 2016) and Robey v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208 (10th Cir. 2006). Church v. Accretive Health is particularly relevant to the matter before this Court because in addition to being cited to favorably by the Third Circuit in Horizon, as discussed in detail infra, it was also cited to by multiple Courts within this District in support of their holdings. In Church, the plaintiff alleged that they did not receive certain disclosures required by §1692g and §1692e(11). Church held that an individual who does not receive certain disclosures required by 15 U.S.C. §1692g has standing per Spokeo because the injury is one that Congress has elevated to the status of a legally cognizable injury through enacting the FDCPA. See Church, 2016 WL 3611543, at * 3. Furthermore, the Church Court held the violations alleged by the plaintiff were substantive and not procedural in nature because, “Congress provided individuals with a substantive right to receive certain disclosures and not receiving those disclosures violates that substantive right.” Id., at 995, n.2. Like the Plaintiff in Church, Ms. Kausar is alleging that she did not certain disclosures required by §1692g, specifically §1692g(a)(4) and §1692g(a)(5). As such, like the Plaintiff in Church, Ms. Kausar has standing to bring her FDCPA claim against GC. Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 17 of 38 PageID: 657 11 POINT IV POST-SPOKEO CASE LAW ESTABLISHES THAT PLAINTIFF HAS STANDING A. Courts in the District of New Jersey have consistently held after Spokeo that violations of the FDCPA are “concrete” and confer Article III standing. Following the Supreme Court’s decision in Spokeo, there has been a plethora of litigation in this District on the issue of Article III standing in FDCPA cases were only an intangible injury is alleged. As of the date of Plaintiff’s Opposition, there have been nine cases within this District that have reviewed the issue – at a motion to dismiss stage – of whether a claim that a debt collector violated the FDCPA satisfies the “concreteness” prong of the “injury-in-fact” element of standing. Every single one of the nine cases have answered this question in the affirmative. See Blaha v. First National Collection Bureau, Case No. 16-2791(WHW) 2016 U.S. Dist. LEXIS 157575 (D.N.J. Nov. 10, 2016); Carney v. Russell P. Goldman, P.C., Case No. 15-260(BRM), 2016 WL 7408849 (D.N.J. Dec. 22, 2016); Thomas v. John A. Youderian Jr., LLC, Case No. 16- 01408(KM) 2017 WL 1250988 (D.N.J. Feb. 3, 2017); Pierre v. Retrieval Masters Creditors Bureau, Inc. Case No. 15-2596(FLW) 2017 WL 1102635 (D.N.J. March 24, 2017); Pisarz v. GC Services Limited Partnership, Case No. 16-4552(FLW) 2017 WL 1102636 (D.N.J. March 24, 2017); Fuentes v. AR Resources, Inc. Case No. 15-7988(FLW) 2017 WL 1197814 (D.N.J. March 31, 2017); Bock v. Pressler & Pressler, LLP, Case No. 11-7593(KM)(SCM) 2017 WL 2304643 (D.N.J. May 25, 2017); Genova v. IC System, Inc., 16-5621 (MCA), 2017 WL 2289289 (D.N.J. May 25, 2017); and Lopez v. Law Offices of Faloni & Associates, LLC, 16- 01117(SDW)(SCM) 2017 WL 2399083 (D.N.J. June 2, 2017). In the interest of brevity, Plaintiff will only discuss several of these cases. In Blaha, the plaintiff alleged the defendants made false, deceptive, and misleading statements and representations in violation of §1692e by sending a collection letter offering to Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 18 of 38 PageID: 658 12 settle a time-barred debt without disclosing that the debt was time barred. The defendants argued that Ms. Blaha did not allege a concrete injury because she could only show a hypothetical and speculative injury since she never actually made any payments towards her debt. In finding that Ms. Blaha had Article III standing to bring her FDCPA claim, Judge Walls found, “The stated purpose of the law [FDCPA] was to eliminate abusive debt collection practices and to promote further action to protect consumers against debt collection abuses. The right Congress sought to protect in enacting this legislation was therefore not merely procedural, but substantive and of great importance. Further, the harm claimed by Plaintiff is precisely that which the statute was intended to guard against. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982) (in some cases an injury-in-fact "may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.").” Blaha, Slip Op., at *15-16. (Emphasis added). Finally, in support of his holding, Judge Walls cited to the same Church case that the Horizon Court cited to at Footnote 24. In Carney the defendant’s collection letter sought legal fees that they were not entitled to at the time the letter was sent. The plaintiff alleged that the letter therefore contained false, deceptive, and misleading statements and representations in violation of §1692e. Relying on Spokeo, the defendant argued that the plaintiff did not meet the injury-in-fact requirement for standing because they never made any payment to the defendant, and therefore their injury was not concrete. Judge Martinotti rejected the defendant’s argument holding, “While perhaps ‘intangible,’ the harm is also concrete in the sense that it involves a clear de facto injury, i.e., the unlawful use of false, deceptive and misleading representations in connection with Defendant’s attempts to collect a debt owed by Plaintiffs.” Carney, 2016 WL 7408849 at *5 Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 19 of 38 PageID: 659 13 Citing to Jude Walls decision and Blaha, Judge Martinotti found the alleged injury was concrete and sufficient to confer Article III standing per Spokeo because: The FDCPA unambiguously grants recipients of debt-collection letters (such as Plaintiffs) a right to be free from abusive collection practices. In other words, the FDCPA “create[s] a private duty owed personally to” a consumer to refrain from using false, deceptive, or misleading means or representations in attempting to collect a debt. See Spokeo, 136 S. Ct. at 1554 (Thomas, J., concurring). Because Plaintiffs have a personal statutory right to be free from abusive debt-collection practices, and because Plaintiffs have alleged facts plausibly showing Defendant violated that right, Plaintiffs “need not allege any additional harm.” See id. at 1549 (emphasis omitted). Carney, 2016 WL 7408849 at *5 Finally, in support of his reasoning, Judge Martinotti, like Judge Walls did in Blaha, cited to the Church case that the Third Circuit also cited to with favorability in Horizon. In Pisarz, the plaintiff alleged that GC (the same defendant as in this case) violated §1692e(11) of the FDCPA by failing to provide the statutorily required disclosures under that section. GC Services, like in this matter, moved to dismiss the complaint on the basis that the injury alleged was not concrete and the plaintiff did not meet the injury-in-fact element of standing. Judge Wolfson rejected GC Services argument and found “such a harm is real and concrete, sufficient to meet Article III standing.” Pisarz, 2017 WL 1102636, at *5. In support of her holding, Judge Wolfson cited to the legislative purpose behind Congress enacting the FDCPA and how to curb certain abuses that prompted the FDCPA being enacted, §1692e(11) expressly mandates debt collectors to disclose in the initial written or oral communication with the consumer that "the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose. . . ." Id. at *5 Judge Wolfson also noted, “Importantly, the Legislature provided consumers a private cause of action against debt collectors who fail to comply with the strictures of the Act. See 15 U.S.C. § 1692k.” Id. at *5. After citing to the purpose behind the FDCPA, and how Congress specifically required certain Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 20 of 38 PageID: 660 14 disclosures be provided pursuant to §1692e(11), Judge Wolfson also found, “Contrary to Defendant's contention, Plaintiff's alleged harm is not a mere procedural violation of the FDCPA.” Id. at *5. (Emphasis Added) In finding that not being provided with certain disclosures required by the FDCPA was a concrete injury, Judge Wolfson held in Pisarz, 2017 WL 1102636, at *5: the Supreme Court has long held that "a plaintiff suffers an `injury in fact' when [that] plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute." FEC v. Akins, 524 U.S. 11, 21 (1998)(citing Public Citizen v. Department of Justice, 491 U.S. 440, 449 (1989)) Spokeo reconfirmed this principle. See Nickelodeon, 827 F.3d at 273-74 ("[U]nlawful denial of access to information [statutorily] subject to disclosure" alone sufficiently constitutes injury-in-fact to confer Article III standing) (citing Spokeo,136 S. Ct. at 1549-50). Finally, Judge Wolfson also cited to the same Church case that the Third Circuit in Horizon and Judge Walls in Blaha and Judge Martinotti in Carney also cited to. Judge Wolfson found that while not being given a disclosure in a voicemail that the call is from a debt collector may not have resulted in any economic or physical harm, “Plaintiff, nonetheless, suffered a concrete injury because the alleged deprivation of Plaintiff's right to receive the statutorily mandated disclosures is ‘not hypothetical’ or ‘conjectural.’ Rather, it is a real harm that Congress has elevated to the status of a legally cognizable injury through the FDCPA the plaintiff’s alleged injury therefore satisfied Article III standing.” Id. at * 6. In Lopez, the plaintiff alleged that the defendants violated 15 U.S.C. §§1692e(2) and e(10) by misrepresenting the legal status of their debt, and by using false or deceptive means to attempt to collect that debt, by filing a collection complaint when they were not licensed to purchase Plaintiff’s debt in the first place. Judge Wigenton found this allegation and sufficient to confer standing. Citing to Judge Wolfson’s decision in Fuentes, Judge Wigenton found: What these cases recognize, along with "the ‘overwhelming majority of courts’ that have" addressed this issue, is that § 1692e of the FDCPA provides a "substantive, statutory Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 21 of 38 PageID: 661 15 right . . . to be free from false or deceptive information in connection with the collection of a debt." Fuentes, 2017 WL 1197814 at *5. Violations of this right "give rise to concrete, substantive injuries sufficient to establish Article III standing." Id. at *2 (Emphasis Added) Accordingly, Judge Wigenton found that, “Plaintiff's allegations that Defendants violated her substantive rights under the FDCPA by misrepresenting the legal status of the debt at issue are sufficient to satisfy the concreteness requirement.” Id. at *2. In Genova, the defendant added a collection fee of 17%, which represented their anticipated compensation if they successfully collected on Plaintiff’s debt. Ms. Genova alleged that because IC System, Inc. had not yet recovered any funds from her at the time the letter was sent, it was not then entitled to any contingent fee and she was not liable for any such fee. IC System argued that because Ms. Genova merely received a letter containing a misstatement of a debt—but did not actually pay it—her alleged harm only amounts to a "bare procedural violation" of the FDCPA and was insufficiently concrete to confer Article III standing. Citing to Judge Walls opinion in Blaha, and Judge Marinotti’s opinion in Carney, Judge Arleo held that, “the demand of the payment of a collection fee that had not been incurred and was not authorized by contract or law was concrete and sufficient to confer standing because it: not only arguably violated Plaintiff's substantive rights under the FDCPA, but in creating the false impression that the unauthorized fee was actually authorized, it also increased the risk that Plaintiff would pay an amount in excess of what she actually owed.” These types of harm are "precisely that which the FDCPA was intended to guard against." Carney, 2016 WL 7408849, at *4. Id. at *3. In Bock, Mr. Bock alleged that Pressler & Pressler signed and filed collection complaints in state court without meaningful attorney review in violation of 15 U.S.C. §1692e(3)’s right to be free from "[t]he false representation or implication that any individual is an attorney or that Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 22 of 38 PageID: 662 16 any communication is from an attorney." Judge McNulty held the issue of standing came down to whether the right at issue was procedural in nature or substantive. Id., at *5. Judge McNulty found the right that the defendants violated to be substantive, stating, “the protection that section 1692e provides to shield debtors, or alleged debtors, from a debt collector's use of ‘any false, deceptive, or misleading representation[s] or means in connection with the collection of any debt,’ is substantive.” Id. at *6. In furtherance of this holding, Judge McNulty found: In enacting FDCPA, Congress elevated certain abusive debt collection practices to the status of viable federal causes of action…Among these Congressionally-recognized abuses is "[t]he false representation or implication that any individual is an attorney or that any communication is from an attorney." Id. § 1692e(3). Such a false representation or implication is, in itself, the very conduct Congress expressly sought to proscribe. Thus, the right to truthful information in this context is a substantive right. Id. at * 8. Judge McNulty ultimately held, “the deceptive implication that an attorney was meaningfully involved in the preparation of the collection complaint against Bock violated that substantive right and created a particularized and concrete injury.” Id. at *9. B. Defendant’s Article III standing argument regarding the same Letter at issue in this case has been rejected twice by two different Courts. GC’s exact Article III standing argument in this matter, regarding the exact same letter from GC, with the same legally deficient language at issue in this matter, has been rejected twice by two different courts. In Macy v. GC Services Limited Partnership, 2016 WL 5661525 (W.D. Ky. Sept. 29, 2016) and Dickens v. GC Services Limited Partnership, 2016 WL 3917530 (M.D. Fla. July 20, 2016) the District Courts in Kentucky and Florida respectively, reviewed the exact same letter with the exact same language at issue in this matter. The Macy and Dickens Courts found that the plaintiffs had Article III standing while alleging the exact same facts and violations of the FDCPA as Ms. Kausar, based on the exact same letter from GC. Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 23 of 38 PageID: 663 17 Dickens is particularly important for two reasons. First, Judge Wolfson in Pisarz, 2017 WL 1102636, at *5 specifically cited with favorability to the Dicken’s decision. Second, in Dickens, the Court cited to Church and noted that the case, “found that standing existed in a case nearly identical to this one.” Id. at *2. Specifically, the Dickens court stated: In Church, “the allegation was the same one Dickens makes here: that the defendant debt collector did not include in its correspondence with the plaintiff certain disclosures required by the FDCPA. Noting that standing is a jurisdictional threshold courts must evaluate, the court first found that Congress, through the FDCPA, entitled the plaintiff to certain information, and thus an alleged invasion of this right is not hypothetical or uncertain. It may not result in tangible economic or physical harm, the court noted, but neither does constitutional standing. Id. (citing Spokeo, 136 S. Ct. at 1549). When the plaintiff alleged that the defendant failed to provide information she was entitled to receive, the Court concluded, she alleged a congressionally elevated cognizable injury. Id. She alleged, in other words, a concrete injury. Dickens, 2016 WL 3917530, at *2. (Emphasis Added) In addition to Macy and Dickens, other Courts have held that plaintiffs alleging the same facts and violations as Ms. Kausar have standing per Spokeo. See e.g., Jones v. Advanced Bureau of Collections LLP, 2016 WL 4499456 (M.D. Georgia, Aug. 26, 2016) and Chapman v. Bowman, Heintz, Boscia & Vician, PC, 2016 WL 3247872 (N.D. Ind, June 13, 2016). C. Other Courts have held that individuals in FDCPA cases have standing to bring their cases post-Spokeo. Although the decision was issued only fourteen months ago (May 16, 2016), numerous Courts besides the nine New Jersey Courts mentioned supra, along with the Dickens, Macy, Chapman, Jones, and Church Courts also discussed supra, have analyzed the impact of Spokeo in the context of intangible FDCPA claims. As Judge Wolfson held in Pisarz, 2017 WL 1102636 at *5, "[s]ince Spokeo was decided, the overwhelming majority of courts that have faced Article III standing challenges in FDCPA cases . . . have determined that a violation of the FDCPA produces a `concrete injury.” See e.g., Bautz v. ARS Nat'l Servs., Inc., 2016 WL Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 24 of 38 PageID: 664 18 7422301 (E.D.N.Y. Dec. 23, 2016); Lane v. Bayview Loan Servicing, LLC, 2016 WL 3671467 (N.D. Ill. July 11, 2016) (holding that the potential loss of verification rights was a sufficient “risk of harm” to establish standing per Spokeo); Linehan v. Allianceone Receivables Management, Inc., 2016 WL 4765839, at *8 (W.D. Wash. Sept. 13, 2016) (The goal of the FDCPA is to protect consumers from certain harmful practices; it logically follows that those practices would themselves constitute a concrete injury); Prindle v. Carrington Mortg. Servs., LLC, 2016 WL 4369424 (M.D. Fla. Aug. 16, 2016); Irvine v. I.C. Sys., Inc., 2016 WL 4196812 (D. Co. July 29, 2016); Hayes v. Convergent Healthcare Recoveries, Inc., 2016 WL 5867818 (CD Illinois, October 7, 2016); Dittig v. Elevate Recoveries, LLC, 2016 WL 4447818, (W.D. Pa. Aug. 24, 2016); Sayles v. Advanced Recovery Sys., Inc., 2016 WL 4522822, at *2 (S.D. Miss. Aug. 26, 2016) (“Plaintiff's alleged injury is more than a bare procedural violation, it is the very type of injury Congress sought to eradicate..”). POINT V PLAINTIFF’S INJURY IS PARTICULARIZED There is no question that Ms. Kausar’s injury here is “particularized” – that it “affect[s] [her] in a personal and individual way.” (quoting, Spokeo, 136 S. Ct. at 1548). Like the plaintiff in Spokeo, Ms. Kausar has alleged that GC “violated her statutory rights” by failing to provide required disclosures – in a collection letter sent to her – that to obtain verification of the debt or the name and address of the original creditor that the dispute or request must be “in writing.” Accordingly, the injury suffered by Ms. Kausar is personal to her, and not simply a “nonjusticiable generalized grievance.” (quoting, Spokeo, 136 S. Ct. at 1548, n.7). The false, misleading and deceptive Letter was addressed and mailed to her by GC in an attempt to collect her debt. Therefore, the Letter affected Plaintiff in a personal in individual way and like the Plaintiff in Spokeo, Ms. Kausar’s injury is sufficiently particularized. Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 25 of 38 PageID: 665 19 POINT VI PLAINTIFF’S INJURY IS CONCERETE A. Your Honor’s Holding in Fontanez v. Stern & Eisenberg, P.C. In Fontanez v. Stern & Eisenberg, P.C., Case No. 16-1562(ES) 2016 WL 7104844 (D.N.J. Dec. 5, 2016), Your Honor held that a plaintiff states a claim for relief under §1692g(a)(4) where the collection letter they received omits the “in writing” wording from the statutorily mandated language required by §1692g(a)(4). In Fontanez, the letter at issue, like the Letter sent to Ms. Kausar, failed to disclose that only a written dispute will prompt the debt collector to obtain verification of the debt. Your Honor noted that 15 U.S.C. § 1692g(a) lists certain disclosures that debt collectors are required to provide to consumers, and that “Paragraphs 3 through 5 of §1692g(a) comprise the validation notice, i.e., ‘statements that inform the consumer how to obtain verification of the debt and that he has thirty days in which to do so.’" Fontanez, 2016 WL 7104844, at *3. In denying Stern & Eisenberg, P.C.’s motion to dismiss, Your Honor held that, “Plaintiff states a claim under §1692g(a)(4) because the Collection Letter does not appear to advise Plaintiff that only a written dispute notification will prompt the Defendant to obtain verification of the debt. Id., at *4. Additionally, Your Honor cited to Bicking v. Law Offices of Rubenstein and Cogan, 783 F. Supp. 2d 841 (E.D. Va. 2011) in support of Your reasoning. Bicking held that the omission of the “in writing” wording is also a false, deceptive and misleading representation in violation of §1692e(10), in addition to a violation of §1692g(a)(4). As such, Your Honor has already ruled that GC’s omission in their Letter of the “in writing” and “written request” language from the disclosures required under §1692g(a)(4) and §1692g(a)(5) states a claim for violations of the FDCPA. It is respectfully submitted that when applying the case law cited supra to Your Honor’s decision in Fontanez, Plaintiff has standing. As per Fontanez, Plaintiff has stated a claim that GC failed to provide her with information Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 26 of 38 PageID: 666 20 required to be disclosed pursuant to the FDCPA, and used false, deceptive and misleading representations in connection with the collection of her debt. These injuries are the very injuries the FDCPA is intended to prevent. “There is thus a de facto injury that satisfies the concreteness requirement for Article III standing.” (quoting In Re Horizon, 846 F.3d at 640). B. Plaintiff’s Claims Are Substantive Not Procedural In their Motion to Dismiss, GC continuously argues that Plaintiff’s claim against them is merely procedural in nature. This is simply not true; the alleged violations are substantive in nature. “A ‘procedural right’ is defined as ‘[a] right that derives from legal or administrative procedure; a right that helps in the protection or enforcement of a substantive right.’" In re Michaels Stores, Inc., 2017 WL 354023, at *7 n.12 (D.N.J. Jan. 24, 2017) (quoting Landrum v. Blackbird Enters., LLC, 2016 WL 6075446, at *3-4 (S.D. Tex. Oct. 3, 2016) On the other hand, a "substantive right" is "[a] right that can be protected or enforced by law; a right of substance rather than form." Id. The Michael’s Court further explained the difference between a substantive violation and a procedural one when it comes to informational disclosures required by law as follows, “A statutory right to information is substantive. A statutory right to receive that information in a particular format is procedural.” Id. at *7 n.12 (Emphasis Added). In this matter, as per the Michael’s Court, Plaintiff’s statutory right to receive the information required by §1692g(a)(4) and §1692g(a)(5) was substantive, GC violated this substantive right by not providing Plaintiff with this information, namely that the requests under these sections must be “in writing”. As mentioned above, in Fontanez, Your Honor found GC’s exact conduct of not including the “in writing” wording in a collection letter violated §1692g(a)(4). If GC had provided the information required by §1692g(a)(4) and §1692g(a)(5) to Plaintiff, but did not provide it in a particular format, then their violation, and Plaintiff’s claim, would have been Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 27 of 38 PageID: 667 21 procedural. See, In re Michaels Stores, Inc., 2017 WL 354023, at *7 n.12. Plaintiff’s claim is that GC did not provide her with information required by statute, not that they provided her with the information but did so in the wrong format. As such, GC’s argument that Plaintiff only alleged a procedural violation is incorrect. Because Plaintiff’s right to receive information required by the FDCPA is substantive, and she did not receive the information, she has standing. Post Spokeo case law has consistently held that violations of the FDCPA are substantive in nature and not procedural. Church, which was cited to by Horizon, Blaha, Carney, Thomas, Pisarz, and Bock held that the violations alleged were substantive and not procedural because, “Congress provided individuals with a substantive right to receive certain disclosures and not receiving those disclosures violates that substantive right.” Id. at 995, n.2. Like in Church, Ms. Kausar alleges that GC did not provide her with disclosures required by law, thereby violating her substantive right to receive them. Church’s holding also follows the holding in In re Michaels that a statutory right to receive information is substantive. The cases from this District who have reviewed FDCPA claims after Spokeo have all found that the rights conferred on individuals by the FDCPA are substantive. In Blaha, Judge Walls found, “The stated purpose of the law [FDCPA] was to eliminate abusive debt collection practices and to promote further action to protect consumers against debt collection abuses. The right Congress sought to protect in enacting this legislation was therefore not merely procedural, but substantive and of great importance. Slip Op., at *15-16; (emphasis added) see also Pisarz, 2017 WL 1102636, at *5 (Contrary to Defendant's contention, Plaintiff's alleged harm is not a mere procedural violation of the FDCPA); and Bock, 2017 WL 2304643 at *6 (“the right to truthful information in this context is a substantive right.”) As such, Ms. Kausar’s substantive rights were violated by GC and she has standing to bring her FDCPA claim against them. Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 28 of 38 PageID: 668 22 C. Plaintiff’s Claim Satisfies Both Prongs Of Horizon’s The Two Part Test. As previously discussed supra, the Third Circuit in In Re Horizon, 846 F.3d at 637, held that Spokeo established two tests to determine if an intangible injury is concrete: The first test, the one of history, asks whether "an alleged intangible harm" is closely related "to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American Courts." Id. If so, it is likely to be sufficient to satisfy the injury-in-fact element of standing. Id. But even if an injury was "`previously inadequate in law,'" Congress may elevate it "`to the status of [a] legally cognizable injur[y].'" Id…. Because "Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is ... instructive and important." Id. The second test therefore asks whether Congress has expressed an intent to make an injury redressable. Applying these two tests to Plaintiff’s claim, Plaintiff’s alleged injury is concrete, and therefore satisfies the injury-in-fact element of Article III standing. 1. Plaintiff’s claims have long been actionable in the Anglo-American tradition. Although Plaintiff’s claims need not have a historical pedigree to establish standing, here the harms suffered by Ms. Kausar have a “close relationship to harm[s] that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” (quoting Spokeo, 136 S. Ct. at 1549). Private claims for false, deceptive or misleading representations by a party, regardless of whether that deception has caused any additional injury, have traditionally been regarded as providing a basis for a lawsuit in English or American courts. In Prindle, the Court held in a case with an identical claim to this case – that a debt collector violated 15 U.S.C. §1692e’s prohibition on false, deceptive or misleading representations in a letter sent to the plaintiff – that the plaintiff had standing per Spokeo because their claims for the use of false, deceptive, or misleading representations have been recognized as legally cognizable harms under the common law. The Court in Prindle held: History supports a finding the harm of being subjected to abusive debt-collection practices to be a sufficiently concrete injury. Fraudulent and negligent misrepresentation have been recognized as legally cognizable harms under the common law since at least Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 29 of 38 PageID: 669 23 the publication of the First Restatement of the Law of Torts. See Restatement (1st) of Torts §§ 525, 552 (1938). Moreover, “a number of American jurisdictions” also recognize “a rule of strict liability for innocent misrepresentation of material fact,” at least in the context of a sale, rental, or exchange transaction. See Restatement (2d) of Torts § 552C & Cmt. a (1977). As such, the harm of even an innocent misrepresentation made in attempting to collect a debt “has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English and American courts.” See Spokeo, 136 S. Ct. at 1549. Prindle, 2016 WL 4369424, at *8, n.9. (Emphasis added) In their own motion to dismiss, GC admits that, “the harms resulting from abusive debt collection practices are closely related to harms that traditionally provided a basis for relief in American and English courts, such as fraud.” (ECF No. 44-1 at Pgs 15-16). However, GC later argues that Plaintiff’s claim is not closely related to any traditional bases of relief. The reason for GC’s argument is, “the procedural harm of not receiving informational disclosures from a debt collector is not closely related to any traditional bases of relief.” (ECF No. 44-1 at Pg 18). However, GC’s argument is incorrect for several reasons. First as stated above, not receiving information disclosures required by law is a substantive harm, receiving the disclosures but not in a required format is a procedural harm. In this matter, Plaintiff did not receive certain informational disclosures, and therefore her harm is substantive. Secondly, Plaintiff’s claim under §1692e is not that they did not receive any informational disclosures from GC, but rather the disclosures they did receive were deceptive and misleading because they omitted the “in writing” language. As stated supra, the Bicking case Your Honor cited to in Fontanez held that a plaintiff states a claim under §1692e where a collection letter omits the “in writing” language. Therefore, it is respectfully submitted that the injury addressed by the FDCPA here in this matter has a “clear analog in our common-law tradition,” (quoting Lujan v. Defenders of Wildlife, 504 U.S. 55, 580 (1992) (Kennedy, J., concurring)). Just as the plaintiff in Prindle, Ms. Kausar has standing under the guidelines set forth in Spokeo because the harm she suffered – Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 30 of 38 PageID: 670 24 being subjected to misleading and deceptive representations by GC – has a close relationship to a harm that has traditionally been regarding as providing a basis for lawsuit in English or American Courts.” Prindle, 2016 WL 4369424, at *8, n.9 (quoting Spokeo, 136 S. Ct. at 1549). 2. Congress Expressed An Intent To Make Plaintiff’s Injury Redressable. To understand the nature of Plaintiff’s injuries here, the natural starting point is the creation of the statutory rights that are alleged to have been violated. Congress enacted the FDCPA in 1977 in response to the "abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors." 15 U.S.C. §1692(a). Congress expressly stated that the purpose of the FDCPA is to "eliminate abusive debt collection practices by debt collectors" and "insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged." 15 U.S.C. §1692(e). To combat this serious problem, the FDCPA requires debt collectors like Defendant to send consumers “validation notices” containing certain information about their alleged debts and consumers’ rights in relation to those debts. See 15 U.S.C. § 1692g(a). A debt collector must send this validation notice “[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt,” unless the required information was “contained in the initial communication or the consumer has paid the debt.” Id. Among other things, and pertinent to Plaintiffs’ claims here, this mandatory validation notice must inform the consumer that the debt collector will obtain and mail to her verification of the debt if she disputes the debt in writing within 30 days of receiving the notice, 15 U.S.C. § 1692g(a)(4), and must advise the consumer that upon her written request within 30 days after receipt of the notice, the debt collector will provide the name and address of the original creditor, if different from the current creditor. 15 U.S.C. § 1692g(a)(5). Significantly, if the consumer Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 31 of 38 PageID: 671 25 disputes the debt, or makes such a request for the name of the original creditor, orally rather than in writing, the debt collector is under no obligation to respond, and the consumer has thereby waived the important protections afforded by subsection 1692g(b). Furthermore, the FDCPA contains several provisions aimed at preventing the transmission of inaccurate information, including a broad provision that generally prohibits false, deceptive, or misleading representations or means of all kinds. See 15 U.S.C. §1692e. A subsection of that provision specifically prohibits “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” See, §1692e(10). Together these provisions grant consumers legally protected interests in receiving full and accurate information regarding their rights as the target of a debt collector, and in not being subjected to misleading debt collection communications. Importantly, the Legislature provided consumers a private cause of action against debt collectors who fail to comply with these provisions of the FDCPA. See 15 U.S.C. §1692k. Ms. Kausar’s injury is one that is inherent in the nature of her claim. The false, deceptive, and misleading representations that Ms. Kausar has alleged she was subjected to and the failure of GC to provide her certain information about her rights under §1692g(a)(4) and §1692g(a)(5) are precisely the harms that Congress targeted and intended to guard consumers against by enacting the FDCPA. As the object of a false, deceptive, or misleading representation and by not being provided certain informational disclosures required to be provided to her under the law, Ms. Kausar has suffered injury in precisely the form the FDCPA was intended to guard against. As discussed in detail supra, the case law from this District and Circuit to review the issue of Article III standing for intangible FDCPA claims after Spokeo all supports Plaintiff’s above arguments. The Third Circuit Court of Appeals in Nickelodeon, 827 F.3d at 273-74 held Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 32 of 38 PageID: 672 26 that "[U]nlawful denial of access to information [statutorily] subject to disclosure" alone sufficiently constitutes injury-in-fact to confer Article III standing.” (citing Spokeo, 136 S. Ct. at 1549-50). In this matter, Plaintiff was denied access to information statutory subject to disclosure under the FDCPA, according to the Third Circuit in Nickelodeon this “alone sufficiently constitutes injury-in-fact to concert Article III standing.” (quoting, Nickelodeon, 827 F.3d at 273-74). Like the plaintiffs in Horizon, Ms. Kausar suffered “the very injuries that [the FDCPA] is intended to prevent. There is thus a de facto injury that satisfies the concreteness requirement for Article III standing.” (quoting In re Horizon, 846 F.3d at 640) In Pisarz, like in this matter, the plaintiff’s claim was that they did not receive certain disclosures required by the FDCPA. In Pisarz, Judge Wolfson held the plaintiff suffered a concerte injury because the alleged deprivation of Plaintiff's right to receive the statutorily mandated disclosures is, “‘not hypothetical’ or ‘conjectural.’ Rather, it is a real harm that Congress has elevated to the status of a legally cognizable injury through the FDCPA.” Id. at *6. Judge Wolfson also found “With respect to information injury, the Supreme Court has long held that "a plaintiff suffers an ‘injury in fact’ when [that] plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute. FEC v. Akins, 524 U.S. 11, 21 (1998) (citing Public Citizen v. Department of Justice, 491 U.S. 440, 449 (1989). Spokeo reconfirmed this principle.” Id., at * 5. Like in Pisarz, Ms. Kausar’s did not receive information which must be disclosed pursuant to the FDCPA, that right to receive the statutorily mandated disclosures under §1692g(a)(4) and §1692g(a)(5) is not hypothetical or conjectural. Rather, it is a real harm that Congress has elevated to the status of a legally cognizable injury through the FDCPA and Ms. Kausar’s alleged injury therefore satisfies Article III standing. Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 33 of 38 PageID: 673 27 Like the plaintiff in Blaha, Ms. Kausar alleged, among other things, that GC’s Letter contained false, deceptive and misleading statements and representations in violation of 15 U.S.C. §1692e. As Judge Walls stated, “The right Congress sought to protect in enacting this legislation was therefore not merely procedural, but substantive and of great importance. Further, the harm claimed by Plaintiff is precisely that which the statute was intended to guard against. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982) (in some cases an injury-in-fact "may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.").” Blaha, Slip Op., at *15-16. (Emphasis added). Like the injury claimed by the plaintiff in Blaha, the harm under §1692e claimed by Ms. Kausar (false, misleading, and deceptive representations) is precisely that which the FDCPA was intended to guard against. As such, it is a congressionally elevate injury that satisfies the concreteness prong of the injury-in- fact element of Article III standing. As Judge Martinotti stated in Carney, “The FDCPA unambiguously grants recipients of debt- collection letters a right to be free from abusive collection practices….Because Plaintiffs have a personal statutory right to be free from abusive debt-collection practices, and because Plaintiffs have alleged facts plausibly showing Defendant violated that right Plaintiffs “need not allege any additional harm.” Id. at *5. Like in Carney, Ms. Kausar has a right to be free from abusive debt collection practices, a right Your Honor found in Fontanez to have been violated. As such, like in Carney, Ms. Kausar has alleged a concrete injury and has Article III standing. That Judge Walls in Blaha and Judge Martinotti in Carney both cited to Havens is relevant as Justice Thomas cited to that case in his concurrence in Spokeo as did the Horizon Court. Justice Thomas’s concurrence in Spokeo, explains that when Congress create new private rights – such as those afforded by the FDCPA to receive certain information about one’s rights Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 34 of 38 PageID: 674 28 (§1692g) and to prevent false, deceptive, and misleading representations (§1692e), Article III standing exists once those private rights have been invaded. One of the cases cited by Justice Thomas in furtherance of this principal was Havens. See, Spokeo, 136 S. Ct. at 1553. In Havens, the Supreme Court confronted the same type of problem in this case, whether a person has standing where no tangible harms were alleged. In Havens, the Supreme Court held that a housing-discrimination “tester” had standing to sue based on a violation of his “statutorily created right to truthful housing information.” 455 U.S. at 374. Although the tester had no “intention of buying or renting a home” and “fully expect[ed] that he would receive false information,” the Court held that he had standing because anyone “who has been the object of a misrepresentation made unlawful under [the statute] has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the Act's provisions.” Id. at 373-74 (Emphasis added) The Havens decision, and Justice Thomas citation to it in Spokeo, makes clear that anyone “who has been the object of a misrepresentation” – like the one made by GC in the letter sent to Ms. Kausar, “made unlawful under a statute” – like the FDCPA – “has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the Act's provisions.” (quoting Havens, 455 U.S. at 373-74) Plaintiff has alleged a concrete harm. The harms she alleges she was subjected to are substantive harms, ones the FDCPA was specifically designed to protect her against, and ones that Your Honor found in Fontanez to be violations of the FDCPA. Additionally, post-Spokeo case law – including nine cases from this District – all demonstrate that Plaintiff has satisfied the concrete injury prong of the injury-in-fact element of standing. Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 35 of 38 PageID: 675 29 POINT VII DEFENDANT’S ARGUMENTS ARE LEGALLY FLAWED A. Plaintiff Does Not Have To Allege Risk Of Harm To Establish Standing. GC argues throughout their Motion that Plaintiff has no standing because their Letter carried no “risk of harm.” This argument fails because the Horizon Court held that Spokeo does not require a plaintiff to show a statutory violation caused a material risk of harm. Horizon held, “Although it is possible to read the Supreme Court's decision in Spokeo as creating a requirement that a plaintiff show a statutory violation has caused a "material risk of harm" before he can bring suit, id. at 1550, we do not believe that the Court so intended to change the traditional standard for the establishment of standing.” Id., at 637-38. Furthermore, the Bicking case that Your Honor cited to in Your reasoning in Fontanez, goes into detail about the real risk of harm that omitting the “in writing” and “written response” wording from the disclosures required by §1692g(a)(4) and §1692g(a)(5) carries. Finally, in Macy, the Court found the plaintiff had standing based on the “risk of harm” resulting from the omissions in the same letter as the one Ms. Kausar received. Ms. Kausar alleged the same “risk of harm” as the plaintiff in Macy, i.e., “that as a result of this omission, the least sophisticated debtor might make an oral request instead, thereby waiving the protections of 15 U.S.C. §1692g(b). (Cmplt., ¶44). Therefore, while Ms. Kausar does not need to show a material risk of harm to have standing, it’s clear based on Your Honor’s decision in Fontanez and the Bicking case cited therein, that Plaintiff has sufficiently alleged that GC’s omission in the Letter carried a real risk of harm. B. The Case Law Cited By Defendant Is Inapplicable To This Case. Defendant’s citation to Sartin v. EKF Diagnostics, Inc., 2016 WL 3598297, at *3 (E.D. La. July 5, 2016)—a case under the Telephone Consumer Protection Act (“TCPA”)—does not support GC’s position. The Sartin court merely held that the plaintiff had not made any specific Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 36 of 38 PageID: 676 30 factual allegation as to the harm he suffered, not that a claim based only on a statutory violation was insufficient to confer standing. See Sartin, 2016 WL 3598297, at *3 Defendant’s reliance on Stoops v. Wells Fargo Bank, N.A., 2016 WL 3566266 (W.D. Pa. June 24, 2016)—another case under the TCPA—is similarly misplaced. The court in Stoops found that the plaintiff did not have standing because she filed “TCPA actions as a business” and “admitted that her only purpose in purchasing her cell phones and minutes [was] to receive more calls, thus enabling her to file TCPA lawsuits.” Id. at *9-12. Thus, Stoops is far removed from the scenario here, where Plaintiff was an unwitting target of GC’s debt collection business. Defendant’s heavy reliance on Dolan v. Select Portfolio Servicing, 2016 WL 4099109 (E.D.N.Y. Aug. 2, 2016) is inapplicable for several reasons. First, the reasoning and legal test used by the Court in Dolan was subsequently overturned by the Second Circuit Court of Appeals in Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. Nov. 23, 2016), and thus both Dolan and the legal test used therein are no longer good law. Additionally, post-Strubel case law in the Second Circuit has rejected the Dolan holding in the context of FDCPA cases. See Bautz, (specifically rejecting the holding of Dolan). Secondly, Dolan’s holding is inconsistent with the Third Circuit’s legal test and ruling in In re Horizon. Finally, GC’s attempt to use Dolan to discredit the Church case fails given that the Third Circuit Court of Appeals in Horizon as well as the Blaha, Carney, Thomas, Pisarz, and Bock cases all cited to Church in support of their reasoning. CONCLUSION For the foregoing reasons, Plaintiff, Rukhsana Kausar, respectfully requests that the Motion to Dismiss under Fed. R. Civ. P. 12(b)(1) filed by Defendant, GC Services Limited Partnership be denied. Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 37 of 38 PageID: 677 31 Dated: June 19, 2017 The Law Offices of Gus Michael Farinella, PC /s/ Ryan Gentile By:_____________________________ Ryan Gentile, Esq. 110 Jericho Turnpike – Suite 100 Floral Park, NY 11001 201-873-7675 rlg@lawgmf.com Case 2:15-cv-06027-ES-JAD Document 46 Filed 06/19/17 Page 38 of 38 PageID: 678 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ------------------------------------------------------X Rukhsana Kausar, on behalf of herself and all others similarly situated, Civil Action No: 2:15-cv-06027-ES-JAD Plaintiffs, v. ORDER GC Services Limited Partnership Defendants. ------------------------------------------------------X This matter comes before the Court upon Motion by GC Services Limited Partnership (“Defendant”) to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(1). After considering the submissions of the parties together: IT IS THIS ________ day of ____________________, _______; ORDERED Defendant’s Motion to Dismiss is denied. Case 2:15-cv-06027-ES-JAD Document 46-1 Filed 06/19/17 Page 1 of 1 PageID: 679 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ------------------------------------------------------X Rukhsana Kausar, on behalf of herself and all others similarly situated, Civil Action No: 2:15-cv-06027-ES-JAD Plaintiffs, v. GC Services Limited Partnership Defendants. ------------------------------------------------------X CERTIFICATE OF SERVICE I, Ryan Gentile, being duly admitted to practice law in the State of New Jersey hereby affirm under the penalties of perjury that on June 19, 2017, I served Plaintiff’s Opposition to Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction on the Clerk of this Court using the CM/ECF system. I also certify that the foregoing documents are being served this day on all counsel of record and Parties to this action in the manner specified, either via transmission of Notice of Electronic Filing generated by CM/EFC or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Electronic Filing. /s/ Ryan Gentile, Esq. Law Offices of Gus Michael Farinella, PC 110 Jericho Turnpike – Suite 100 Floral Park, NY 11001 Telephone: (201) 873-7675 Facsimile: (212) 675-4367 E-Mail: rlg@lawgmf.com Attorney for Plaintiff, Rukhsana Kausar on behalf of herself and all others similarly situated Case 2:15-cv-06027-ES-JAD Document 46-2 Filed 06/19/17 Page 1 of 1 PageID: 680