Kausar v. GC Services Limited Partnership

MOTION to Dismiss for Lack of Jurisdiction

D.N.J.October 28, 2016

Mark R. Zancolli, Esq. Carter Ledyard & Milburn LLP 2 Wall Street New York, New York 10005 Telephone: (212) 732-3200 Fax: (212) 732-3232 zancolli@clm.com A ttorneysfor Deftndant, OC Services Limited Partnership RUKHSANA KAUSAR, on behalf of herself UNITED STATES DISTRICT COURT and all others similarly situated, DISTRICT OF NEW JERSEY Plaintiff, 2:1 5-cv-06027-ES-JAD - v. - NOTICE OF MOTION TO DISMISS GC SERVICES LIMITED PARTNERSHIP, Motion Day; November 21, 2016 Defendant. Oral Argument Requested To: Ryan L. Gentile, Esq. Law Offices of Gus Michael Farinella PC 110 Jericho Turnpike, Ste. 100 Floral Park, New York 11001 Attorneys for Plaint~ff PLEASE TAKE NOTICE that, upon the accompanying Brief of Defendant GC Services Limited Partnership in Support of its Motion to Dismiss, dated October 28, 2016, and Declaration of Mark R. Zancolli, dated October 28, 2016, Defendant GC Services Limited Partnership will move this Court, at the Martin Luther King Building & U.S. Courthouse, 50 Walnut St., Newark, New Jersey, 07101, before the Honorable Esther Salas on November 21, 2016, for an Order pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure granting Defendant’s motion to dismiss thereby dismissing the Complaint and each count thereof on the grounds this Court lacks subject matter jurisdiction due to Plaintiffs lack of standing, and granting Defendant such other and fhrther relief as is just and proper. 4836-0840-9147.1 Page 1 of 2 7872553.2 Case 2:15-cv-06027-ES-JAD Document 24 Filed 10/28/16 Page 1 of 2 PageID: 65 CARTER LEDYARD & MILBURN LLP Dated: October 28, 2016 By: Is! Mark R. Zancolli New York, New York Mark R. Zancolli, Esq. 2 WaIl Street New York, New York 10005 Telephone: (212) 732-3200 Fax: (212) 732-3232 zancolli@clm.com Attorneys for Defendant, GC Services Limited Partnership 4836-0840-9147.1 Page 2 of 2 7872553.2 Case 2:15-cv-06027-ES-JAD Document 24 Filed 10/28/16 Page 2 of 2 PageID: 66 Mark R. Zancolli, Esq. Carter Ledyard & Milburn LLP 2 WaIl Street New York, New Yorlc 10005 Telephone: (212) 732-3200 Fax: (212) 732-3232 zancolli@clm.com A Itorneys for Defendant, GC Services Limited Partnership RUKHSANA KAUSAR, on behalf of herself UNITED STATES DISTRICT COURT and all others similarly situated, DISTRICT OF NEW JERSEY Plaintiff, Case No. 2:1 5-cv-06027-ES-JAD -against- Motion Day: November 21, 2016 OC SERVICES LIMITED PARTNERSHIP, Oral Argument Requested Defendant. DEFENDANT GC SERVICES LIMITED PARTNERSHIP’S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 1 of 19 PageID: 67 TABLE OF CONTENTS TABLE OF CONTENTS. ii TABLE OF AUTHORITIES iii BACKGROUND FACTS 1 ARGUMENT 2 PLAINTIFF DOES NOT HAVE STANDING BASED ON AN INTANGIBLE INJURY 9 11 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 2 of 19 PageID: 68 TABLE OF AUTHORITIES Cases Aranda v. Caribbean Cruise Line, Inc., No. 12 C 4069, 2016 U.S. Dist. LEXIS 111828, 2016 WL 4439935 (RD. Iii. Aug. 23,2016) 14 Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013) 8 Federal Election Commission v. Akins, 524 U.S. 11,118 5. Ct. 1777 (1998) 10,11,13 In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 2016 WL 3513782 (3d Cir. 2016) 14 Lujan v. Defenders of Wildl(fe, 504 U.S. 555, 112 S. Ct. 2130 (1992) 2,3,9, 12 Pasley v. Freeman, (1789) 100 Eng. Rep. 450 (K.B.) 450 12 Provo v. Rady Children ‘s Hosp., 2016 U.S. Dist. LEXIS 120174, 2016 WL 4625556 (S.D. Cal. Sept. 6,2016) 8,9, 14 Public Citizen v. Department ofJustice, 491 U.S. 440, 109 S. Ct. 2558 (1989) 10, 11, 13 Riess v. Messerli & Kraniei~ P,A., 2011 U.S. Dist. LEXIS 130621, 2011 WL 5506290 (N.D. Minn. Nov. 10, 2011) 8 S. Development Co. v. Silva, 125 U.S. 247, 8 5. Ct 881 (1888) 12 Sierra Club v. Morton, 405 U.S. 727,92 5. Ct 1361 (1972) 3 Simon v, E. Ky. Welfare Rights Org., 426 U.S. 26,96 S. Ct 1917 (1976) 14 Spokeo, Inc. v. Robins, 578 U.S. , 136 S. Ct. 1540 (2016) 2,3,4,5,6,7,8,9, 10, 11, 12, 14 Summers v. Earth Island Inst., 555 U.S. 488, 129 5. Ct. 1142 (2009) 14 Warth v. Seldin, 422 U.S. 490,95 S. Ct. 2197 (1975) 2, 15 Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717 (1990) 3,8 Statutory Authorities 15 U.S.C. § 1681e 3 15 U.S.C. § 1692 etseq 15 U.S.C. § 1692(e) 5, 12 15 U.S.C. § 1692e(10) 2, 6 15 U.S.C. § 1692g 1,7,9, 12 15 U.S.C. § 1692g(a) 5, 13, 14 15 U.S.C. § 1692g(a)(4) 2, 5, 6, 7, 14 15 U.S.C. § 1692g(a)(5) 2, 5, 6, 7, 14 15 U.S.C. § 1692k 12 111 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 3 of 19 PageID: 69 Rules and Regulations Fed. R. Civ. P.12(b)(1).1,9, 14 Constitutional Provisions U.S. Const.art. III, § 2 2 Legislative Materials S. Rep. No. 95-382 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695 7, 12, 13 Additional Authorities Restatement (Second) of Torts § 525 (1977) 12, 13 4831-5739-0139.1 iv 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 4 of 19 PageID: 70 Defendant, GC Services Limited Partnership, moves the Court to dismiss this action under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction as to all of Plaintiffs claims because Plaintiff lacks standing to bring this suit. BACKGROUND FACTS Plaintiff brings this action on behalf of herself and proposes to do so for others “similarly situated” against Defendant under the Fair Debt Collection Practices Act (“FDCPA”). Plaintiff alleges a certain debt collection letter sent by Defendant to Plaintiff and other consumers violated the FDCPA. See 15 U.S.C. § 1692 etseq. After having been retained by Synchrony Bank to recover a monetary debt owed by Plaintiff, Defendant, on or about June 9, 2015, mailed a letter to Plaintiff informing her of the debt. A copy of the letter at issue (the “Letter”) is attached to Plaintiff’s Complaint as Exhibit A. (A copy of the Complaint is attached as Exhibit 1 to the accompanying Declaration of Mark R. Zancolli, dated October 28, 2016.) The Letter states in pertinent part: 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. Complaint, Exhibit A. Plaintiff contends the Letter violated the FDCPA because it did not contain two separate informational disclosures contained in 15 U.S.C. § 1692g. Complaint, at ¶ 33. In Plaintiffs only count, Count I, Plaintiff argues the Letter violated 15 U.S.C. § 1692g(a)(4) and § 1692g(a)(5) because the Letter “failed to communicate that to be entitled to a verification of the debt under 1 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 5 of 19 PageID: 71 subsection (a)(4) or to obtain the name and address of the original creditor under subsection (a)(5) the request must be in writing.” Complaint, at ¶ 36. Also in Count I, Plaintiff argues the Letter violated 15 U.S.C. § I 692e(1 0) “by failing to disclose in the [Letterl or within five days thereafter information required by 15 U.S.C. § 1692g(a)(4) and 15 U.S.C. § 1692g(a)(5) and as such used a false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” Complaint, at ¶ 46. Plaintiff seeks class certification, statutory damages, but no actual damages, for herself and the putative class, attorney’s fees, litigation expenses, and costs of suit. Complaint, at pp. 13- 14. ARGUMENT The standing doctrine serves to ensure the authority of the federal courts extends only to “cases” and “controversies,” as mandated by Article III of the United States Constitution. U.S. Const. art. III, § 2; accord Spokeo, Inc. v. Robins, 578 U.S., 136 S. Ct. 1540, 1547 (2016). In practice, standing functions as a “threshold question” a litigant invoking federal jurisdiction must satisfy before the court may hear the case. Wart/i v. Seldin, 422 U.S. 490, 498, 95 5. Ct. 2197 (1975). The “irreducible constitutional minimum of standing” is that a plaintiff show (1) an “injury-in-fact” that (2) is “fairly . . . trace[able] to the challenged action of the defendant” and (3) is “likely . . . [to] be redressed by a favorable decision” in court. Lujan v. Defenders of WiId1~fe, 504 U.S. 555, 560-61, 112 S. Ct. 2130 (1992). The burden of these three elements together “ensure[sj that federal courts do not exceed their authority as it has been traditionally understood ... [and] limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spo/ceo, 136 S. Ct. at 1547. 4831-5739-0139.1 2 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 6 of 19 PageID: 72 As did the Supreme Court’s recent opinion in Spokeo, this motion focuses on the first of standing’s three elements: injury in fact. This burden requires a plaintiff show “an invasion of a legally protected interest” that is both “concrete and particularized” as well as “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks omitted). The Supreme Court has “emphasized repeatedly” that an injury “must be concrete in both a qualitative and temporal sense.” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717 (1990). Such an injury must be “distinct and palpable, as opposed to merely [a]bstract.” Id. (citations and internal quotation marks omitted). In other words, “the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S. Ct. 1361 (1972). In Spokeo, a class-action lawsuit brought under the Fair Credit Reporting Act, the Supreme Court discussed the principles of standing and the injury-in-fact requirement. 136 5. Ct. at 1546. Like the FDCPA, the Fair Credit Reporting Act imposes various procedural requirements on consumer reporting agencies in order to ensure credit reporting is fair and accurate. See 15 U.S.C. § 1681e. Spokeo, Inc. is a web-based company that compiles informational “profiles” of persons from various online databases and provides the profiles to users via its website. Spokeo, 136 5. Ct. at 1546. This information can include “the individual’s address, phone number, marital status, approximate age, occupation, hobbies, finances, shopping habits, and musical preferences.” Id. The plaintiff, a private consumer, learned Spokeo had provided incorrect information on the plaintiff to a Spokeo user. Id. The plaintiff sued Spokeo for violating the Fair Credit Reporting Act’s procedural requirements. Id. at 1545-46. The district court found the plaintiff had not alleged an injury in fact and dismissed the complaint for lack of standing. Id. at 1546. The Court of Appeals for the Ninth Circuit reversed. Id. The Ninth Circuit 4831-5739-0139.1 3 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 7 of 19 PageID: 73 held the plaintiffs injury “satisf[ied] the injury-in-fact requirement of Article III” because “Spokeo violated [the plaintiffs] statutory rights, not just the statutory rights of other people.” Id. (quoting 742 F.3d 409, 413-14 (9th Cir. 2014)). The Supreme Court granted certiorari and reversed the Ninth Circuit’s finding of standing. Id. at 1550. It found the Ninth Circuit’s injury-in-fact analysis focused exclusively on whether the plaintiffs injury was particularized. Id. The Supreme Court stated it has “made it clear time and time again” that plaintiffs must establish both a particularized and concrete injury to show injury in fact. Id. at 1548. The Supreme Court held that, “[bjecause the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete.” Id. at 1550. The Court did not determine if the plaintiff ultimately had standing under the Fair Credit Reporting Act and instead remanded the case to the Ninth Circuit for further proceedings. Id. The Supreme Court described the analysis for determining whether an alleged injury is concrete. “[A] concrete injury must be ‘defacto’; that is, it must actually exist.” Ic!. at 1548. Notably, and importantly here as it was in Spokeo, the ability of Congress to create cognizable injuries does not mean a plaintiff can “allege a bare procedural violation [of a federal statute], divorced from any concrete harm, and satis& the injury-in-fact requirement of Article III.” Id. at 1549. The mere fact that “a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right” does not result in automatic standing. Id. Plaintiffs must still show a concrete injury when alleging a statutory violation. Id. There are some circumstances where the injury-in-fact requirement can be satisfied by a bare procedural violation of a statutory right, as long as that violation is still tied to real and concrete harm. See 4831-5739-0139.1 4 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 8 of 19 PageID: 74 id. at 1549-50. In such cases, “a plaintiff. . . need not allege any additional ham~ beyond the one Congress has identified.” Id. at 1549. Here, Plaintiff alleges the Letter she received from Defendant violated various disclosure requirements of the FDCPA. The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The statute accomplishes this purpose in part by providing consumers the right to dispute and seek verification of an alleged debt within thirty days after receiving notice of the debt from a debt collector. Id. § 1692g(b). Once a consumer exercises these rights, the debt collector must “cease collection of the debt” until verification is provided or the dispute is resolved. Id. The FDCPA requires debt collectors inform consumers of these rights via written notification “[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt.” Id. § 1692g(a). Furthermore, “[a]ny collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.” Id. § 1692g(b). Plaintiff contends Defendant violated these disclosure requirements in two ways. First, Plaintiff argues Defendant failed to properly inform her of her rights under the FDCPA because “the [Letter] . . . failed to communicate that to be entitled to a verification of the debt under subsection (a)(4) . . the request must be in writing.” Complaint, at ¶ 36; 15 U.S.C. § I 692g(a)(4). Next, Plaintiff contends Defendant failed to properly inform her of her rights under the FDCPA because “the [Letter] . . . failed to communicate that . . . to obtain the name and address of the original creditor under subsection (a)(5) the request must be in writing.” 4831-5739-0139.1 5 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 9 of 19 PageID: 75 Complaint, at ¶ 36; 15 U.S.C. § 1692g(a)(5). Plaintiff does not allege any injuries beyond these statutory violations. Plaintiffs third and final contention, also within count I, by which Plaintiff alleges Defendant violated 15 U.S.C. § l692e(lO), which prohibits “the use of any false representation or deceptive means to collect or attempt to collect any debt,” is based solely and contingent upon Defendant’s alleged violations of the FDCPA’s disclosure requirements at 15 U.S.C. § 1 692g(a)(4) and § 1 692g(a)(5), upon which Plaintiff bases her first two claims, respectively, discussed supra. A violation of the FDCPA alone, however, does not itself amount to an injury-in-fact. Compare S’polceo, 136 5. Ct. at 1549 (“Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.”). “[A] bare procedural violation [of a statute], divorced from any concrete harm” cannot confer Article III standing. Id. For example, the Spokeo Court stated that even if a consumer reporting agency violated the Fair Credit Reporting Act by “fail[ing] to provide the required notice to a user of the agency’s consumer information,” no concrete harm would result if that information was in fact accurate. Id. at 1550. Similarly, the Court remarked “[ijt is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.” Id. In other words, not all failures to give statutorily mandated notice or accurate information “cause harm or present any material risk of harm.” Id. In this case, all three of Plaintiffs claims relate to Defendant hypothetically interfering with Plaintiffs ability to dispute her debt. In her first of three claims, Plaintiff argues the Letter she received from Defendant violated the FDCPA “because the [Letter] . . . failed to 483 1-5 739-0 139.1 6 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 10 of 19 PageID: 76 communicate that to be entitled to a verification of the debt under subsection (a)(4) . . . the request must be in writing.” Complaint, at ¶ 36. In her second of three claims, Plaintiff argues the Lefter violated the FDCPA “because the [Letterj . . . failed to communicate that . . . to obtain the name and address of the original creditor under subsection (a)(5) the request must be in writing.” Id. In her third and final claim, Plaintiff argues Defendant violated the FDCPA “by failing to disclose in the Letter . . . information required by [subsections (a)(4) and (a)(5), discussed supra] and as such used a false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” Complaint, at ¶ 46. But Plaintiff never even suggested, let alone aver, that she ever intended or attempted to dispute her debt in any way. Plaintiff does not allege the amount of the debt listed at the top of the Letter was incorrect and does not contend the identity of her original creditor is different from the creditor listed in the Letter. Plaintiff does not express any doubt as to the validity of the debt or the identity of the original creditor. In other words, Plaintiff does not argue she suffered any harm at all, let alone the concrete harm the disclosure requirements within section 1 692g of the FDCPA are designed to prevent. See S. Rep. No. 95-382, at 4 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695, 1699 (stating the “[v]alidation of debts” provision in section 1692g of the FDCPA “will eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid”). The fact pattern of Plaintiffs Complaint mirrors the Supreme Court’s illustration of a statutory violation that fails to amount to a concrete injury. See Spokeo, 136 S. Ct. at 1550 (“A violation of one of the [Fair Credit Reporting Act]’s procedural requirements may result in no harm. For example, even if a 483 l~5739-Ol39.l 7 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 11 of 19 PageID: 77 consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate.”). Here, Plaintiff does not allege in her Complaint any injuries beyond statutory violations. Moreover, Plaintiff’s alleged statutory violations did not create any risk of real harm because, as indicated above, Plaintiff did not intend and had no grounds to dispute or challenge the validity of her debt. If a consumer contends the alleged debt owed is incorrect, or merely wishes to verify the debt, then a deficient disclosure of her FDCPA rights could create a risk of real harm because a consumer could inadvertently forfeit her right to validate the debt. Cf Riess v. Messerli & Kramer, PA., 2011 U.S. Dist. LEXIS 130621, 2011 WL 5506290, at *4 (N.D. Minn. Nov. 10, 2011) (finding a consumer intending to dispute his debt was misled by a letter demanding immediate payment before the thirty-day validation window, which “suggested that [the consumer] was out of time and no longer had the option to dispute his debt”). However, because Plaintiff never intended to dispute or validate her debt, Defendant’s alleged failure to disclose Plaintiff’s FDCPA rights in the Letter did not carry the risk of real harm. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (stating the Court has “repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in fact’ and that ‘allegations ofpossible future injury’ are not sufficient”) (quoting Whitmore, 495 U.S. at 158). In Provo v. Rady Children’s Hosp., 2016 U.S. Dist. LEXIS 120174, 2016 WL 4625556, at *2 (S.D. Cal. Sept. 6, 2016), the Southern District of California analyzed the injury-in-fact element following Spokeo. In Provo, the court found the plaintiffs’ allegation that the debt collector’s letter violated the FDCPA was not a concrete injury when “nowhere in the [complaint did the plaintiffs] plead any harm or material risk of harm that they suffered as a consequence.” 4831-5739-0139.1 8 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 12 of 19 PageID: 78 Like the plaintiffs in Frovo, Plaintiffs only allegations here are statutory procedural violations. Accordingly, the Court should find such claims are insufficient to establish concrete injury. Violations of the FDCPA disclosure requirements in section 1692g may result in concrete injuries. However, Plaintiff alleges no such injury. Instead, her only alleged injury is that Defendant did not make the correct disclosures mandated by section 1692g. Such a bare procedural violation alone does not constitute an intangible harm that satisfies the injury-in-fact requirement. Without further alleging a concrete and particularized injury as a result of the FDCPA violations, Plaintiffs claims are insufficient for Article III standing. Consequently, the Court should dismiss Plaintiffs Complaint in accordance with Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction because Plaintiff lacks standing to sue. PLAINTIFF DOES NOT HAVE STANDING BASED ON AN INTANGIBLE INJURY The Supreme Court in Spokeo recognized a plaintiffs injuries do not necessarily have to be “tangible” in order to be concrete. 136 S. Ct. at 1549. “In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles.” Id. “[I]t is instructive to consider whether an alleged intangible harm has a close relationship to a hanii that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. The judgment of Congress is “also instructive and important” because “Congress may ‘elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Id. (quoting Lujan, 504 U.S. at 578). Accordingly, some procedural violations of statutes are, on their own, sufficient to constitute an injury-in-fact. Id. at 1549-50. In such circumstances, “a plaintiff . . . need not allege any additional harm beyond the one Congress has identified.” Id. at 1549. 4831-5739-0139.1 9 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 13 of 19 PageID: 79 The Spokeo Court cited two cases as examples where a statutory procedural violation alone constitutes a concrete injury-Federal Election Commission v. Akins, 524 U.S. 11, 118 S. Ct. 1777 (1998), and Public Citizen v. Department of Justice, 491 U.S. 440, 109 5. Ct. 2558 (1989). Spokeo, 136 S. Ct. at 1549-50. At issue in Akins was whether an organization had to publicly disclose certain information under the Federal Election Campaign Act. 524 U.S. at 13- 14. The Court noted the purpose of the Act is “to remedy any actual or perceived corruption of the political process” by, among other means, “impos[ing] extensive recordkeeping and disclosure requirements upon groups that fall within the Act’s definition of a ‘political committee.” Id. at 14. The Court found the plaintiff voters’ “inability to obtain information [about the organization’s donors]” was a concrete and particular injury in fact. Id. at 21. In Public Citizen, various public interest groups sued the Department of Justice under the Federal Advisory Committee Act for failing to disclose the names of potential federal judicial nominees. 491 U.S. at 447. Addressing a challenge for lack of standing, the Court found “refUsal to permit [the plaintiffs] to scrutinize the ABA Committee’s activities to the extent [the Federal Advisory Committee Act] allows constitutes a sufficiently distinct injury to provide standing to sue.” Id. at 449. In this case, as Plaintiff has not alleged any actual damages, Defendant anticipates that, in response to this motion, Plaintiff will argue the injuries she suffered by being denied information under the FDCPA are analogous to the injuries in Akins and Public Citizen. Plaintiff will likely contend something to the effect that “the Court in Spokeo held that being denied access to information to which an individual is entitled by statute is, on its own, sufficiently concrete.” In other words, an argument that a violation of the FDCPA’s disclosure requirements alone is an intangible harm providing Article III standing. 4831-5739-0139.1 10 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 14 of 19 PageID: 80 However, the procedural violations in Akins and Public Citizen were each considered an injury-in-fact because the violations were tied to a concrete harm, not merely because the plaintiffs were denied access to information. See Spokeo, 136 S. Ct. at I 54930. In Akins, the failure to obtain information prevented the plaintiffs from “evaluat[ing] candidates for public office . . . [and] the role that [an organization]’s financial assistance might play in a specific election.” 524 U.S. at 21. In Public Citizen, the failure to obtain information prevented the plaintiffs from “seek[ingj access to the ABA Committee’s meetings and records in order to monitor its workings and participate more effectively in the judicial selection process.” 491 U.S. at 449. Each injury was in essence the very harm the respective statutes were designed to prevent. See Akins, 524 U.S. at 14 (“[T]he [Federal Election Campaign Act] seeks to remedy any actual or perceived corruption of the political process.”); Public Citizen, 491 U.S. at 446 (“[One] purpose [of the Federal Advisory Committee Act] was to ensure. . . that Congress and the public remain apprised of [new advisory committees’] existence, activities, and cost.”). Accordingly, the plaintiffs in Akins and Public Citizen did not have to “allege any additional harm beyond the one Congress [1 identified.” Spokeo, 136 5. Ct. at 1549. Plaintiffs’ denial of access to statutorily mandated information is not what made the procedural violations in those cases concrete. See Spokeo, 136 5. Ct. at 1550 (stating denial of information mandated by statute “may result in no harm” for standing purposes). Here, to determine whether Plaintiffs alleged FDCPA violations are by themselves sufficiently concrete to confer Article III standing, this Court must examine the provisions at issue and consider both the history of related harms in American and English courts, as well as Congress’ judgment. Spokeo, 136 5. Ct. at 1549. 4831-5739-0139.1 11 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 15 of 19 PageID: 81 The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692(e). The statute seeks “to protect consumers from a host of unfair, harassing, and deceptive debt collection practices.” S. Rep. No. 95-3 82, at 1. congress enacted the FDCPA to be “primarily self-enforcing,” noting “consumers who have been subjected to collection abuses will be enforcing compliance.” Id. at 5. Section 1692k creates civil liability for “any debt collector who fails to comply with any provision of this subchapter with respect to any person.” 15 U.S.C. § 1692k. Congress plainly intended to elevate violations of the FDCPA “to the status of legally cognizable injuries.” Lujan, 504 U.S. at 578. Furthermore, 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. See S. Dcv. Co. v. Silva, 125 U.S. 247, 250, 8 5. Ct. 881 (1888) (defining the legal elements of a civil fraud); Fasley v. Freeman (1789) 100 Eng. Rep. 450 (K.B.) 450 (“A false affirmation, made by the defendant with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action upon the case in the nature of deceit.”); Restatement (Second) of Torts § 525 (1977) (discussing fraudulent misrepresentation). Thus, the FDCPA created the substantive right for consumers to be free from debt collector abuse. To accomplish this goal, the statute mandates various procedures meant to decrease the risk of the above-mentioned injuries. On a general level, each of these procedures helps prevent abusive actions by debt collectors. But this does not mean their violation automatically amounts to the injury identified by Congress in the statute. See Spokeo, 136 S. Ct. at 1550 (“A violation of one of [a federal statutej’s procedural requirements may result in no harm.” (emphasis added)). In this case, Plaintiff alleges Defendant violated the FDCPA’s “validation of debts” provision. Complaint, at ¶ 36; 15 U.S.C. § 1692g. The provision’s purpose is to “eliminate the 4831-5739-0139.] 12 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 16 of 19 PageID: 82 recurring problem of debt collectors dunning the wrong person or attempting to collect debts which tile consumer has already paid.” S. Rep. No. 95-382, at 4. To prevent this, the provision vests consumers with the right to verify any debt they are alleged to owe, and contains various procedures for ensuring that right, including disclosure requirements for debt collectors. See 15 U.S.C. § 1692g(a). A debt collector must provide a consumer, within five days after the initial communication between the consumer and the debt collector, a written notice containing: (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (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 consumers 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. Id. § 1 692g(a). These requirements in section 1 692g(a) are procedural rights designed to decrease the risk of the injury identified by Congress in the FDCPA-abusive debt collection practices in the form of “dunning the wrong person or attempting to collect debts which the consumer has already paid.” S. Rep. No. 95-382, at 4. Although violating these procedural rights may result in the harm identified by Congress, it does not result in such an injury on its own, unlike the procedural violations at issue in Akins and Public Citizen. Although the common law system traditionally provided redress for harms closely related to fraudulent or mistaken demands for payment, see Restatement (Second) of Torts § 525 (discussing fraudulent misrepresentation), the procedural harm of not receiving informational disclosures from a debt collector is not closely related to any traditional bases for relief. Thus, 4831-5739-0139.1 13 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 17 of 19 PageID: 83 the Court should find a violation of FDCPA section 1 692g(a) does not, by itself, constitute an intangible harm that satisfies the injury-in-fact requirement. See Spokeo, 136 S. Ct. at 1549-50; Summers v. Earth Island Inst., 555 U.S. 488, 496, 129 S. Ct. 1142 (2009) (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation-a procedural right in vacuo-is insufficient to create Article III standing.”); In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 2016 WL 3513782, at *8 (3d Cir. 2016) (“What a plaintiff cannot do, according to the Court [in Spokeo], is treat a ‘bare procedural violation... [that] may result in no harm’ as an Article III injury-in-fact.”); Aranda v. Caribbean Cruise Line, Inc., No. 12 C 4069, 2016 U.S. Dist. LEXIS 111828, 2016 WL 4439935, at *5 (N.D. Ill. Aug. 23, 2016) (“The Supreme Court’s point in Spokeo was not that a statutory violation cannot constitute a concrete injury, but rather that where the bare violation of a statute conferring a procedural right could cause a congressionally identified harm or material risk of harm and just as easily could not, it is not sufficient simply to allege that the statute at issue was violated.”). Violations of the FDCPA disclosure requirements in section 1 692g(a)(4) or (5) can result in concrete injuries. However, as the Provo court makes clear, they often cause no injury at all. 1-lere, like the plaintiffs in Provo, Plaintiff alleges no injury. Instead, her complaint is that Defendant did not make certain disclosures contained in sections 1 692g(a)(4) and (5). Such a bare procedural violation alone does not constitute an intangible harm that satisfies the injury-in- fact requirement. Having failed to allege a concrete and particularized injury as a result of any alleged FDCPA violation, Plaintiffs claims are insufficient to provide her Article III standing. Consequently, Plaintiffs Complaint should be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction. See Simon v. E. Ky. Welfare 4831-5739-0139.1 14 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 18 of 19 PageID: 84 Rights Org., 426 U.S. 26, 40 n.20, 96 5. Ct. 1917 (1976) (“That a suit may be a class action adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”) (quoting Warth, 422 U.S. at 502). CONCLUSION For the reasons stated herein, defendant GC Services Limited Partnership respectfully requests that its motion to dismiss be granted in its entirety, together with such other and further relief as this Court deems just and proper. Dated: October 28, 2016 Respectfully submitted, New York, New York By: Is! Mark R. Zancolli Mark R. Zancolli Carter Ledyard & Milburn LLP 2 Wall Street New York, New York 10005 Telephone: (212) 732-3200 Fax: (212) 732-3232 zancolli@clm.com -and- William S. Helfand (admitted pro hac vice) Lewis Brisbois Bisgaard & Smith LLP 24 Greenway Plaza, Ste. 1400 Houston, Texas 77046 Telephone: (713) 659-6767 Attorneys for Defendant, GC Services Limited Partnership 4831-5739-0139.1 15 7872573.2 Case 2:15-cv-06027-ES-JAD Document 24-1 Filed 10/28/16 Page 19 of 19 PageID: 85 Mark R. Zancolli, Esq. Carter Ledyard & Milburn LLP 2 Wall Street New York, New York 10005 Telephone: (212) 732-3200 Fax: (212) 732-3232 zancolli@clm.com Attorneys for Defendant, OC Services Limited Partnership RUKHSANA KAUSAR, on behalf of herself UNITED STATES DISTRICT COURT and all others similarly situated, DISTRICT OF NEW JERSEY Plaintiff, 2:1 5-cv-06027-ES-JAD - v. - DECLARATION OF MARK R. ZANCOLLI IN SUPPORT OF CC SERVICES LIMITED PARTNERSHIP, DEFENDANT’S MOTION TO DISMISS Defendant. Motion Day: November 21, 2016 ________________________________________ Oral Argument Requested MARK R. ZANCOLLI hereby declares as follows: 1. I am a partner of the law firm of Carter Ledyard & Milburn LLP, attorneys for Defendant CC Services Limited Partnership in this action. I submit this declaration in support of Defendant’s motion, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss the Complaint. 2. The statements made herein, including descriptions of documents or other exhibits, are based on my personal knowledge, or a review of records and documents in my possession. 4832-0877-0619.1 Page 1 of 2 7872560. I Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 1 of 22 PageID: 86 3. Attached hereto as Exhibit 1 is a true and correct copy of the Complaint filed in this action on August 5, 2015. Pursuant to 28 U.S.C. § 1746,1 declare under penalty ofperjury that the foregoing is true and correct. Executed on October 28, 2016 Is! Mark R. Zancolli Mark R. Zancolli 4832-0877-0619.1 Page 2 of 2 7872560.1 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 2 of 22 PageID: 87 Exhibit 1 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 3 of 22 PageID: 88 Case 2:15-cv-06027-ES-JAD Document 1 flIed 08/05/15 Page 1 of 14 PagelD: 1 Ryan L. Gentile, Esq. Law Offices of Gus Michael Farinella, PC 110 Jericho Turnpike - Suite 100 Floral Park, NY 11001 Tel: 201-873-7675 Attorney for Plaintiff, Rukhsana Kausar, on behalf of herself and all others similarly situated UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY x RUKHSANA KAUSAR, on behalf of herself Civil Action No. and all others similarly situated, CLASS ACTION Plaintiffs, COMPLAINT v. GC SERVICES LIMITED PARTNERSHIP Defendant. x Plaintiff, by and through her counsel, Ryan Gentile, Esq., as and for her complaint against the Defendant, on behalf of herself and pursuant to Rule 23 of the Federal Rules of Civil Procedure, all others similarly situated, alleges as follows: INTRODUCTION 1. Plaintiff, on her own behalf and on behalf of the class she seeks to represent, brings this action to secure redress for the debt collection practices utilized by the Defendant, GC Services Limited Partnership (“GC” or “Defendant”) in connection with their attempts to collect alleged debts from the Plaintiff and others. 2. Plaintiff alleges that GC’s collection practices violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 4 of 22 PageID: 89 Case 2:15-cv-06027-ES-JAD Document 1 Piled 08/05/15 Page 2 of 14 PagelD: 2 3. The FDCPA broadly prohibits conduct which harasses, oppresses or abuses any debtor; any false, deceptive or misleading statements in connection with the collection of a debt; unfair or unconscionable collection methods; and requires certain disclosures. 15 U.S.C. §~1692d, 1692e, 1692f and 1692g. 4. The FDCPA is a strict liability statute which provides for actual or statutory damages upon the showing of one violation. The Third Circuit has held that whether a debt collector’s conduct violates the FDCPA should be judged from the standpoint of the “least sophisticated consumer.” Graziano v. Harrison, 950 F.2d 107, 111, fns (3d Cir. 1991) JURISDICTION AND VENUE 5. This Court has jurisdiction over the FDCPA claim pursuant to 15 U.S.C. §1692k(d) and 28 U.S.C. §1331. 6. Venue and personal jurisdiction in this District are proper because: a. The acts giving rise to this lawsuit occurred within this District; and b. Defendant does business within this District. PARTIES 7. Plaintiff, Rukhsana Kausar, is an individual natural person who at all relevant times resided in the City of Jersey City, County of Hudson, State ofNew Jersey. 8. Plaintiff is a “consumer” as that term is defined by 15 U.S.C. § I 692a(3). 9. Defendant, GC, at all times relevant hereto, is and was a Limited Partnership regularly engaged in the business of collecting debts within this state with offices located at 6330 Gulfton Houston, TX 77081. 2 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 5 of 22 PageID: 90 Case 2:15-cv-06027-ES-JAD Document 1 Filed 08/05/15 Page 3 of 14 PagelD: 3 10. The principal purpose of GC is the collection of debts using the mail and telephone. 11. GC regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 12. GC isa “debt collector” as that term is defined by 15 U.S.C. § I 692a(6). FACTS 13. Sometime in February of 2015, the Plaintiff allegedly incurred a debt (the “Debt”). 14. The Debt arose out of a transaction in which the money, property, insurance or services which are the subject of the transaction were primarily for personal, family or household purposes, namely fees emanating from a personal credit card debt owed to Synchrony Bank/Brooks Brothers. 15. The personal credit card debt is a “debt” as defined by 15 U.S.C. §1692a(5). 16. Plaintiff is informed and believes, and on that basis alleges, that sometime prior to June 2015, Synchrony Bank/Brooks Brothers either directly or through intermediate transactions assigned, placed or transferred the Debt to CC for collection. 17. The debt was in default and/or delinquent at the time it was placed with GC for collection. 18. On or about June 9, 2015, CC sent a letter to Plaintiff seeking to collect the Debt. (Annexed and attached hereto as Exhibit A is a copy of the letter dated June 9, 2015 sent by CC to the Plaintiff) 19. The Plaintiff received and reviewed the letter attached as Exhibit A. 20. Exhibit A seeks to collect the Debt. 3 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 6 of 22 PageID: 91 Case 2:15-cv-06027-ES-JAD Document 1 Piled 08/05/15 Page 4 of 14 PagelD: 4 21. The letter attached as Exhibit A is a “communication” as that term is defined by 15 U.S.C. §1692a(2). 22. Exhibit A states in relevant part: 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. 23. Exhibit A represents GC’s initial collection “communication” with the consumer as “communication” is defined by the FDCPA. 24. Plaintiff did not receive any other document from GC purporting to contain the initial disclosures required by 15 U.S.C. § 1692g. 25. Upon information and belief, based on the content of Exhibit A, that was the only document GC sent purporting to contain the initial disclosures required by 15 U.S.C. § 1692g. 26. Exhibit A fails to provide the disclosures required by 15 U.S.C. §1692g(a)(4) and 15 u.s.c. §1692g(a)(5) and GC failed to provide Plaintiff with such disclosures within five (5) days thereafter. 27. Gc’s collection practice is a high volume practice. 28. GC’s debt collection practice is largely automated and utilizes standardized form letters. 29. GC, as a matter of pattern and practice, mail or send, or cause to be mailed or sent, communications to alleged debtors that fail to provide the disclosure required by 15 u.s.c. §~1692g(a)(4) and 1692g(a)(5). 4 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 7 of 22 PageID: 92 Case 2:15-cv-06027-ES-JAD Document 1 Filed 08/05/15 Page 5 of 14 PagelD: 5 30. Documents in the form represented by Exhibit A are regularly sent by OC to collect debts. 31. Exhibit A is a standardized form letter which GC uses for the purpose of attempting to comply with 15 U.S.C. §1692g, which was sent, or caused to be sent, over the course of the past year by GC to hundreds of New Jersey consumers from whom GC attempted to collect a debt. CLAIMS FOR RELIEF COUNT I VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 32. Plaintiff incorporates by reference all of the above paragraphs as though fully stated herein. 33. The conduct ofthe Defendant in this case violates 15 U.S.C. §~l692, l692e, 1692e(10), l692g, 1692g(a)(4), and 1692g(a)(5). 34. The FDCPA at Section 1692e provides: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer 35. The FDCPA at Section l692g provides: (a) 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- (1) the amount of the debt; 5 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 8 of 22 PageID: 93 Case 2:15-cv-06027-ES-JAD Document 1 Piled 08/05/15 Page 6 of 14 PagelD: 6 (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (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). 36. GC violated 15 U.S.C. §1692g(a)(4) and §1692g(a)(5) because the letter attached as Exhibit A, as well as letters sent to the putative class members, 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. 37. “Section 1 692g gives debtors the right to dispute a debt and seek verification of the validity thereof within 30 days of receipt of a debt collection letter.” Wilson v. Quadramed Corp., 225 F.3d 350, 354 (3d Cir. 2000) (citing 15 U.S.C. § 1692g(b). 38. “The Act further mandates the debt collector to cease all collection efforts if the consumer provides written notice that he or she disputes the debt or requests the name of the original creditor until the debt collector mails either the debt verification or creditor’s name to the consumer.” Id. (citing 15 U.S.C. § 1692g(b). 6 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 9 of 22 PageID: 94 Case 2:15-cv-06027-ES-JAD Document 1 riled 08/05/15 Page 7 of 14 PagelD: 7 39. “However, if the consumer fails to contact the debt collector within 30 days these rights are lost forever.” Swanson v. Southern Oregon Credit Serv., 869 F.2d 1222, 1225 (9th Cir. 1988). 40. “The debt validation provisions of section 1692g were included by Congress to guarantee that consumers would receive adequate notice of their rights under the law.” Wilson, 225 F.3d at 354. (citing S.Rep. No. 382, 95th Cong., 1st Sess. 4, 8, reprinted in 1977 U.S. Code Cong. & Admin. News 1695, 1699, 1702). To determine whether a debt collector has “effectively conveyed” the validation notice, the United States Court of Appeals for the Third Circuit applies the “least sophisticated debtor” standard. Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006) 41. “The ‘least sophisticated debtor’ standard “requires more than simply examining whether particular language would deceive or mislead a reasonable debtor because a communication that would not deceive or mislead a reasonable debtor might still deceive or mislead the least sophisticated debtor.” Brown v. Card Serv. Ctr., 464 F.3d at 454 (internal quotation marks omitted); see also Rosenau v. Unifuind Corp., 539 F.3d 218, 221 (3d Cir. 2008) (explaining that the least sophisticated debtor standard “is lower than the standard of a reasonable debtor”). The least sophisticated consumer standard “protects naive consumers” while also preventing “liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care.” Wilson, 225 F.3d at 354-55 (internal quotation marks omitted). 7 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 10 of 22 PageID: 95 Case 2:15-cv-06027-ES-JAD Document 1 Filed 08/05/15 Page 8 of 14 PagelD: 8 42. GC’s omission would reasonably lead the least sophisticated consumer 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. 43. GC’s conduct of failing to advise consumers that to be entitled to a verification of the debt under § I 692(a)(4) or to obtain the name and address of the original creditor under § I 692(a)(5) that the request had to be in writing, has previously been held to violate the FDCPA. Grief v. Wilson, Elser, Moskowitz. Edelman & Dicker, LLP, 217 F. Supp. 2d 336, 340-41 (E.D.N.Y. 2002) (“Any consumer, not simply the least sophisticated consumer, who read this letter would not know that to secure her right to obtain verification of the debt and the identity of the original creditor, her dispute of the debt and request for the identity of the original creditor must be in writing.”); Nero v. Law Office of Sam Streeter, PLLC, 655 F. Supp. 2d 200, 206 (E.D.N.Y. 2009) (The validation notice clearly omitted an important term-that the consumer must inform the debt collector in writing to be entitled to verification of the debt pursuant to sub-section (a)(4)); Welker v. Law Office of Daniel J. Horwitz, 699 F.Supp.2d 1164 (S.D. Cal. 2010) (“Accordingly, there can be no dispute Defendant violated the FDCPA insofar as its dunning letter failed to advise [the plaintiff] 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 had to be in writing.”); Yrok Gee Au Chan v. North Am. Collectors, Inc., No. C 06-0016 JL, 2006 WL 778642, at *6 (N.D.Cal. Mar. 24, 2006) (finding a violation of the FDCPA where the validation notice ‘fail[ed] to inform the consumer that he must dispute the debt in writing to preserve his right [under subsection (a)(4)] (emphasis in original)); McCabe v. Crawford & Co., 272 F.Supp.2d 736, 743 (N.D.Ill.2003) ([B]y 8 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 11 of 22 PageID: 96 Case 2:15-cv-06027-ES-JAD Document 1 Piled 08/05/15 Page 9 of 14 PagelD: 9 omitting the words ‘in writing,’ Crawford did not effectively convey to the consumer his rights under [sub-section (a)(4) of] the FDCPA and thus violated the Act). 44. The least sophisticated consumer could certainly interpret GC’s letter to Plaintiff to mean that she would obtain verification of the debt or the identity of the original creditor by contacting Defendant at the telephone number provided. “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 1 692g(b). For example, if debt collector does not inform the 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. Sec Id. 45. GC violated 15 U.S.C. § I 692g(a) by failing to disclose in the letter attached as Exhibit A, or within five days thereafter, the information required by 15 U.S.C. §~ I 692g(a)(4) and 1692g(a)(5). 46. GC violated 15 U.S.C. §1692e(l0) by failing to disclose in the letter attached as Exhibit A or within five days thereafter information required by 15 U.S.C. §1692g(a)(4) and 15 U.S.C. § I 692g(a)(5) and as such used a false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. The false representation is material because could easily mislead the least sophisticated consumer 9 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 12 of 22 PageID: 97 Case 2:15-cv-06027-ES-JAD Document 1 Piled 08/05/15 Page 10 of 14 PagelD: 10 about how to properly request verification and/or the name and address of the original creditor and, therefore, could impede the consumer’s ability to respond. 47. GC is liable to the Plaintiff pursuant to 15 U.S.C. § 1692k because of the FDCPA violations. CLASS ALLEGATIONS 48. Plaintiff incorporates by reference all of the above paragraphs as though fully stated herein. 49. This action is brought as a class action. Plaintiff brings this action on behalf of himself and on behalf of all others persons similarly situated pursuant to Rule 23 of the Federal Rules of Civil Procedure. 50. The class consists of(a) all individuals (b) with a New Jersey address (c) who have received an initial communication letter from GC in the substantially the same form as Exhibit A seeking to collect a consumer debt (d) where the letter was not returned by the post office as undeliverable (e) on or after a date one year prior to the filing of this action and on or before a date 20 days after the filing of this action where (0 the initial letter either failed to communicate that to be entitled to a verification of the debt under §1692g(a)(4) the request must be in writing and/or failed to communicate that to obtain the name and address of the original creditor under §1692g(a)(5) the request must be in writing. 51. The proposed class specifically excludes the United States of America, the states of the Third Circuit, counsel for the parties, the presiding United States District Court Judge, the Judges of the United States Court of Appeals for the Third Circuit and the United States 10 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 13 of 22 PageID: 98 Case 2:15-cv-06027-ES-JAD Document 1 Piled 08/05/15 Page 11 of 14 PagelD: 11 Supreme Court, all officers and agents of Defendant and all persons related to within the third degree of consanguinity or affection to any of the foregoing individuals. 52. This action has been brought, and may properly be maintained, as a class action pursuant to the provisions of Rule 23 of the Federal Rules of Civil Procedure because there is a well-defined community interest in the litigation: i. Numerositv: The Plaintiff is informed and believes and on that basis alleges that the Plaintiff class defined above is so numerous that joinder of all members would be impracticable. Upon information and belief, there are at least 40 members of the class. The exact number of class members is unknown to Plaintiff at this time and can be ascertained only through appropriate discovery. The class is ascertainable in that the names and addresses of all class members can be identified in business records maintained by the Defendant. ii. Common Questions Predominate: There exists a well-defined community of interest in the questions of law and fact involved that affect the parties to be represented. These common questions of law and fact predominate over questions that may affect individual class members. Such issues include, but are not limited to: (a) The existence of the Defendant’s identical conduct particular to the matter at issue; (b) Defendant’s violations of the FDCPA, specifically 15 U.S.C. §l692e and/or 15 U.S.C. §l692g; (c) The availability of statutory penalties; and (d) Attorney’s fees and costs. The only individual issue involves the identification of the consumers who received such collection letters, (i.e. II Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 14 of 22 PageID: 99 Case 2:15-cv-06027-ES-JAD Document 1 FiIed 08/05/15 Page 12 of 14 PagelD: 12 the class members). This is purely a matter capable of ministerial determination from the records of the Defendant. iii. Typicality: The claims of the Plaintiff are typical of those of the class she seeks to represent. The claims of the Plaintiff and of the class originate from the same conduct, practice, and procedure, on the part of the Defendant. Thus, if brought and prosecuted individually, the claims of each class member would require proof of the same material and substantive facts. Plaintiff possesses the same interests and has suffered the same injuries as each class member. Plaintiff asserts identical claims and seeks identical relief on behalf of the unnamed class members. iv. Adcciuacy: Plaintiff will fairly and adequately protect the interests of the class and has no interest adverse to or which directly and irrevocably conflicts with the interests of other members of the class. Plaintiff is willing and prepared to serve this Court and the proposed class. The interests of the Plaintiff are co-extensive with and not antagonistic to those of the absent class members. Plaintiff has retained the services of counsel who are experienced in consumer litigation and will adequately prosecute this action, and will assert, protect and otherwise represent Plaintiff and all absent class members. Neither the Plaintiff nor their counsel has any interests which might cause them not to vigorously pursue the instant class action lawsuit. v. Superiority: A class action is superior to the other available means for the fair and efficient adjudication of this controversy because individual 12 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 15 of 22 PageID: 100 Case 2:15-cv-06027-ES-JAD Document 1 Piled 08/05/15 Page 13 of 14 PageD: 13 joinder of all members would be impracticable. Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum efficiently and without unnecessary duplication of effort and expense that individual actions would engender. 53. Certification ofa class under Rule 23(b)(3) of the Federal Rules of Civil Procedure is appropriate in that the questions of law and fact common to members of the Plaintiff Class predominate over any questions affecting an individual member, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 54. A class action is superior for the fair and efficient adjudication of this matter, in that: a. Individual actions are not economically feasible; b. Members of the class arc likely to be unaware of their rights; c. Congress intended class actions to be the principal enforcement mechanism under the FDCPA. WHEREFORE, the Court should enter judgment in favor of Plaintiff and the class and against Defendant for: 1. An order certi~ing that Count I may be maintained as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure and appointing Plaintiff and the undersigned counsel to represent the Plaintiff Class as previously set forth and defined above. 2. Adjudging that GC violated 15 U.S.C. §~l692e, 1692e(10), 1692g, 1692g(a)(4) and 1692g(a)(5); 13 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 16 of 22 PageID: 101 Case 2:15-cv-06027-ES-JAD Document 1 Piled 08/05/15 Page 14 of 14 PagelD: 14 3. An award of statutory damages for Rukhsana Kausar and the Plaintiff Class pursuant to 15 U.S.C. §1692k; 4. Attorney’s fees, litigation expenses and costs of suit pursuant to 15 U.S.C. §1692k; and 5. Such other and further relief as the Court deems proper. Dated: Floral Park, New York August 5,2015 The Law Offices of Gus Michael Farinella, PC Is! Ryan Gentile By:_________________________ Ryan Gentile (RG0835) Attorney for Plaintiff 110 Jericho Turnpike - Suite 100 Floral Park, NY 11001 Tel: (201) 873-7675 Fax: (212) 675-4367 rlg~lawgmf.corn NOTICE OF ASSIGNMENT Please be advised that all rights relating to attorney’s fees have been assigned to counsel. The Law Offices of Gus Michael Farinella, PC Is! Ryan Gentile By;_________________________ Ryan Gentile 14 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 17 of 22 PageID: 102 JS44 (Rev. I2/I2)Case~r~ijj~øsiis Page 1 of 2 PagelD: 15 The JS 44 civil cover sheet and ihe information contained herein neither replace norsupplenaent the filing arid service ofpIeadin~s or otherpapers as required by law, except as provided by local rules of court. TIus fonn, approved by the Judictal Conference of the United States in September 1974, is required for the use of the Clerk ofCourt for the purpose of initiating the civil docket sheet. ($EE/NStRUCI7ONSONNE\TPAGEOF7’NISFORU.) I. (a) PLAINTIFFS DEFENDANTS (b) County of Residence of First Listed Plaintifr County of Residence of First Listed Defendant (EXCEPTINU.S. PLAINTIFF o~s~cj (IN U.S I’L.4INI1FF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE TRACT OF LAND INVOLVED. ( c) Attorneys (Firm Monte. Aeldrex,t Entail amid ZWe’pko,ie Ntanberj Attorneys (lfkmwmm’n,) II. BASIS OI~ JURI5DICTJONaq0~.05, “X’inOssdflnxOseIy) III. CITIZENSHIP OF PRINCIPAL PARTIES (l’Iacron ‘X”mnOnenoxJhrplainq/J (For Dim’ersiiv Cose.c Omit)’) and One Box for Dcfr,uIamre) 0 I U.S. Govenmtncar 0 3 Federal Question PTF DEF PIT DEF Plaintifi’ als. Govennnenm Nor a Pore’) Cilizcn ofTlria State 0 I 0 I Incorporated or Principal.Plaee 0 4 0 4 of Business In This State 0 2 U.S. Governniemmt 0 4 Diversity Citizen ofAnotlier State 0 2 0 2 Ineoeporaled and Principal Place 0 5 0 5 Defendant UndErage Citixnxhqa ofParties in lain Ill,) ofBuainets In Another Stare Citizen or Subject ofa 0 3 0 5 Foreign Nation 0 6 0 6 Foreign Country IV. NATURE OF SUIT (l’!ace an tV” in One Box Onli’) CONTRACT TORTS IZORFEITUREIPENALTY BANKRIIP1’CY OThER STA’I’UTKS 0 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 15$ 0 375 False Claims Ad 0 120 Marine 0 310 Airplane 0 365 Personal Injury - ofProperty 21 USC 881 0 423 ~vitItdrawaI 0 400 Stale Reapporeionmeni 0 130 Miller Act 0 515 Airplane Prodact Product Liability 0 690 Oilier 21 USC 157 0 410 Atiritntst 0 40 Negotiable Instrtttnent Liability 0 567 Health Care! 0 430 Banks and Banking 0 150 Recovery ofOvcrpaynaent 0 320 Assault, Libel & Pltanaaceulical PROPERTY RIGIITS 0 450 Commerce & Enr’orccnsctt of)udgmctrt Slander Personal Injury 0 820 Copyrights 0 460 Deportation 0 151 Medicate Act 0 330 Federal Employers’ Product Liability 0 830 Patent 0 470 Racketeer lnnucnced and 0 152 Recovery ofDethullcel Liability 0 368 Asbestos Personal 0 840 Trademark Coentpl Organizations Sittdcnm Loans 0 340 Marine ltrjtmry Prodtmct 0 480 Consunter Credil tExctrtles Veteratta) 0 345 Maritse Proeltict Liabiliiy LABOR SOCIAl. SECURI’I’Y 0 490 Cable/Sat ‘l’~ 0 153 Recovery ofOverpaytrscrtt Liability PERSONAL PROPERTY 0 7t0 Fair Labor Siatadards 0 861 lilA (13950) 0 850 Secttrities/Conrmnodities/ ofVetentti’a Bettetits 0 350 Motor Velticle 0 570 Ottter Fraud Act 0 862 Black Lutrg (923) Eseeltatrge 0 I 60 Stockholders’ Suils 0 355 Motor Velticle 0 371 Trutlt in Letsding 0 720 Labor/Managcnment 0 863 DIWCIDIWW (405(g)) 0 890 OlIter Staruloey Actions 0 190 OIlier Cotttract Product Liability 0 380 Otlter Persottal Relaliorts 0 864 SSID Title XVI 0 891 Agricultural Acts 0 195 Cotitradl Product Liability 0 360 OIlier Persot,aI Property Dataage 0 740 Railway Labor Act 0 865 RSt (405(g)) 0 893 Environtnental Matters 0 196 Fraticltise lttjuty 0 38$ Property Dmaaage 0 751 Fanaily attd Medical 0 895 Frcedotn oflmtfonaaatiott 0 362 Perantra] lttjuty - Produci Liability Leave Act Act Medical Malpractice 0 790 OIlier Labor Litigalion 0 896 Arbitration REAL PROPERTY CIVIL RIGIITS PRISONER PETITIONS 0 791 Employee Retiretanent FEDERAL. TAX SUITS 0 899 Adnaittiatrative Peocedure 0 210 Lantd Cottdetaattatioa 0 440 Other Civil Rights habeas Corpus: Inconse Security Act 0 170 Taxes (U.S. Plaititifi’ ActlReview or Appeal of 0 220 Foreclosrtre 0 44 I Voting 0 463 Alien Detainee or Defendatat) Agency Dcciaiatt 0 230 Retit Lease & Ejecttnettt 0 442 Etrtploytnetrt 0 510 Motiotts In Vacate 0 871 IRS-Tlnrd Party 0 950 Cottstirstrionality of 0 240 Torts to Land 0 443 ]lousittgl Semttettce 26 USC 7609 State Statutes 0 245 Tort Prodttct Liability Acconiniodatiomts 0 530 General 0 290 Alt Other Real Property 0 445 Amer. w/Diaabililies - 0 535 Deattt Petsatty IMMIGRATION Etnploymmnettt Other: 0 462 Naturalizaiiotr Applicatiota 0 446 Amer. ~v/Disabitities - 0 540 Mamtdamus & Ottter 0 465 Other ttaanaigration OIlier 0 550 Civil Rights Actions 0 448 Edueaniont 0 555 l’risott Condiliots 0 560 Civil Detainee - Cottditiont of Confinement V. OR I G I N (P/stceott ‘X” in One’ Bay O,tIj9 0 I Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 M1!Itidistriet Proceeding State Court Appellate Court Reopened Another Dtstrtct Ltttgatton Upe’rtfyj Cite the U.S. Civil Statute under which yott are filing (13,’ ito! t’ia’ jnrts’dletionnl statutes ann/eve d!n’erxiQ9: VI. CAUSE OF ACTION Brief description of cause: VII. REQUESTED IN 0 CHECK IFTHIS IS A CLASS ACTION DEMANDS CI’{ECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: 0 Yes 0 No VIII. RELATED CASE(S) (SL’t nt.vtrt,cesesit.v,):IF ANY JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD FOR OFFICE USE ONLY RECEII’]’ C AMOUNT APPLYING IFP JUDGE MAG. JUDGE Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 18 of 22 PageID: 103 JS 44 Reverse (R~Qas~ 2:15-cv-06027-ES-JAD Document 1-1 Efied 08/05/15 Page 2 of 2 PagelD: 16 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The IS 44 civil cover sheet and the information contained hercin neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This fonn, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: l.Q) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations, If the plaintitTor defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. in U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: in land condemnation cases, the county of residence of the ‘defendant’ is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment)”. Ii. Jurisdiction. The basis ofjurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires thatjurisdictions be shown in pleadings. Place an in one of the boxes. If there is more than one basis ofjurisdiction, precedence is given in the order shoxvn below. United States plaintiff. (I) Jurisdiction based 01128 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant, (2) When tile plaintiff is suing the United States, its officers or agencies, place an “X’ in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, wherejurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of tile United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box I or 2 should be marked. Diversity of citizensilip. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. Wilen Box 4 is checked, tile citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) ill, Residence (citizensllip) of Principal Parties. This section of the 1544 is to be completed if diversity of citizenship ‘vas indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an “X” in tile appropriate box. If the nature of suit cannot be determined, be sure thc cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to deterniine the nature of suit, If the cause fits moi’e than one nature of suit, seiect the most definitive. V. Origin. Place an “X” in one of the six boxes. Originai Proceedings. (I) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, cileck this box. Renlandcd froiri Appellate Court. (3) Cileck this box for cases remanded to the district court for further action. Use tile date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date, Transferred from Another District, (5) For cases transferred underTitie 28 U.S.C. Section i404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a inuitidistrict case is transferred into the district under autilonty of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above, VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of tile cause. Do not citejurisdictional statutes unless diversity. Exampie: US; Civil Statute: 47 USC 553 Brief Description: Unautilorized reception of cable service Vii. Requested in Complnint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R,Cv,P. Demand. In tins space enter the actual dollar amount being demanded or indicate other demand, such as a preliminaiy injunction. Jui’y Demand, Check the appropriate box to indicate whether or not ajury is being demanded. ~‘lll. Related Cases. This section of tile JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and tile corresponding judge names far such cases. Date and Attorney Signature. Date and sign tile civil cover sheet. Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 19 of 22 PageID: 104 Case 2:15-cv-06027-ES-JAD Document 1-2 Riled 08/05/15 Page 1 of 3 PagelD: 17 EXHIBIT A Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 20 of 22 PageID: 105 Case 2:15-cv-06027-ES-JAD Document 1-2 ~ ~.?e&$3J’a~eAD: 18 PC Box 1389 Collection Agency Division Copperas cove TX 76522-5389 (877) 431-3767 RETURN SERVICE REQUESTED SEND PAYMENT TO: June 9,2015 Synchrony Bank/Brooks Brothers P0 Box 530942 609373895 Atlanta GA 30353-0942 lIlIIIllIltlIlIIIllllIIllII!IIIIIlllIlIIIlIIIlIllIIIllIlIlIlllllI Rukhsana Kausar Jersey City NJ 07302-3234 Acct. #: ************2514 Balance Due: $347.00 AND RETURN THE UPPER PORTION OF THE STATEMENT WITH YOUR PAYMENT” RE: Brooks Brothers Credit Card Account Dear Rukhsana Kausar, Your Brooks Brothers Credit Card Account, which was issued by and owed to Synchrony Bank, has been referred to us by our client for collection, We wanted to take this opportunity to introduce ourselves and inform you of your rights under the Fair Debt Collection Practices Act, As of the date of this letter, our records show you owe a balance of $347.00 to Synchrony Banic 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 verification of the debt from our client and send it to you. Or, if within 30 days of receiving this name and address of the original creditor, we will provide it to you in the event it differs from Bank. letter, we will obtain letter you request the our client, Synchrony We look forward, to working with you in resolving this account. www.brooksbrothers.com Balance Due: $347.00 Sincerely, Cindy Kreidler Collection Manager Acct. #: ************2514 This Is a communication from a debt collector and is an attempt to collect a debt, any information obtained will be used for that purpose. NOTICE: SEE THE REVERSE SIDE FOR IMPORTANT CONSUMER INFORMATION Gc Services Limited Partnership - collection Agency Division -6330 Gulfton, Houston, TX 77081 ‘56628 Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 21 of 22 PageID: 106 Case 2:15-cv-06027-ES-JAD Document 1-2 IZiled 08/05/15 Page 3 of 3 PagelD: 19 GC SERVICES LIMITED PARTNERSHIP California Residents: The state Rosenthal Fair Debt Collection Practices Act and the federal Fair Debt Collection Practices Act require that, except under unusual circumstances, collectors may not contact you before 8 a.m. or after 9 p.m. They may not harass you by using threats of violence or arrest or by using obscene language. Collectors may not use false or misleading statements or call you at work if they know or have reason to know that you may not receive personal calls at work. For the most part, collectors may not tell another person, other than your attorney or spouse, about your debt, Collectors may contact another person to confirm your location or enforce a judgment. For more information about debt collection activities, you may contact the Federal Trade Commission at 1-877-FTC-Help or ‘~vww.ftc.gov. Colorado Residents: For information about the Colorado Fair Debt Collection Practices Act, see WWW.COLORADOATTORNEYGENERAL.GOV/CA. OC Services, 6330 Sulfton, Houston, TX 77081. A consumer has the right to request in writing that a debt collector or collection agency cease further communication with the consumer. A written request to cease communication will not prohibit the debt collector or collection agency from taking any other action authorized by law to collect the debt. SC Services Colorado office: 621 Seventeenth Street, Suite 2400, Denver, CC 80293, ToIl Free 855-413-3038. Idaho Residents: Veronica Sanchez (800) 275-8966 Massachusetts Residents: 5230 Washington Street, West Roxbury, MA 02132. You may call us collector at the toll free phone number shown on this or the reverse side of this letter, 8:00 a.m. - 9:00 p.m. If you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt and provide to you, or any attorney representing you, additional information described in 940 CMR 7.08(2). Maine Residents: 6330 Gulfton Drive, Houston TX 77081 You may call us collect or at the toll free phone number shown on this or the reverse side of this letter, 8:00 a.m. - 9:00 p.m. CST. Minnesota Residents: This collection agency is licensed by the Minnesota Department of Commerce. North Carolina Department of Insurance Permit Numbers: Columbus-il 0972;Copperas Cove-i ill 32;Elgin- ii 0992;Irwindale-1 1101 2;Jacksonville-1 1 0952;Knoxville- 11 0932;Oklahoma-1 1 1032;Phoenix-i 1 1052;San Antonio 11 1072;San Diego-i 111 52;St. Louis-ill 092;Tucson-1 ill 12;Houston-839;Huntington-101 307. Tennessee Residents: This collection agency is licensed by the Collection Service Board of the Department of Commerce and Insurance. Texas Residents: SC Services Limited Partnership, 6330 Gulfton Drive, Houston, TX 77081. Washington local office: 926 North 14th Street1 Mt. Vernon, WA 98273. Wisconsin Residents: This collection agency is licensed by the Division of Banking in the Wisconsin Department of Financial Institutions, www.wdfi.org. Case 2:15-cv-06027-ES-JAD Document 24-2 Filed 10/28/16 Page 22 of 22 PageID: 107 Mark R. Zancolli, Esq. Carter Ledyard & Milburn LLP 2 WaIl Street New York, New York 10005 Telephone: (212) 732-3200 Fax: (212) 732-3232 zancolli@clm.com Attorneysfor Defendant, GC Services Limited Partnership RUKHSANA KAUSAR, on behalf of herself UNITED STATES DISTRICT COURT and all others similarly situated, DISTRICT OF NEW JERSEY Plaintiff, 2:1 5-cv-06027-ES-JAD -v. - ORDER GC SERVICES LIMITED PARTNERSHIP, Defendant. Defendant GC Services Limited Partnership, seeking an Order granting its motion to dismiss the Complaint of Plaintiff (the “Motion”) pursuant to Federal Rule of Civil Procedure 1 2(b)(1), and the Court having considered all papers submitted in connection with the Motion and good cause appearing; ITIS,onthis ____ dayof ,2016, ORDERED that this action is dismissed with prejudice on the grounds that this Court lacks subject matter jurisdiction because Plaintiff lacks standing. ESTHER SALAS, U.S.D.J. 48324049-0043.1 7872567.2 Case 2:15-cv-06027-ES-JAD Document 24-3 Filed 10/28/16 Page 1 of 1 PageID: 108 Mark R. Zancolli, Esq. Carter Ledyard & Milburn LLP 2 Wall Street New York, New York 10005 Telephone: (212) 732-3200 Fax: (212) 732-3232 zancolli@clm.com Attorneysfor Defendant, OC Services Limited Partnership Defendant. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY 2:1 5-cv-06027-ES-JAD CERTIFICATE OF SERVICE I hereby certify that on October28 2016, that the Notice of Motion to Dismiss, Defendant GC Services Limited Partnership’s Brief in Support of its Motion to Dismiss, Declaration of Mark R. Zancolli and Proposed Order were served on Plaintiff via ECF and Federal Express to: Ryan L. Gentile, Esq Law Offices of Gus Michael Farinella PC 110 Jericho Turnpike, Ste. 100 Floral Park, New York 11001 I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: October 28, 2016 /s/ Mark R. Zancolli Mark R. Zancolli 4827-3402-5275.1 Page 1 of 1 RUKHSANA KAUSAR, on behalf of herself and all others similarly situated, - v. - GC SERVICES LIMITED PARTNERSHIP, Plaintiff, 7872553.2 Case 2:15-cv-06027-ES-JAD Document 24-4 Filed 10/28/16 Page 1 of 1 PageID: 109 CARTER LEDYARD & MILBURN LLP Counselors at Law 2 Wall Street Mark Ii. Zancolli New York, NY 10005-2072 Partner 570 Lexington Avenue Tel (2/2) 732-3200 Ne,,’ York, NY 10022-6856 Direct Dial: 212-238-8735 Fax (212) 732-3232 ~fl2,) 371-2720 E-mail ~ancolli@cln,. coin October 28, 2016 VIA FEDERAL EXPRESS AND ECF Hon. Esther Salas United States District Judge United States District Court for the District of New Jersey Martin Luther King Building & U.S. Courthouse 50 Walnut Street Newark, NJ 07101 Re: Kausar v. GC Services Limited Partnership 1 5-cv-06027-ES-JAD Dear Judge Salas: We represent Defendant GC Services Limited Partnership in the above-referenced action. Enclosed are two courtesy copies of the following papers filed today in connection with Defendant’s motion to dismiss the Complaint: 1) Notice of Motion, dated October 28, 2016; 2) Brief, dated October 28, 2016; 3) Declaration of Mark R. Zancolli, dated October 28, 2016; 4) Proposed Order; and 5) Certificate of Service. Thank you for your attention to this matter. MRZ:mz Enclosures cc: Ryan Gentile, Esq. (via Federal Express and ECF) Attorneyfor Plainttff mitted, 7872702.1 Case 2:15-cv-06027-ES-JAD Document 24-5 Filed 10/28/16 Page 1 of 1 PageID: 110 CARTER LEDYARD & MILBURN LLP Counselors at Law 2 Wall Street Mark It Zancollj New York, NY 10005-20 72 Partncr • 570 Lexi,zglon Avenue Tel (212) 732-3200 New York, NY 10022-6856 Direct Dial: 212-238-8735 Fax (212) 732-3232 (212) 371-2720 E-mail :ancolli@chn.co’ii October 28, 2016 VIA FEDERAL EXPRESS AND ECF Hon. Joseph A. Dickson United States Magistrate Judge United States District Court for the District of New Jersey Martin Luther King Building & U.S. Courthouse 50 Walnut Street Newark, NJ 07101 Re: Kausar v. GC Services Limited Partnership 1 5-cv-06027-ES-JAD Dear Judge Dickson: We represent Defendant GC Services Limited Partnership in the above-referenced action. Enclosed is a courtesy copy of the following papers filed today in connection with Defendant’s motion to dismiss the Complaint: 1) Notice of Motion, dated October 28, 2016; 2) Brief, dated October 28, 2016; 3) Declaration of Mark R. Zancolli, dated October 28, 2016; 4) Proposed Order; and 5) Certificate of Service. Thank you for your attention to this matter, Respectfully s ~itted, MRZ:mz rk R. Z colli Enclosures cc: Ryan Gentile, Esq. (via Federal Express and ECF) Attorneyfor Plaintjff 7872699.1 Case 2:15-cv-06027-ES-JAD Document 24-6 Filed 10/28/16 Page 1 of 1 PageID: 111