IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COLEMAN McCALL, JR., individually : CIVIL ACTION

and on behalf of all others similarly :

situated, :

:

Plaintiff, :

:

v. : NO. 05-CV-2463

:

DRIVE FINANCIAL SERVICES, L.P. :

and :

DRIVE GP, LLC, :

:

Defendants. :

Anita B. Brody, J. July 20, 2006

MEMORANDUM AND ORDER

Coleman McCall, Jr. (“McCall”), as named Plaintiff, brings this class action against

Defendants Drive Financial Services, L.P. and Drive G.P., LLC (collectively, “Drive”) for

violation of the Fair Debt Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C. §1692. 

This court has jurisdiction pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d). Before me is

Plaintiff’s Motion in Limine to Determine Available Statutory Damages. (Doc. #21.)

 Plaintiff seeks statutory damages under the FDCPA for a misleading letter sent by

Defendant to each member of the certified class. On June 19, 2006, I certified a class of roughly

204 persons who met the following criteria: “All persons with addresses in the Commonwealth

of Pennsylvania to whom letters were sent by Drive Financial on the ostensible letterhead of

Thomas Asturias, Attorney at Law, but were sent by Drive, not Asturias, in an attempt to collect

a debt incurred primarily for personal, family or household purposes since May 25, 2004, which

is the period one year prior to the filing of the Complaint in this action.” Doc. #31. 

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DISCUSSION

Section § 1692k(a) of the FDCPA measures the maximum aggregate liability of a debt

collector who engages in abusive, deceptive, or unfair debt collection practices. 15 U.S.C. §

1692k(a). The section provides: 

(a) Amount of Damages. Except as otherwise provided by this section, any debt

collector who fails to comply with any provision of this subchapter with respect to

any person is liable to such person in an amount equal to the sum of--

(1) any actual damage sustained by such person as a result of such failure;

(2)(A) in the case of any action by an individual, such additional damages

as the court may allow, but not exceeding $1,000; or

(B) in the case of a class action, (i) such amount for each named plaintiff

as could be recovered under subparagraph (A), and (ii) such amount as the

court may allow for all other class members, without regard to a minimum

individual recovery, not to exceed the lesser of $500,000 or 1 per centum

of the net worth of the debt collector; and

(3) in the case of any successful action to enforce the foregoing liability,

the costs of the action, together with a reasonable attorney's fee as

determined by the court. . . . 

The parties in the present case disagree as to the proper interpretation of the amount of statutory

damages recoverable under (a)(2)(B).

The first step in statutory construction is to determine “whether the language at issue has

a plain and unambiguous meaning with regard to the particular dispute in the case.” Barnhart v.

Sigmon Coal, 534 U.S. 438, 450 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340

(1997)). If the statute is unambiguous, and “the statutory scheme is coherent and consistent,” the

inquiry ends. Id. (internal quotations omitted). “Statutory construction is a holistic endeavor.” 

Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004) (internal quotations omitted). 

“A provision that may seem ambiguous in isolation is often clarified by the remainder of the

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statutory scheme–because the same terminology is used elsewhere in a context that makes its

meaning clear, or because only one of the permissible meanings produces a substantive effect

that is compatible with the rest of the law.” Id. (quoting United Sav. Ass’n of Tex. v. Timbers of

Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988).

Because § 1692k(a) is unambiguous, its plain text controls. The controlling introductory

language of subsection § 1692k(a) provides that: 

[A]ny debt collector who fails to comply with any provision of this subchapter with

respect to any person is liable to such person in an amount equal to the sum of. . . . 

Thus subsection (a) as a whole decides the maximum aggregate amount a debt collector may owe

to each person to whom the debt collector is liable. This amount is calculated by adding together

the actual damages, statutory damages, and the costs of the litigation, including attorney’s fees.

15 U.S.C. § 1692k(a)(1), (a)(2), (a)(3). Because this motion only addresses the calculation of

statutory damages under the section, only (a)(2), governing statutory damages, requires

interpretation. 

In an action brought by an individual, the amount of statutory damages is such amount

“as the court may allow, but not exceeding $1,000.” 15 U.S.C. § 1692k(a)(2)(A). This means,

plainly, that in an individual action, a court may allow damages less than $1,000, but no more. 

In a class action, the amount of statutory damages the class may recover includes first

“such amount [of statutory damages] for each named plaintiff as could be recovered under

subparagraph (A).” 15 U.S.C. § 1692k(a)(2)(B)(i). Thus, a class recovery includes up to $1,000

per named plaintiff. Added to this, the class recovery then includes “such amount as the court

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 We know that this amount is to be added to the $1,000 per named plaintiff under

(a)(2)(B)(i) because the two clauses under (a)(2)(B) are joined by the word, “and.”

2

 The statute does not specifically decide how this amount is divided among the plaintiff

class members, but obviously class member awards under the FDCPA are calculated in the same

manner as in any other class action.

3

 15 U.S.C. § 1692k(b) provides:

(b) Factors considered by court. In determining the amount of liability in any action under

subsection (a) of this section, the court shall consider, among other relevant factors--

(1) in any individual action under subsection (a)(2)(A) of this section, the frequency and

persistence of noncompliance by the debt collector, the nature of such noncompliance,

and the extent to which such noncompliance was intentional; or 

(2) in any class action under subsection (a)(2)(B) of this section, the frequency and

persistence of noncompliance by the debt collector, the nature of such noncompliance, the

resources of the debt collector, the number of persons adversely affected, and the extent

to which the debt collector's noncompliance was intentional.

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may allow for all other class members . . . not to exceed $500,000.”1 Thus, under a plain reading

of this text, the maximum potential liability of a defendant is $1,000 multiplied by the number of

named plaintiffs plus $500,000, in this case $501,000.2 

This does not mean that the court in every case will grant the maximum award. Instead,

the court, in making its determination of the amount available under paragraph (a)(2)(B), must 

consider the factors set forth in paragraph (b)(2), including “the frequency and persistence of

noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt

collector, the number of persons adversely affected, and the extent to which the debt collector’s

noncompliance was intentional.” 15 U.S.C. § 1692k(b)(2).3 These factors do not address the

amount an individual class member may recover. In the present case, therefore, Drive could

potentially be liable to the class for $501,000, with no statutorily dictated maximum per member. 

The amount actually available at trial could be lower, however, based upon the (b)(2) factors.

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 The question of to whom the debt collector is liable is answered by the controlling

introductory language of the section: “any person” with respect to whom the debt collector has

not complied with the Act. Whether the “person” is an individual or a class of persons then

directs a statutory damages inquiry either to (a)(2)(A) or (a)(2)(B).

5

Defendants argue that under (a)(2)(B), the recovery awarded to the named plaintiff is

separate from the recovery awarded to “all other class members.” They cite several district court

decisions supporting this proposition. See Defs.’ Br. In Opp. To Mot. In Limine, Doc. #23 at 14-

15. While such a reading may be possible if reading (a)(2)(B) in isolation, having read the

statute holistically, I respectfully disagree with these decisions.4 Subparagraph (a)(2)(B) adds

together “such amount for each named plaintiff” and “such amount . . . for all other class

members.” If (a)(2)(B) were meant to separate these amounts into discrete awards, the section

would, in the class action context, award an amount to each named plaintiff and an amount to all

other class members. Defendants’ interpretation misunderstands the nature of the award under

the section: the section provides one award in the case of an individual action (the award under

(a)(2)(A)), and one award in the case of a class action (the award under (a)(2)(B)). 

This reading of the statute is consistent with the Third Circuit’s decision in Weiss v.

Regal Collections, 385 F.3d 337 (3d Cir. 2004). Defendants argue, without direct textual

support, that Weiss “makes clear that the maximum statutory relief available to a class

representative in a FDCPA case is $1,000.” Defs.’ Br. In Opp. To Pl.’s Mot. For Class Certif. at

13. Defendants’ interpretation is incorrect. In Weiss, the Third Circuit did not specifically

address this issue. Rather, the Weiss Court held that a Rule 68 offer of judgment of $1,000 prior

to class certification was sufficient to moot a named plaintiff’s claim as an individual, but not the

claims of the putative class. Defendants argue that if Weiss, as class representative, had been

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entitled to a share of the recovery, then $1,000 would not have been sufficient to moot his claim. 

Defendants ignore the specific language used by the court: “[T]he Rule 68 offer provided all the

relief available to Weiss as an individual plaintiff acting in his personal capacity.” Weiss, 385

F.3d at 342 (emphasis added). The factual circumstances in the present case are different from

those in Weiss: here, a class has been certified, and no individual claim under (a)(2)(A) exists –

only the claim of the class under (a)(2)(B).

CONCLUSION

For the foregoing reasons, I hold that the defendants in this class action are potentially

liable under the FDCPA for statutory damages of at most $501,000, subject to consideration of

the factors enumerated in § 1692k(b)(2). Because I find that § 1692k(a) calculates the amount of

a defendant’s liability, and not the apportionment of said amount, I also hold that § 1692k(a)

does not limit the share of the class award that any class member, including McCall, may receive. 

An appropriate order follows.

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ORDER

AND NOW, this __20th ___ day of July, 2006, it is ORDERED that Plaintiff’s Motion in

Limine to Determine Statutory Damages (Doc. #21) is resolved as follows:

(1) The maximum amount of statutory damages potentially available to the

certified class is $1,000 per named plaintiff plus $500,000, or $501,000, subject

to the Court’s treatment of the factors laid out in 15 U.S.C. § 1692k(b); and

(2) 15 U.S.C. § 1692k(a) does not limit the share of the award to be received by

each class member to $1,000.

 

 ANITA B. BRODY, J.

Copies VIA ECF on to: Copies MAILED on to:

O:\ABB 2006\McCall statutory damages.wpd

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