Messer Strickler Welcomes Two New Associates to Florida Office

Messer Strickler, Ltd. is thrilled to announce the addition of two new associate attorneys to its Jacksonville, Florida office. Nicole D. Saunders and Erin F. Heaney joined the firm in September of 2019. Prior to joining Messer Strickler, Ms. Heaney clerked for the Honorable Timothy J. Corrigan and the Honorable James R. Klindt of the United States District Court for the Middle District of Florida. Ms. Saunders comes to Messer Strickler from the Florida State’s Attorney office, where she prosecuted hundreds of misdemeanor and felony cases . Messer Strickler is pleased to welcome both new associates.

Illinois to Adopt New Employment Law Regulating Use of Artificial Intelligence in Job Interviews

Has Illinois proved itself at the forefront of developing technologies in the context of employment law? The Artificial Intelligence Video Interview Act (“the Act”) has been passed by Illinois lawmakers as of May 29, 2019, which regulates the use of Artificial Intelligence in the employment sector.

 The Act applies to any employer who conducts video interviews of job applicants and who may use Artificial Intelligence (“AI”) to determine an applicant’s fitness for the job. The Act requires employers to be transparent, obtain the applicant consent, and employ procedural mechanisms for the protection of applicant privacy.

 Under the Act, an employer must first disclose to the applicant that AI may be used to analyze the applicant’s interview video and consider the applicant’s fitness for the position. An employer is required to provide each applicant with a description of how AI will be used and describe the characteristics it uses to evaluate applicants. After disclosure, the employer must then obtain the consent of the applicant for its use of AI prior to the video interview. The employer may not use AI to evaluate applicants who have not given their consent for its use.

 The Act also mandates restrictions on the employers sharing of applicant videos and requires that video interviews be shared only with persons whose expertise or technology is necessary for evaluating an applicant’s fitness for the job. Finally, an applicant may request deletion of its video interview, then requiring the employer to delete the video interview, any copy thereof, 30 days after receiving the request for deletion.

Once Governor Pritzker signs the Act into law as expected, Illinois will be at forefront of regulating the use of developing technologies in the employment sector. But confusion is likely to abound since AI is not defined by the Act. Accordingly, those intending to use smart technology in the employment process should check with qualified counsel first.

Feel free to contact Joseph Messer if you have questions regarding this new law. Mr. Messer can be reached at jmesser@messerstrickler.com or (312) 334-3440

U.S. SUPREME COURT CREATES NEW STANDARD FOR DISCHARGE CONTEMPT SANCTIONS

Recently, the United States Supreme Court redefined the standard to which a creditor can be held responsible for a violating a bankruptcy discharge order. The Court’s decision in Taggart v. Lorenzen rejected the U.S. Court of Appeals for the Ninth Circuit’s “good-faith” subjective standard—an unpopular standard for many—and created a new “fair ground of doubt” standard. Under the new standard, if objectively there is fair ground of doubt as to whether the discharge order applies, creditors cannot be held in contempt of a discharge order. Nicole Strickler of Messer Strickler, with colleague June Coleman, submitted an amicus brief on behalf of the National Creditors Bar Association.  

            Bloomberg Law wrote about this decision in a June 3rd article, “Supreme Court Clarifies When Creditors Can Collect in Bankruptcy”, and sought commentary from Nicole Strickler on the ruling. Ms. Strickler was quoted in saying, “the Supreme Court’s new standard is good news for creditors because it recognizes that reasonable minds may differ, and in such cases, creditors shouldn’t be punished.” Ultimately, those in the credit and collection industry should be pleased with the Supreme Court’s standard.

 

Federal District Court Dismisses FDCPA Class Action For Lack of Standing

In Pozzuolo v. Portfolio Recovery Assocs., LLC, 2019 U.S. Dist. LEXIS 60680 (4/9/19)  the U.S. District Court for the Eastern District of Pennsylvania dismissed the named plaintiff of a putative class action lawsuit finding that he lacked standing to bring the lawsuit.  The plaintiff was seeking to represent a class of persons who received validation notice letters from the defendant which allegedly violated the FDCPA by stating that disputes could be made telephonically while the FDCPA requires that they be in writing.  Citing the U.S. Supreme Court’s Spokeo decision, the Defendant moved to dismiss for lack of subject matter jurisdiction arguing that Defendant had not suffered concrete injury.  The Court agreed, pointing to the fact that the plaintiff had testified that he had “merely skimmed the letter and had no intention to dispute the debt.”  The Court also pointed out that the Defendant treats telephonic disputes in the same way is it treats written disputes.  Ultimately the Court held that Plaintiff’s allegations, even if true, at best stated a mere procedural violation of the FDCPA. 

 

Moral of the Story 

Don’t give up on Spokeo.  Although Spokeo has not been the panacea which many had hoped for, it can still be useful in supporting the dismissal of a lawsuit alleging a mere procedural FDCPA violation.  Often times, however, it will be necessary to develop evidence of lack of “concrete” harm during the discovery process before Spokeo can be relied upon to dispose of the case.  

7th Circuit Dings Plaintiff’s Attorney Mario Kasalo On Attorneys’ Fees

In Paz v. Portfolio Recovery Associates, LLC, No. 17-3259 (4/2/19) the U.S. Court of Appeals for the 7th Circuit upheld the district court’s award of $10,875 in attorney fees to the plaintiff’s attorney, Mario Kasalo, despite his petition for $187,410 in fees after prevailing at trial in a lawsuit brought under the Fair Debt Collection Practices Act and Fair Credit Reporting Act.  The 7th Circuit criticized Mr. Kasalo for not settling the case early on, stating “Sometimes settling a case is the only course that makes sense. This case provides a good example.”  At trial plaintiff was awarded only $1,000 in damages on a single FDCPA claim while defendants had prevailed in lion's share of plaintiff's other claims. Importantly, the Court noted that plaintiff had disregarded multiple offers to settle the lawsuit both at outset of action and after defendant had prevailed on summary judgment. The 7th Circuit held that when determining the reasonableness of the fee request it was appropriate for the district court to consider the fact that plaintiff had rejected the defendant’s Rule 68 Offer of Judgment and series of settlement offers, the last one of which if accepted would have settled case for $3,501 plus reasonable fees. The 7th Circuit further held that the $3,501 plus fees offer was reasonable, where it was more than three times maximum statutory damages that plaintiff could receive, and the district court could conclude that vast majority of fees requested by plaintiff's counsel was for time spent on pursuing unsuccessful and ill-advised efforts to win a much bigger payoff than what was remotely possible. 

 

Moral of the Story 

This decision illustrates the importance of making and documenting a good faith offer to settle a lawsuit where liability is likely, and to do so early in the litigation before plaintiff’s counsel racks up substantial fees.  If plaintiff’s counsel persists and ultimately wins, the offer can be extremely helpful in reducing their fee award. 

Nicole Strickler and Joe Messer Speak at 2019 NCBA Conference

Nicole and Joe spent the week in the great state of Minnesota at the bi-annual National Creditors’ Bar Association’s conference. Nicole spoke with NCBA Government Affairs Officer Nathan Willner giving an update as to the CFPB’s latest and greatest, including a summary of the new CFPB proposed debt collection rules that were released on May 8, 2019. Nicole also participate in NCBA’s first “CRED Talks”, a TED talk style presentation on those issues affecting collection attorneys. Joe rounded out the week with a discussion of the latest developments in TCPA litigation. The conference, as usual, was a valuable networking and education opportunity for those in the credit and collection industry.

Victory in the Seventh Circuit in Bona Fide Error Case

Appellate decisions on the FDCPA’s bona fide error defense are rare. Even rarer are those upholding a grant of summary judgment on the bona fide error defense to a law firm.. Messer Strickler is pleased to report another total defense victory in the case of Abdollahzadeh v. Mandarich Law Group, 2019 U.S. App. LEXIS 12887 (7th Cir April 29, 2019).

In Abdollahzadeh, a law firm inadvertently filed a collection lawsuit against a consumer that was outside of the statute of limitations as a result of an inaccurate last payment date transmitted to it from the original creditor through its client. Specifically, the date of last payment reflected a bounced payment, as opposed to a payment that had cleared. When the consumer moved to dismiss, Mandarich Law Group defended consistent with its ethical obligations to argue in good faith that the consumer’s intent to pay extended the statute of limitations. The trial court disagreed and dismissed the matter with prejudice.

Abdollahzadeh, represented by Mario Kasalo, then sued Mandarich in federal court blaming it not only for filing suit but also for defending his motion to dismiss. Mandarich held strong and pointed to its policies and procedures for scrubbing out and closing time barred accounts. Ultimately, it prevailed at the district court level at summary judgment by invoking the bona fide error defense. The consumer appealed.

The Seventh Circuit was “not persuaded” by the consumer’s arguments for reversal. The consumer argued that in order to succeed on the defense, the law firm should have abandoned its client’s claims in response to the consumer’s motion to dismiss. The consumer also insisted that Mandarich should have engaged in independent efforts to valid the debt prior to suit and refrained to relying on its client’s data. Ultimately, the Circuit rejected all of the consumer’s arguments and affirmed the judgment of the district court.

This case is important for two reasons. First, this case affirms that a law firm cannot be faulted for a good-faith argument in a state court collection suit merely because it was ultimately unsuccessful. Second, the simplistic nature of procedures does not lead to the conclusion that the procedures utilized were insufficient. This case will likely provide a road map which can be used by other law firms developing policies and procedures for time-barred debts.

Messer Strickler thanks its client, Mandarich Law Group, LLP, for its resolve and positive contribution to Seventh Circuit precedent.. A copy of the decision can be found here: https://law.justia.com/cases/federal/appellate-courts/ca7/18-1904/18-1904-2019-04-29.html

Messer Strickler, Ltd. Opens Suburban Pennsylvania Office

Messer Strickler, Ltd. is pleased to announce the opening of its Wynnewood, Pennsylvania office. This new office will allow us to better serve the legal interests of clients throughout Pennsylvania and New Jersey.  Shareholder Lauren M. Burnette will manage the office, while David M. Schwadron will oversee its day-to-day operations.  David is a seasoned trial attorney who has tried matters to verdict in Pennsylvania and New Jersey’s state and federal courts.  He brings with him over 20 years of experience in complex litigation, including commercial and professional liability defense, adding valuable depth to the Firm’s trial practice.      

With the opening of its new office, Messer Strickler, Ltd. expands its practice coverage area to include courts which yield some of the most significant decisions in the consumer financial litigation sector.  We are thrilled to add David to our team! Please contact David at (610) 800-2435, or Lauren at (904) 527-1172 with any inquiries.

Jury Renders "Prompt" Verdict Against FDCPA Plaintiff

The team at Messer Strickler, Ltd. has more good news for the credit and collection industry this month. On March 18th, 2019, its team received a complete defense verdict in favor of its client, Van Ru Credit Corporation (“Van Ru”), in a case filed by Wisconsin realtor, Deborah Al. Al filed a class action complaint against Van Ru after receipt of a collection letter offering her a settlement on an account she admittedly owed to creditor, Monroe and Main. The purported offending language read as follows:

“The balance you owe as of the date of this letter is $462.31. Presently, we are willing to accept $277.39 to settle your account provided that you act promptly. We are not obligated to renew this offer.”

Despite the polite tone of the letter, Al alleged that this language violated §1692e, e(5) and e(10) of the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (the FDCPA). Specifically, she contended that the letter’s use of the word “promptly” was so broad, and open-ended as to confuse her as to the time frame of the offer. Further, she alleged that the use of the term “we are not obligated to renew this offer” gave the false impression that Van Ru could and would rescind the settlement offer at any time without notice, which was contrary to its authority.

The Court in the Eastern District of Wisconsin certified a class of similarly situated individuals, who had received the purportedly offending communication. Van Ru, however, held firm in its defense. At trial, Van Ru staunchly defended its letter, arguing that Plaintiff’s interpretation was unreasonable and contrived. Further, it produced evidence showing that the statements in the letter were absolute truth. Indeed, Van Ru was willing to accept the discounted balance provided that the consumer act promptly, which meant that the account had not been recalled or its settlement offer had not changed. And, importantly, Van Ru was not obligated to renew its offer under the terms of its agreement with its creditor clients. Van Ru also produced evidence that no one, besides Ms. Al, had ever made complaint or expressed confusion about the language used in the letter.

The jury quickly saw through Ms. Al’s obfuscation and decided in a short 24 minutes that Van Ru had committed no violation of the law. Messer Strickler, Ltd. commends Van Ru for staying the course and showing FDCPA lawsuits are not always “quick-cash” for opportunistic consumer counsel and their clients.

Van Ru was represented by Nicole Strickler and Stephanie Strickler of Messer Strickler, Ltd.

Ms. Al was represented by Robert K. O’Reilly and Jesse Fruchter of Ademi & O’Reilly based in Cudahay, Wisconsin.   

 

Seventh Circuit Reverses Judgment of District Court and Defines "Character" of a Debt

Messer Strickler is pleased to report that on February 7, 2019 the Seventh Circuit Court of Appeals reversed a judgment entered against its client, Medical Business Bureau (“MBB”). In its opinion, the Circuit found that the District Court erred in determining that that MBB had misrepresented the “character” of a debt in violation of section 1692e(2)(A) of Fair Debt Collection Practices Act (FDCPA) when MBB reported to a credit bureau that plaintiff had nine unpaid bills of $60 each to same creditor, rather than single unpaid bill of $540. The Circuit determined that (1) “character” of debt refers only to kind of obligation; and (2) number of transactions between debtor and single merchant does not affect genesis, nature or priority of said debt. Additionally, the Circuit found that MBB accurately informed the credit bureau that Rhone incurred her debt over nine transactions, and, if plaintiff’s argument was correct, report of single $540 debt to credit bureau, would be misleading and also violate FDCPA, since plaintiff did not owe $540 for any transaction.

Messer Strickler attorneys Katherine Olson and Nicole Strickler represented MBB in the appeal with the assistance of their friends at Bedard Law Group.

Messer Strickler Defeats Serial FDCPA Filer in Jury Trial

The team at Messer Strickler, Ltd. is pleased to report a complete defense verdict in favor of its client, Federated Law Group, PPLC (“Federated”), in a case filed by serial FDCPA filer, Michael Savino, Jr. Mr. Savino, represented by prolific consumer attorney Donald Yarborough, filed an action against Federated, a creditors rights law firm, after receipt of a single collection letter. That letter presented Mr. Savino with various options to potentially settle a debt owed to its client.

Specifically, Plaintiff claimed that the statement in the letter stating that Federated “may resolve [Mr. Savino’s account] for $525.98 [was] false, deceptive or misleading” in violation of both §1692e and e(10) of the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (the FDCPA) because Federated could indeed settle the debt for $525.98. According to Plaintiff, Federated’s letter was merely a ruse made in attempt to collect the debt or obtain information about Mr. Savino. Instead of using the word “may”, according to Savino, Federated should have disclosed that it “could” settle the account for $525.98.

In contrast, Federated argued that its letter merely stated the truth concerning a potential option to resolve the account. While Federated could, under certain circumstances, settle the account for $525.98, it was not forced to do so. Of course, while a collector may have settlement authority, nothing in the law requires it to offer or disclose the lowest amount it may take to resolve an account. The FDCPA is  designed to prevent overreaching and egregious debt collection practices, not to deny creditors the right to recover as much as it can on a valid balance.

Notably, Messer Strickler was able to enter into evidence Mr. Savino’s expansive history of suing collection agencies and law firms with the help of Mr. Yarborough. At the time of trial, Mr. Savino had been the plaintiff in no less than three (3) cases filed against debt collectors in the Southern District of Florida. Mr. Savino also admitted on the stand that he had been subject to extensive collection efforts by debt collectors, including a prior collection lawsuit.

Unsurprisingly, a jury of 6 was not fooled by Mr. Savino’s theory. On February 19, 2019, the jury rendered a complete defense verdict in favor of Federated. Messer Strickler congratulates Federated on staying the course and vindicating itself at trial!

Nicole Strickler & Lauren Burnette Honored by Collection Advisor Magazine

Collection Advisor Magazine honored two Messer Strickler, Ltd. shareholders in its September/October issue. Nicole M. Strickler was honored as one of the "20 Most Powerful Women in the Collection Industry", mean to honor those who have found success in their organizations and used that influence to create positive waves of change in the industry. You can Nicole's full interview, along with that of other honorees, at HERE.

In the same issue, shareholder Lauren M. Burnette was honored as one of the "Top Attorneys in Collections". These attorneys were nominated by their peers for efforts to improve collections through legal collections, creditor defense and legal consultation. You can read Lauren's full interview HERE.

Messer Strickler, Ltd. sends its congratulations to Lauren and Nicole!

Messer Strickler, Ltd Welcomes Lauren Burnette as Shareholder

Lauren Burnette Take 2.jpg

Messer Strickler, Ltd. is pleased to announce that Lauren Burnette has joined our firm as a shareholder and will be heading our new office located in Jacksonville, Florida. Lauren concentrates her practice in the defense of litigation brought under the consumer protection laws, as well as compliance counseling.  Lauren is licensed to practice in federal and state courts in Florida, Maryland, and Pennsylvania, and will expand Messer Strickler, Ltd.’s practice coverage area throughout the East Coast.

With Lauren joining our team, Messer Strickler, Ltd. is well positioned to serve the legal interests of nationwide firms regulated under the consumer protection laws.  The attorneys at Messer Strickler are pleased that Lauren has joined our growing practice. Please contact Lauren at 904-201-9120.

Law Firm Sued For Allegedly Tricking Debtors in Carrasquillo v. Messerli & Kramer

Messerli & Kramer, a Minneapolis-based law firm, has been hit with a proposed class action in federal court by Marta Carrasquillo, a Wisconsin woman who alleges the firm, while acting as a debt collector, sent a deliberately misleading notice that gave the impression she had lost her case, including an allegedly forged signature from a judge or other court official. Carrasquillo alleged that Messerli & Kramer violated the FDCPA and Wisconsin Consumer Act by sending a financial disclosure form that closely resembles a standard form sent after a judgment has been entered against the debtor. Carrasquillo alleged that the form is in violation of both the FDCPA and the Wisconsin Consumer Act because it is both misleading and falsely represents that a judgment had been entered against Carrasquillo. The debt at issue dated back to May of 2018. At that time, Carrasquillo initially appeared in response to a claim in small claims court filed by Messerli over a Bank of America Credit Card debt she allegedly owed. About a month later, Carrasquillo claimed she received the form at issue. Carrasquillo alleged the firm intended to make consumers think they had lost their cases and now had to supply sensitive information, including Social Security numbers.

Messerli has been the subject of a lawsuit of several lawsuits in recent years; specifically, Messerli has been named in Minnesota federal court in over a dozen lawsuits related to debt collection and has also been accused of lying to a state court judge in a debt collection case, though the Eighth Circuit decided in 2012 that the statements were not lies. The complaint estimates that over 50 people in Wisconsin have been sent a financial disclosure form similar to the one Carrasquillo allegedly received.

At this point, these are merely allegations that have yet to be proved. The firm may still be successful in defense of these claims.

If you have questions regarding this case or FDCPA compliance in general, contact Joseph Messer for a free consultation.  Mr. Messer can be reached at (312) 334-3440 or jmesser@messerstrickler.com.

Can Debt Collectors Communicate with Consumers Via Text Message?

According to recent research, 264 million smartphone users collectively look at their phones some 12 billion times a day.[1] Further, millennials (those born between 1980 and 1996[2]) prefer texting over email, phone and social media to communicate with businesses.[3] Despite America’s love of texting, many businesses, including those in the credit and collection industry, do not utilize any text platform to communicate with consumers. One reason for the hesitance is confusion concerning the legality of utilizing text messaging as a method of communication. This article will explore the utilization of text messaging in the context of debt collection.

Fair Debt Collection Practices Act (“FDCPA”)[4]:   The Fair Debt Collection Practices Act does not prohibit collectors from using text as a method of communication. Texts are still subject to the same general prohibitions as all communications subject to the Act. For example, deceptive “door opener” text messages, which use a false pretense to get a consumer to return the collector’s call, are impermissible. In the past, at the FTC’s request, federal courts in New York and Georgia halted three debt collection operations that allegedly used text messages to falsely threaten to arrest or sue consumers, unlawfully contact third parties, and failed to identify themselves as debt collectors as required by the law. According to the FTC, the companies sent texts to trick consumers into calling them back using statements such as, “YOUR PAYMENT DECLINED WITH CARD ***-****-***-5463. . . CALL 866-256-2117 IMMEDIATELY, even though the consumers had never attempted to make any payment.[5] Notably, these messages would be impermissible under the Act whether sent by text message, by telephone, or in writing as unlawful misleading communications.

Deception aside, providing the disclosures required by the Act can be a struggle in text message. §1692e(11) of the Act requires disclosure in the initial communication with a consumer that the debt collector is attempting to collect a debt and that any information obtained will be used for that purposes. Further, all subsequent communications must include the disclaimer is from a debt collector. But, that is not all. Under Section 1692g(a) of the Act, within five days after the initial communication (unless the information is contained in that initial communication or the consumer has paid the debt), the debt collector must send the consumer a written notice containing--- the amount of the debt, the name of the creditor to whom the debt is owed, and a further disclosure stating:

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. 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. 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.

The first question is whether a text can satisfy the “written notice” requirement of §1692g. As of the date of this article, there has been no case to consider whether a collector may satisfy its §1692g “written notice” obligations by text message. From a logical perspective, a text message is certainly a notice made in writing. As a practical matter, however, it would be impossible to fit all of the required §1692e(11) and §1692g(a) information in a single text message to a consumer. This begs the question of whether several text messages, sent in unison or consecutively, constitute a single communication or multiple communications under the Act. While the case law does not answer this question, certainly under basic logic a compelling argument can be made to suggest that a group of messages sent in unison constitutes a single, as opposed to multiple, communication.

The timing of text transmission is important for another reason. Under §1692c(a)(1), debt collectors are prohibited from contacting consumers at any unusual time or place or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that a convenient time for communicating with a consumer is after 8:00am and before 9:00pm, local time at the consumer’s location. But, what does this mean for a text message, which may be sent at a particular time but read much later than the time of transmission. According to the CFPB, which is currently developing debt collection rules, “[b]ecause an email or text message is generally available for consumer’s receipt when the debt collector sends it, the time of sending will be the determining factor--- not, for example, when the consumer sees or opens it. Using the time the message is sent will also provide greater certainty to collectors in determining if they are communicating at a presumptively inconvenient time.”[6] Given this proposed rule, it is fairly safe to assume that text messages will be treated similarly to voicemails in that the time the communication is sent, not received, will be the relevant inquiry for purposes of §1692c(a)(1).

Uniform Deceptive Acts & Practices (“UDAP”):

State laws, many times known as UDAP laws, also regulate debt collection activity. Accordingly, while misleading texts are a problem under the FDCPA, they also may be a problem under relevant state law. For example, N.M. Stat. Ann. § 57-12-2(D) generally prohibits the false or misleading oral or written statements made in connection with the collection of debts. In Duke v. Garcia[7], a court found that an automobile finance company violated N.M. Stat. Ann. § 57-12-2(D) by sending a consumer false text messages designed to collect a deficient auto loan. In Duke, the finance company’s employee transmitted multiple text messages to the consumer stating a “warrant had been filed for her arrest and something akin to ‘I hope you enjoy jail.’” However, no warrant was ever filed for the consumer’s arrest.[8] In granting summary judgment against the finance company, the court found that the texts were actionable even though the consumer was not actually deceived by the messages as they tended to “deceive or mislead a reasonable person.”[9]

The Telephone Consumer Protection Act (“TCPA”): The TCPA restricts the use of automatic telephone dialing systems (“ATDS”), artificial or prerecorded voices, and unsolicited faxes.[10] The FCC is charged with implementing regulations and providing guidance on the TCPA’s provisions. As to wireless or cellular telephone numbers, the TCPA places a broad ban on the use of an ATDS to place calls without the prior express consent of the called party. Importantly, for purposes of this article, is the uniform understanding that a text message is a “call” within the meaning of the TCPA.[11] In short, debt collectors may not send text messages to consumers using an ATDS without prior express consent[12].

The definition of ATDS under the TCPA has been the subject of much debate. The TCPA defines an ATDS as equipment which has the capacity to: (1) store or produce telephone numbers to be called, using  a random or sequential number generator; and (2) to dial such numbers. In 2015, the FCC issued a Declaratory Ruling and Order which clarified the definition of an ATDS includes systems with the present or future ability to store and produce, and dial, random and sequentially generated numbers.[13] According to the FCC’s ruling, whether or not a dialing system’s capacity to function as an ATDS is actually utilized to make the call is irrelevant.

Notably, this definition was recently successfully challenged in the United States Court of Appeals for the District of Columbia Circuit. On March 16, 2018, the Circuit vacated the Commission’s definition of ATDS finding that the Commission’s “most recent effort [to define ATDS] f[ell] short of reasoned decisionmaking in offer[ing] no meaningful guidance to affected parties in material respects on whether their equipment is subject to the statute’s autodialer restrictions.”[14] At a minimum, the Circuit’s rejection of the FCC’s definition leaves open a new opportunity to argue a more limited definition of ATDS given the plain language of the statute. Nonetheless, debt collectors still need to be aware of the capabilities of texting platforms as some undoubtedly do meet the definition of an ATDS.[15]

If the software meets the definition of an ATDS, it does not necessarily follow that text messages are prohibited. Consent, which may be obtained orally or in writing, transforms an unlawful call into a lawful one. However, a collector must take care to ensure that it documents and retains records on consent as the burden to prove consent is on the collector.[16] Moreover, consent may be revoked by the consumer at any time through different channels.[17] Accordingly, the debt collector must implement a system for recording both consent and revocation thereof.

State Specific ATDS Laws:

Some states, like New York, have no specific regulations concerning the use of auto dialers. Others specifically limit their regulations to telemarketing efforts.[18] Additional state laws specifically allow dialing systems to be employed for debt collection efforts but may add certain disclosure, registration or consent requirements.[19] Most confusing are those state laws which fail to provide clarity on their application to debt collection activity.[20] At a minimum, collectors should contact their legal counsel to assess and determine whether the states in which they operate regulate, or prohibit, the use of their chosen text platform.

 

 

 

[1] http://deloitte.wsj.com/cmo/2018/01/22/a-new-era-for-mobile/

[2] https://en.wikipedia.org/wiki/Millennials

[3] http://www.chiefmarketer.com/millennials-prefer-texting-to-communicate-with-businesses-survey/

[4] 15 U.S.C. §1692 et seq.

[5] https://www.ftc.gov/news-events/press-releases/2015/05/ftc-halts-three-debt-collection-operations-allegedly-threatened

[6] https://files.consumerfinance.gov/f/documents/20160727_cfpb_Outline_of_proposals.pdf (P. 29)

[7] 2014 U.S. Dist. LEXIS 48047, *16 (D. N.M. 2014).

[8] Id. at *3.

[9] Id. at *16.

[10] See, 47 U.S.C. §227(b).

[11] Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 269, n.2 (3d Cir. 2013) (alteration in original) (quoting Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 953 (9th Cir. 2009)). See also In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14115 (July 3, 2003).

[12] There is a limited exception for debts owed to or backed by the United States. See 47 U.S.C.A. § 227(b)(1)(B) (2012) as amended by Bipartisan Budget Act of 2015, Pub. L. § 301, 129 Stat 584, 588 (2015).

[13] https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-72A1_Rcd.pdf

[14] ACA Int'l v. FCC, 885 F.3d 687, 701 (D.C. Cir. 2018) (internal citations omitted).

[15] Franklin v. Express Text, LLC, No. 17-2807, 2018 U.S. App. LEXIS 6102, at *2 (7th Cir. Mar. 12, 2018).

[16] Ruffrano v. HSBC Fin. Corp., No. 15CV958A, 2017 U.S. Dist. LEXIS 132674, at *45 (W.D.N.Y. Aug. 17, 2017).

[17] Legg v. Voice Media Group, Inc., 990 F. Supp. 2d 1351, 1354-55 (S.D. Fla. 2014) (finding that consumer's text message to "STOP ALL" was sufficient to plead revocation of consent); Munro v. King Broad. Co., No. C13-1308JLR, 2013 U.S. Dist. LEXIS 168308, 2013 WL 6185233, at *1, 3-4 (W.D. Wash. Nov. 26, 2013) (evidence of having texted "STOP" was sufficient to overcome the defendant's motion for summary judgment regarding revocation of consent)

[18] See, e.g., Thrasher-Lyon v. Ill. Farmers Ins. Co., 861 F. Supp. 2d 898, 2012 U.S. Dist. LEXIS 50560 (N.D. Ill. 2012) (Debt collector was entitled to dismissal of the claim against it under the Illinois Automatic Telephone Dialers Act, 815 ILCS 350/1 et seq., because nowhere in the complaint did the claimant allege that the messages she received were communications soliciting the sale of goods or services.); Md. Code Ann., Pub. Util. Co. § 8-204(c) (limiting restrictions to “sales or surveys”); Mich. Comp. Laws Ann. §§ 445.111- 445.111(a) (banning under any circumstances the use of recorded messages for a “home solicitation sale.”

[19] See, e.g., Iowa Code Ann. § 476.57(2)(b)(3) (allows auto dialer use for debt collection); Ky. Rev. Stat. Ann. § 367.461 (same); N.J. Stat. Ann. § 48:17-30 (same); N.C. Gen. Stat. § 75-104(a), (b)(3) (allows auto dialer use for debt collection but specifies that (a) no part of the call shall be used for telephone solicitation and (b) the person making the call must clearly identify the person’s name and contact information and the nature of the unsolicited telephone call); 16 Tex. Admin. Code § 26.125 (requires permit registration).

[20] Me. Rev. Stat. Ann. tit. 10 § 1498(1) (defining prohibited “solicitation calls” as those, the purpose of which is to “gather data or statistics or solicit information).

7TH CIRCUIT RULES THAT SAFE HARBOR LANGUAGE DOESN'T PROTECT COLLECTOR

In the class action lawsuit Boucher v. Finance System of Green Bay, Inc., No. 17-2308 (January 17, 2018), the 7th Circuit Court of Appeals ruled when state law prohibits a collector from lawfully or contractually impose “late charges and other charges” the collector's letter indicating that those charges will be imposed violates the Fair Debt Collection Practices Act even when the letter uses the "safe harbor" language established in the 7th Circuit's decision Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, LLC, 214 F.3d 872 (7th Cir. 2000).  The collection letter in this case contained the following language taken from Miller v. McCalla:

As of the date of this letter, you owe $[a stated amount]. Because of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary after we receive your check. For further information, write to the above address or call [phone number].

The plaintiffs claimed that this language was false because under Wisconsin law because the collector could not  cannot lawfully or contractually impose “late charges and other charges.” Plaintiffs further alleged that the letter would cause unsophisticated consumers to incorrectly believe that they would avoid such charges, and thus benefit financially, if they were to immediately send payment. For these reasons, plaintiffs claimed that the letter was false, misleading, and deceptive in violation of § 1692e. Plaintiffs also claimed that the letter failed to properly state the amount of debt, as required by § 1692g(a)(1). 

The 7th Circuit agreed with the plaintiffs and held that by threatening to impose "late charges and other charges" the letter was impermissibly deceptive because such charges could not lawfully be imposed under Wisconsin law. Although the letter used the safe harbor language set forth in Miller v. McCalla, the 7th Circuit found that the collector could not immunize itself by using that language when it was not accurate under circumstances of the case.

FDCPA class action lawsuits based on collection letters are common since collection agencies can send tens of thousands of identical letters to consumers.  A class action lawsuit can put an agency out of business.  It is imperative that collection agencies have their collection letters reviewed for FDCPA compliance by qualified legal counsel.  If you would like to have your agency's letters reviewed, or if you have questions regarding this case or FDCPA compliance in general, contact Joseph Messer for a free consultation.  Mr. Messer can be reached at (312) 334-3440 or jmesser@messerstrickler.com.

New Illinois Law Strengthens Existing State Law on Workplace Sexual Harassment

On November 16, 2017, Governor Bruce Rauner signed new legislation into law to strengthen existing state law on workplace sexual harassment. The amendment required that all local units of government update their harassment policies by January 15, 2018. At minimum the updated policies must:

·         Prohibit sexual harassment

·         Provide details on how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, Inspector General, or the Illinois Department of Human Rights.

·         Prohibit retaliation for reporting sexual harassment allegations and allow claims of retaliation to be filed under the Stat Officials and Employees Ethics Act, the Whistleblower Act and the Illinois Human Rights Act.

·         Detail the consequences of violating the prohibition against sexual harassment and knowingly making a false report.

The Illinois Human Rights Acts was also amended to require the Illinois Department of Human Rights to create a sexual harassment hotline by February 16, 2018. The hotline will provide individuals with a way to anonymously report sexual harassment. The hotline will also connect callers to counselors or other resources, assist in the filing of sexual harassment complaints and it may recommend that an individual seek the advice of an attorney.

If you have questions about this new Law and how it may affect you call Joe Messer at 312-334-3440 or write Joe at jmesser@messerstrickler.com.   Joe will be glad to discuss the matter with you at no charge.