Messer

Second Circuit Adopts FDCPA Least Sophisticated Consumer Safe Harbor Approach Established by the Seventh Circuit

In Avila, et al. v. Riexinger & Associates, LLC, et al., Case No. 15-1584(L), the Second Circuit Court of Appeals applied the least sophisticated consumer standard of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) to conclude that a consumer cannot be expected to know that a total debt provided in a given statement continues to increase interest or other fees.  The Second Circuit held that when a debt collector issues a notice to a borrower that includes a statement of the complete amount of their debt, the debt collector must either accurately inform the consumer that the amount of the debt stated in the notice will increase over time based upon interest or other fees, or clearly state that the holder of the debt will accept payment of the amount set forth in full satisfaction of the debt if payment is made by a specified date. In Avila, a consumer brought a putative class action against a debt collector for violation of § 1692e of the FDCPA alleging that the practice of disclosing in a collection notice only the “current balance” of the amount owed amounts to “false, deceptive, or misleading” collection practices under the statute.  The consumer alleged that the notice led them to believe that the amount owed was not increasing.  The Second Circuit agreed and held that the least sophisticated consumer could believe that payment in full of the current balance provided in the notice would satisfy the entire debt owed, and that a failure to mention the ongoing accrual of interest and fees was misleading. Further, the Court held that “the FDCPA requires debt collectors, when they notify consumers of their account balance, to disclose that the balance may increase due to interest and fees.”

The Second Circuit also held that Section 1692e requires additional disclosures to ensure that consumers are not misled into thinking that simply paying the “current balance” as listed on the collection notice will always result in full satisfaction of the amount owed. Accordingly, the Second Circuit adopted the “safe harbor” approach established by the Seventh Circuit in Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872 (7th Cir. 2000).  The “safe harbor” doctrine allows a debt collector to prevent liability under Section 1692e “if the collection notice either accurately informs the consumer that the amount of the debt stated in the letter will increase over time, or clearly states that the holder of the debt will accept payment of the amount set forth in full satisfaction of the debt if payment is made by a specified date.”

Although the Second Circuit declined to establish the exact language of any disclosure that a debt collector must use to sidestep a possible FDCPA violation, the Court expressed that the language proposed in Miller, 214 F.3d, at 876, would certainly qualify a debt collector for treatment under the newly-created safe-harbor.

Debt collection agencies, or those that act as debt collectors, should pay particular attention to the language of Miller that the Second Circuit suggests will satisfy the newly-recognized safe harbor provision. For information on revising statements to consumers to comply with the safe harbor language, or for other information regarding this topic, contact Stephanie Strickler at 312-334-3465 or at sstrickler@messerstrickler.com.

FTC to Help Consumers Report and Recover from Identity Theft

On January 28th, the Federal Trade Commission (“FTC”) updated identitytheft.com with personalized information and tools for consumers to report and recover from identity theft. This change comes after consumers submitted 47% more identity fraud complaints to the FTC in 2015 than in 2014.  As a result, the FTC has made a form letter available for victims to better communicate with debt collectors about debts incurred due to theft. Additionally, the FTC has recommended victims contact credit bureaus to block information on their credit reports in regards to any fraudulent debts. For more information about the FTC’s new identity theft tools, please contact Joseph Messer at 312-334-3440 or at jmesser@messerstrickler.com.

When a Creditor is a “Debt Collector” Under the FDCPA

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The Federal Trade Commission (“FTC”) recently released a statement that the meaning of “debt collector” may be more expansive under the Fair Debt Collection Practices Act (“FDCPA”) than previously thought. A “debt collector” is defined under the FDCPA as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” §803(6). With this definition, it has long been assumed that creditors who collect their own debts are not covered by the FDCPA. However, Section 803(6) goes on to say “the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.”

The FTC has asserted FDCPA claims against companies using other names to collect their own debts, characterizing them as “debt collectors” under the FDCPA. The FTC has issued a warning toremind creditors that the FDCPA can in fact apply to creditors who collect on their own behalf. Creditors should regularly review their policies to ensure their practices and procedures follow all applicable laws and regulations.

View the FTC’s Original Post Here

To learn more about the FTC’s warning and how to avoid FDCPA violations please contact Joseph Messer at 312-334-3440 or jmesser@messerstrickler.com.

“Ban the Box” Introduced to Congress

On September 10, 2015, a bill was introduced by Senator Cory Booker (D-NJ) and Representative Elijah Cummings (D-MD) marking the first time “ban the box” has been proposed at the federal level.  If passed, The Fair Chance Act would prevent federal agencies and contractors from inquiring about prospective employees’ criminal records before extending a formal job offer.  Once a job offer is presented, the employer may ask about an applicant’s criminal background and revoke the job offer based on the result of a criminal background check.  Law enforcement, national security agencies, and positions with access to classified information will be exempt from this proposed law. For more information about the proposed Fair Chance Act, contact Joseph Messer at jmesser@messerstrickler.com or (312) 334-3440.

 

Read More on “Ban the Box”

                Illinois Enacts “Ban the Box” Law Impacting Private Employers

                Private Employers May be Impacted by the “Ban the Box” Approach in 2014

                The “Ban the Box” Movement Continues                

               “Ban the Box” and Local Ordinances – What Employers Should Know

CLASS ACTION STATUS GRANTED AGAINST UBER TECHNOLOGIES

Judge Edward Chen of the Northern District Court of California recently certified a class action suit against Uber Technologies, Inc. which claims the service treated its drivers like employees rather than independent contractors. The plaintiffs in this case believe that since Uber controls much of the drivers’ experiences (i.e. setting fares, deciding when and why they can be terminated, etc.), drivers should be classified as employees and therefore be eligible for expense reimbursements for car repairs, tips, and insurance. The class action will not apply to drivers that waived their right to litigate, certain drivers who work for independent transportation companies and drivers outside the state of California.  If a ruling limiting the class to those employed in the state of California is successfully appealed, however, the class action could be applicable to drivers around the country.

For more information regarding the class action against Uber or employment law generally, contact Joseph Messer at jmesser@messerstrickler.com or (312) 334-3440.

Illinois Amends and Renews ICAA

On August 3, 2015, the Illinois governor approved and signed House Bill 3332  amending the Regulatory Sunset Act and Illinois Collection Agency Act (ICAA).  The Bill is effective immediately, and amends the Regulatory Sunset Act, to extend the repeal of the ICAA from January 1, 2016 to January 1, 2026 and makes several amendments to the ICAA.  Perhaps the most important amendment to the ICAA is the revised definition of “debtor” to include persons from whom a consumer or commercial debt is sought.  The amended ICAA also now requires collection agencies to state the name and address of the original creditor, if different than the current creditor in the validation notice, and refers only to collection agencies rather than debt collectors to clarify commercial collection agencies must be licensed in Illinois.  Additionally, the amended ICAA adds electronic mail and any other Internet communication to the types of interstate communications that are exempt from the licensing requirements, provided such communications are made by a foreign collection agency whose state not only requires a license but extends reciprocity to agencies licensed and located in Illinois. The civil penalty for acting as a collection agency without a license was also increased from a maximum of $5,000 to a maximum of $10,000.  The ICAA, as amended, also includes new provisions regarding the Department of Financial and Professional Regulation’s ability to issue cease and desists and to suspend the license of a licensed collection agency without a hearing if the continuance of the agency’s practice “would constitute an imminent danger to the public.”

For more information regarding the Illinois Collection Agency Act and/or collection agencies’ obligations under the Act, contact Joseph Messer at jmesser@messerstrickler.com or (312) 334-3440.

Class Action Lawsuit Against Paramount Pictures Dismissed with Prejudice

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Soon after filing a class action lawsuit against Paramount Pictures Corporation, Michael Peikoff’s lawsuit was dismissed with prejudice. In the complaint filed in the United States District Court for the Northern District of California, Peikoff alleged that Paramount Pictures violated the Fair Credit Reporting Act (“FCRA”) when it ran credit report checks on potential employees. Peikoff claimed that, though Paramount had disclosed its intentions and received authorization from job applicants, the authorization form was included in the general job application in violation of the law.

Judge Vince Chhabria disagreed with Peikoff. The Court determined that Paramount did not act recklessly by including the authorization form within the job application nor did it violate the FCRA by using such language. Judge Chhabria found that although Paramount was not entirely upfront with its intentions to run credit checks, it did not violate federal law.

For more information about this case or the FCRA generally, contact Joseph Messer at

jmesser@messerstrickler.com

or (312) 334-3440.

Federal Court Determines Voicemail Message and Return Phone Call with an Unintended Recipient Not in Violation of FDCPA

A federal court in New York recently decided that a voicemail message stating that the call was from a debt collector where the voicemail message’s intended recipient was disclosed to a third party who returned the call was not a violation of the Fair Debt Collection Practices Act (“FDCPA”).  In Abraham Zweigenhaft v. Receivables Performance Management, LLC, RPM left the following voicemail message:  “We have an important message from RPM.  This is a call from a debt collector.  Please call 1(866) 212-7408.”  Mr. Zweigenhaft’s son heard the message and returned the call.  He then had the following conversation with the RPM representative: RPM: Thank you for calling Receivables Performance Management on a recorded line. This is Michelle how can I help you?

Caller: Hi how are you? I received a message to call you, and I am just trying to figure out who you are trying to reach.

RPM: Okay and your phone number please, area code first.

Caller: (718) 258-9010

RPM: And is this Abra?

Caller: Is this who?

RPM: Abra Zweigenhaft?

Caller: Nope. It's not.

RPM: Okay let me go ahead and take your phone number off the list. The last four digits again please. 9010 or 7032?

Caller: 9010

RPM: Okay I'll take it off the list. You have a nice day.

Caller: Thank you.

RPM: Uh huh, bye bye.

Zweigenhaft filed suit against RPM alleging that the content of the voicemail message and the phone call together conveyed information regarding the consumer’s debt to a third party, Zweigenhaft’s son, in violation of FDCPA § 1692c(b).  The United States Court for the Eastern District of New York disagreed that this was a violation.  The court recognized the statute’s conflicting provisions.  Debt collectors are required by the FDCPA to meaningfully identify themselves when calling a consumer, but doing so may inevitably convey information about a consumer’s debt, which if overheard by a third party gives rise to consumer arguments that the debt collector violated the FDCPA.  In finding that the communications did not violate the FDCPA, the court stated that if it were to find that the contact was a violation of the FDCPA “would place an undue restriction on an ethical debt collector in light of our society’s common use of communication technology.”

For more information on this topic, contact Joseph Messer at 312-334-3440 or at jmesser@messerstrickler.com or Stephanie Strickler at 312-334-3465 or at sstrickler@messerstrickler.com.

 

Hang Up That Telephone: The Importance of Training Collectors to Properly Receive Attorney Information

Recently, United States Magistrate Judge David D. Noce created an important teaching moment for collectors in Istre v. Miramed Revenue Group, LLC et al, a case pending in the U.S. District Court for the Eastern District of Missouri. In Istre, after collection attempts, the plaintiff allegedly placed a call to the collection agency to inform it that he had retained counsel regarding his debts. At the beginning of the call, plaintiff told the agency that he had retained counsel. Instead of ending the call, however, the agency allegedly asked, “Why are you having a lawyer involved in this?” and, “So how are you going to go about this?” Only after plaintiff again stated that he had retained counsel regarding his debt did the agency request the attorneys’ contact information, which plaintiff immediately provided.

Upon these alleged facts, plaintiff alleged various violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692c(a)(2), d, e and f. Defendants filed a motion to dismiss, arguing that by initiating the call, plaintiff consented to the ensuing discussion about his debt. The court, however, agreed with plaintiff that the mere fact that plaintiff initiated the phone call was not conclusive that he thereby consent to the debt collector to the collection attempt. The court further held that without that consent, once notified of legal representation, defendants may only ask for the attorney’s contact information before ending the call. As a result, the court found that plaintiff properly stated a cause of action under 1692c(a)(2), d, and f. However, it granted the motion with respect to 1692e, finding that no misleading statement had been alleged in the complaint.

The decision shows the importance of dissuading collectors from continuing a telephone call after receipt of attorney information. For a full copy of the opinion, see http://scholar.google.com/scholar _case?case=14559722534209738563&q=istre+v.+miramed+revenue+group&hl=en&as_sdt=400006&as_vis=1.

For more information on this subject, and other consumer litigation compliance information, contact Nicole Stricler, 312-334-3442, nstrickler@messerstrickler.com.

Federal Judge Rules One Voicemail Message Is Not Enough to Sustain FDCPA Violation

In Hagler v. Credit World Services, Inc., a federal judge in Kansas decided that a debt collection agency was not in violation of the FDCPA by failing to identify itself as a debt collector in one voicemail message.  The judge explained that multiple calls must be made in order for “harassment” to occur.

Plaintiff was initially contacted by a Credit World Services employee to discuss the outstanding debt.  Plaintiff informed the employee that he would need to call him back.  After waiting about a month with no contact with Plaintiff, Defendant called Plaintiff and left the following voicemail:

“Hi, this message is for Charles.  Please call Bill Jackson at 913-362-3950 when you get a chance. 

 My extension is like 281.  Thank you.”

Plaintiff sued, arguing that Defendant’s voicemail violated several provisions of the FDCPA.  Specifically, Plaintiff alleges Defendant:

•Failed to disclose meaningfully the caller’s identity, in violation of 15 U.S.C. § 1692d(6);

•Failed to disclose that a debt collector had left the voicemail, in violation of 15 U.S.C. § 1692e(11); and

•Used misleading and deceptive language, in violation of 15 U.S.C. § 1692e.

Plaintiff also claimed that the voicemail message was otherwise deceptive and failed to comply with the provisions of the FDCPA.  Plaintiff and Defendant filed cross-motions for summary judgment on all four claims.

The judge agreed with the collection agency on all four counts.  The judge decided that the voicemail message did not provide a “meaningful” disclosure of the employee’s identity as a debt collector under § 1692d(6) as the employee only provided his name, which has no real meaning to the debtor.  The judge explained further that the employee must provide more about himself than his name to be a “meaningful” disclosure.  However, the judge ruled that a violation requires more than just one call.

Because the clear language of § 1692d(6) prohibits the placement of telephone “calls” without meaningful disclosure, the judge did not agree that this single voicemail message violated the FDCPA.  He supported this finding by citing other district courts who also focused on the plural usage of “calls” in the statute.  See Thorne v. Accounts Receivables Mgmt, Inc., 2012 U.S. Dist. LEXIS 109165 (S.D. Fla. July 23, 2012); Jordan v. ER Solutions, Inc., 900 F. Supp. 2d 1323 (S.D. Fla. 2012); Sanford v. Portfolio Recovery Assocs., LLC, 2013 U.S. Dist. LEXIS 103214 (E.D. Mich. May 30, 2013).

The judge also determined that the debt collector was not in violation of the FDCPA for failing to provide the “mini-Miranda” disclosure.  The judge noted that “in order to ‘convey information regarding a debt,’ a message must ‘expressly reference debt’ or the recipient must be able to infer that the message involved a debt.”  Since the employee did not mention the debt in the voicemail message, the judge did not consider it a debt collection communication under the FDCPA.

Finally, the judge disagreed that the message was misleading.  The employee merely left his name, phone number, and requested Plaintiff call him back.  The judge decided that nothing in the message was intended to mislead the Plaintiff.

For more information on this topic, contact Stephanie Strickler at 312-334-3465 or sstrickler@messerstrickler.com.

Dear EEOC: Not All Attorneys Are The Same

On September 29, 2014 the Second Circuit Court of Appeals, in EEOC v Port Authority of New York and New Jersey, September 29, 2014, Livingston, D) held that the EEOC failed to allege sufficient facts to state a plausible claim that female and male attorneys at the Port Authority performed “equal work” despite receiving unequal pay as the EEOC could not allege any facts supporting a comparison between the attorneys’ actual job duties, thereby precluding a reasonable inference that the attorneys performed “equal work.”

Congress passed the EPA in 1963 “to legislate out of existence a long‐held, but outmoded societal view that a man should be paid more than a woman for the same work.”  Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999).  To prove a violation of the EPA, a plaintiff must demonstrate that “[(1)] the employer pays different wages to employees of the opposite sex; [(2)] the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and [(3)] the jobs are performed under similar working conditions.”  Belfi, 191 F.3d at 135.

To satisfy this standard, a plaintiff must establish that the jobs compared entail common duties or content, and do not simply overlap in titles or classifications.  

At the pleading stage, a plausible EPA claim must include “sufficient factual matter, accepted as true” to permit “the reasonable inference” that the relevant employees’ job content was “substantially equal.”    Such factual allegations are necessary to provide “fair notice [to the defendant] of the basis for [the plaintiff’s] claims.” Yet, despite a three‐year investigation conducted with the Port Authority’s cooperation, the EEOC’s complaint and incorporated interrogatory responses relied entirely on broad generalizations drawn from job titles and divisions, and supplemented only by the unsupported assertion that all Port Authority nonsupervisory attorneys had the same job, to support its “substantially equal” work claim.  As such, the EEOC’s complaint was dismissed.

The EEOC’s argument that “all lawyers perform the same or similar function(s)” and that “most legal jobs involve the same ‘skill’ was rejected by the Court which stated that “accepting such a sweeping generalization as adequate to state a claim under the EPA might permit lawsuits against any law firm – or, conceivably, any type of employer – that does not employ a lockstep pay model.  Without more, these facts cannot be read to raise the EEOC’s “substantially equal” work claim “above the speculative level.”

Unfortunately for the Port Authority, even though they received the result they were seeking in this case, they had been cooperating with and providing the required information to the EEOC since 2007, when this matter began, stemming from a discrimination charge.  The EEOC then conducted a three year investigation into the EPA and determined in 2010 that the Port Authority violated the law.  Luckily for the Port Authority, the District Court and the 2nd Circuit disagreed and held the EEOC did not meet its burden proving any violation of the EPA occurred.   

For more information on the EEOC or any other employment law related matters, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.

MOOTED TCPA CLAIM REVIVED IN SECOND ACTION AGAINST SAME DEFENDANTS

The Eastern District of New York recently held that a plaintiff’s TCPA claims were not precluded by the Southern District of Texas’ ruling that the same claims against the same defendants were mooted by a Rule 68 offer of judgment.  See Bank v. Spark Energy Holdings, No. 13-6130, 2014 U.S. Dist. LEXIS 84493 (E.D.N.Y. June 20, 2014). 

The plaintiff alleged that he received telemarketing calls from defendants “using an artificial or prerecorded voice” without his prior express consent in violation of the Telephone Consumer Protection Act (“TCPA”).  He initially filed a class action suit in the Southern District of Texas, where after nearly two years of defending the case and prior to plaintiff moving for class certification, defendants made a Rule 68 offer of judgment offering plaintiff complete relief.  Although the plaintiff rejected the offer, the Texas court found that the offer rendered plaintiff’s claims moot because he no longer had a personal stake in the outcome of the litigation.  Accordingly, the Texas court dismissed the plaintiff’s claims for lack of subject matter jurisdiction. 

Shortly thereafter, the plaintiff filed suit in the Eastern District of New York and asserted the same TCPA claims against the same defendants.  The defendants moved to dismiss the claims based on the preclusive effect of the Texas court’s ruling.  The New York court denied the motion to dismiss, reasoning that neither claim nor issue preclusion applied.  The New York court held that claim preclusion only applied if there was a final judgment on the merits in the prior action and that dismissal for lack of subject matter jurisdiction is generally not considered a final judgment on the merits.  The New York court further held that issue preclusion did not apply because an identical issue was not adjudicated in the prior action:

"I find that the identical issue is not presented here because the prior’ court’s determination of mootness relied on particular factual circumstances that are not the same as the facts presented in this suit.  In the Texas case, the court decided that plaintiff’s individual TCPA claim was moot because plaintiff had rejected a Rule 68 offer that would have provided complete relief on his claim.  In this suit, defendants have not made any Rule 68 offer, so the court is not presented with the same factual scenario.  Since the first requirement to establish issue preclusion is not satisfied, the Texas court’s prior finding of mootness does not require the dismissal of plaintiff’s claims as moot in this action."

While the New York judge did express sympathy for defendants’ position (having litigated plaintiff’s TCPA claim for almost two years in Texas, successfully moving to have the suit dismissed, and now facing the same TCPA claims in New York), she nevertheless found in favor of the plaintiff, stating: “[a] finding that a claim is moot in one case simply does not mean that claim is moot in all subsequent cases.”

While the opinion appears to undermine the goals that the mootness and preclusion doctrines were meant to serve, if this tactic gains traction, defendants should consider immediately making the same offer of judgment upon notice of the second lawsuit.  Defendants should also consider filing a motion to transfer venue to the first court rather than relitigating the mootness issue in the second court. 

For more information on the aforementioned case and the TCPA generally, contact Katherine Olson at (312) 334-3444 or kolson@messerstrickler.com.  

Alert! Debt Buyers and Debt Collectors May Need a License to Buy and Collect Debt in New Jersey

The United States District Court for the District of New Jersey recently denied a motion to dismiss a Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., claim against a debt buyer and a debt collector because the debt buyer failed to obtain a “consumer lender” license pursuant to the New Jersey Consumer Finance Licensing Act (“NJCFLA”).

In Veras v. LVNV Funding, LLC and MRS BPO, LLC, a New Jersey consumer filed a class-action FDCPA complaint against a debt buyer and debt collector alleging a violation of Section 1692e(10) of the FDCPA, which prohibits using a false representation of deceptive means to collect or attempt to collect consumer debt.  The debt collector sent a collection notice on behalf of the debt buyer in an attempt to collect a debt owed by the consumer.  The consumer alleged that the debt buyer and debt collector engaged in deceptive conduct because they attempted to collect consumer debt without obtaining a license under the NJCFLA.

The court determined that the debt buyer was considered a “consumer lender” under the NJCFLA because it “directly or indirectly engages…in the business of buying, discounting or endorsing notes…for compensation in amounts of $50,000 or less…”.  Therefore, the debt buyer was required to obtain a license under the NJCFLA.  Thus, even though the collection letter did not make any representation that the debt collector or debt buyer was licensed under the NJCFLA, the court still found that the allegations supported the FDCPA claim.

This case is interesting because New Jersey does not have a law expressly requiring debt collectors to obtain a license.  Instead, there are only bonding and registration requirements.  Thus, this court determined that the NJCFLA indirectly applies to debt collectors collecting in New Jersey because debt buyers are considered “consumer lenders” and are required to obtain a license in order to engage in collection activity.  

For more information on this case or the FDCPA, contact Stephanie Strickler at 312-334-3465 or sstrickler@messerstrickler.com

$23 Million Judgment Against Owners of Debt Collection Agency

On March 26, 2014, the United States District Court for the Central District of California entered a Final Order for Permanent Injunction and Monetary Judgment in Federal Trade Commission v. Rincon Management Services, LLC et al. pursuant to a stipulation between the Federal Trade Commission (“FTC”) and the two principal owners of Rincon Management Services, LLC (“Rincon”), a California-based collection agency.  The Final Order entered judgment in the amount of $23,084,885 against the two principal owners as equitable monetary relief.   Furthermore, the Final Order permanently enjoined the two principal owners from engaging in debt collection activities; assisting others engaged in debt collection activities; misrepresenting or assisting others in misrepresenting any material fact concerning financial-related products and services; and advertising, marketing, promoting, offering for sale, selling, or assisting others engaged in the advertising, marketing, promoting, offering for sale, or selling, of any portfolio of consumer or commercial debt and any program that gathers, organizes, or stores consumer information relating to a debt or debt collection activities.  All money paid to the FTC pursuant to the Judgment is required to be used for equitable relief, including consumer redress. 

In October 2011, the FTC filed a complaint for permanent injunction and other equitable relief against Rincon and other companies associated with Rincon.  The complaint alleged that defendants violated the Federal Trade Commission Act (“FTCA”) and the Fair Debt Collection Practices Act (“FDCPA”) by making bogus threats that consumers had been sued or could be arrested.  The Complaint also alleged that the defendants violated the FTCA and FDCPA by calling consumers and their employers, family, friends, and neighbors, posing as process servers seeking to deliver legal papers purportedly related to a lawsuit.  In most of the instances, the consumers did not even owe the debt the defendants were attempting to collect.  As Jessica Rich, the director of the FTC’s Bureau of Consumer Protection, commented: “These debt collectors focused on Spanish-speaking consumers and other people who were strapped for cash, and preyed on them by using abusive collection tactics in violation of federal law.”

As maintained in a recent FTC Press Release, the $23 million judgment will be suspended due to the defendants’ inability to pay.  However, certain personal assets defendants agreed to surrender and the $3 million in frozen funds held by the receiver as part of the FTC’s 2011 temporary restraining order will be exempt from the suspension.

The recent Judgment demonstrates the FTC’s commitment to suppressing illegal debt collection practices.  Notably, litigation still continues against several companies that were involved in Rincon’s illegal debt collection actions.

For more information on this lawsuit or on debt collection and fair debt collection statutes contact Joseph Messer at jmesser@messerstrickler.com or Katherine Olson at kolson@messerstrickler.com.  

Employers May Seek Orders of Protection against Workplace Violence

Earlier this year the State of Illinois enacted the Workplace Violence Protection Act which may aid employers in protecting their workforce, guests, customers and property.  The Act allows for the filing of orders of protection against employees who participated in violence, harassment or stalking at their place of employment.   The law applies to all employers that have at least 5 employees during any work week, whether the employer is an individual, partnership, corporation, association, limited liability company, business trust, government agency, the State, or a political subdivision.

Under the act, an employer may seek an order of protection to prohibit further violence or threats of violence by a person if:

1)      An employee has suffered unlawful violence or a credible threat of violence from the person; and

2)      The violence has been carried out or the credible threats of violence can reasonable carry out at employee’s place of work.

The House Bill 2590, which was the original bill that resulted in the Workplace Violence Protection Act, has been sponsored by State Senator Darin LaHood, who commented on the Act: “When an employee walks into work they should be afforded a certain level of protection from brutal acts of violence” stating that the Act gives an employer an opportunity to provide this protection.

An employer may also obtain an order of protection under the Illinois Domestic Violence Act of 1989, but under different circumstances:

1)      If an employer files an affidavit that shows reasonable proof that an employee has suffered either unlawful violence or a credible threat of violence by the defendant; and

2)      If an employer demonstrates that great or irreparable harm has been suffered, will be suffered, or is likely to be suffered by the employee.

An employer may obtain the order of protection from the local court under the Workplace Violence Protection Act in order to protect their workplace from violence. 

For more information on orders of protection that may be filed by employers and for other employment matters you may contact Dana Perminas at (312) 334-3474 or at dperminas@messerstrickler.com

New Compliance Resource: Fair Debt Collection Statutes by State

We know that our clients, as well as many other professionals in debt collection industry, are diligent in their efforts to comply with the Fair Debt Collection Practices Act (“FDCPA”) as well as state fair debt collection regulations.  However, while the FDCPA is familiar to many since it is applicable in all states, not everyone is aware that most of states also have their own fair debt collection statutes.

To aid our clients, friends and website visitors in their compliance needs, we have created a list of fair debt collection statutes by state (and U.S. territory) which is conveniently located on our website.   Our list contains the citations to state-specific debt collection laws and easy to use links to the statutes themselves.   However, while reviewing the state fair debt collection statutes, please remember that each U.S. state and territory is subject to the FDCPA, a federal regulation.  Even if state does not have its own state fair debt collection statute, the FDCPA is still applicable.

We hope this resource will serve you and your business well.  Messer Strickler, Ltd. partners Nicole Strickler & Joseph Messer are seasoned litigators and compliance advisors on the FDCPA, state fair debt collection regulations, and other consumer laws.  They have multiple years of experience representing their clients in consumer law litigation and compliance and also regularly present before the industry’s most recognized trade organizations.

Please keep in mind these state law resources are for informational purposes only and do not constitute legal advice. If you have any question regarding state and federal consumer laws, contact Nicole Strickler (nstrickler@messerstrickler.com, (312) 334-3442) or Joseph Messer (jmesser@messerstrickler.com, (312) 334-3440).