February 12, 2016

Chad continues to support the Collection Industry through various speaking engagements at conferences around the country.

Please contact Chad about speaking at an upcoming event in your area.  This spring he will present at the following conferences:

Coalition of Higher Education Assistance Organizations Conference 2016 in Washington, DC

January 31st through February 3rd

South Carolina State Bursar's Meeting at the University of South Carolina

February 18th

Colorado Association of Administrators of Student Loans and Account Receivables in Golden City, CO

April 21st through April 22nd

PacWest Student Financial Services Conference 2016 in Olympic Valley, CA

May 11th through May 13th

Massachusetts Attorney General Maura Healy filed a lawsuit against Lustig, Glaser & Wilson, P.C. stemming from allegations that the law firm "repeatedly sued consumers for debts they did not owe or debts that were inaccurate," according to a news release from the attorney general.

The lawsuit was filed less than a week before the Consumer Financial Protection Bureau and Frederick J. Hanna & Associates, P.C., et al. reached a joint settlement in a similar case after nearly two-and-a-half years of investigation.  The settlement between the CFPB and the Hanna firm marked the end of an unprecedented federal lawsuit which the CFPB filed against Hanna in the U.S. District Court for the Northern District of Georgia.

In both instances, the volume of the collection lawsuits looks to have been a major factor in attracting the attention of the regulators.  The CFPB claimed the Hanna firm violated the FDCPA and the Consumer Financial Protection Act in its process of filing consumer lawsuits using affidavits of claim from the creditors in state court debt collection proceedings.  In the Massachusetts case, the Attorney General alleges the firm, "violated the state's consumer protection laws in pursuit of debts and its use of judicial proceedings." The complaint includes allegations that the firm filed more than 100,000 debt collection lawsuits in Massachusetts.  Notably, the Massachusetts Attorney General is seeking injunctive relief, restitution to consumers and civil penalties from the Lustig law firm.

The Court held that an unaccepted settlement offer or offer of judgment to satisfy the named plaintiff's individual claims does not moot the case when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated.  The case was remanded back to the U.S. District Court for the Central District of California to decide the case.

[The Court also considered whether the doctrine of derivative sovereign immunity applies to claims for violation of the TCPA, and held that federal contractors do not share the Government's absolute immunity from liability and litigation.]

The facts: in 2005 the U.S. Navy entered into a contract with the defendant, Campbell-Ewald Co., where Campbell would provide recruiting and advertising services.  As part of this contract, Campbell orchestrated more than 100,000 Navy-branded text messages to cell phone subscribers.  Many of the texts were issued to individuals who had not opted-in to receive such messages.  The named plaintiff, Jose Gomez, filed a class action complaint against Campbell, alleging that the company had violated the TCPA by sending text messages to nonconsenting recipients.  Before Gomez moved for class certification, Campbell extended a Rule 68 offer of judgment and a separate settlement offer to Gomez which Gomez refused.  Campbell argued that this offer of "complete relief" to Gomez rendered his individual and class claims moot.

At trial, the U.S. District Court for the Central District of California held that Gomez's claims were not moot, and when Campbell appealed that ruling, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court decision.  Campbell petitioned the U.S. Supreme Court for review, which was granted on May 18, 2015.

Justice Ruth Bader Ginsburg issued the Court's majority opinion affirming the Ninth Circuit's holding.  Justice Ginsburg explained that Gomez's complaint was not eliminated by Campbell's unaccepted offer to satisfy his individual claim.  The Court's majority applied basic principles of contract law, reasoning that "Campbell's settlement bid and Rule 68 offer of judgment, once rejected, had no continuing efficacy.  Absent Gomez's acceptance, Campbell's settlement offer remained only a proposal, binding neither Campbell nor Gomez.  Having rejected Campbell's settlement bid, and given Campbell's continuing denial of liability, Gomez gained no entitlement to the relief Campbell previously offered."

In a detailed and pointed dissenting opinion, Chief Justice John Roberts thoroughly examined and criticized the majority opinion's reliance on contract law to resolve the central issue in the case.  Chief Justice Roberts said, "[t]he majority is correct that because Gomez did not accept Campbell's settlement, it is a "legal nullity" as a matter of contract law. The question, however, is not whether there is a contract; it is whether there is a case or controversy under Article III. If the defendant is willing to give the plaintiff everything he asks for, there is no case or controversy to adjudicate, and the lawsuit is moot."

Grounding his dissent on the prohibition against federal courts issuing advisory opinions, Chief Justice Roberts, joined by Justices Scalia and Alito, explained that they dissented from the majority opinion because "federal courts exist to resolve real disputes, not to rule on a plaintiff's entitlement to relief already there for the taking."

The Campbell-Ewald case has significant ramifications for "no-injury" statutory damage class action lawsuits filed under federal statutes such as the FCRA, the TCPA and the FDCPA. In those suits, plaintiffs often seek the specific damages provided for by statute, not actual damages. As a result, a plaintiff's maximum recovery can be predetermined. Prior to the Supreme Court's decision in Campbell-Ewald, if a defendant made a Rule 68 offer of judgment in the statutory amount, plus attorneys' fees, the plaintiff's claim could be mooted because the plaintiff would have been considered afforded complete relief. But now, under the Campbell-Ewald decision, defendants may not successfully utilize a Rule 68 offer to moot the litigation.

However, Campbell-Ewald has not completely eliminated Rule 68 as a class action defense tool. Although a mere offer of the sum owed is insufficient to eliminate a court's jurisdiction to decide the case to which the offer related, Justice Roberts confirmed in the dissent that "[t]he good news is that this case is limited to its facts. The majority holds that an offer of complete relief is insufficient to moot a case. The majority does not say that payment of complete relief leads to the same result. . . . the majority's analysis may have come out differently if Campbell had deposited the offered funds with the District Court. . . . This Court leaves that question for another day - assuming there are other plaintiffs out there who, like Gomez, won't take 'yes' for an answer."

Although the Campbell-Ewald decision "does not prevent a defendant who actually pays complete relief - either directly to the plaintiff or to a trusted intermediary - from seeking dismissal on mootness grounds," the Court, unfortunately, did not consider the practical aspects of how a defendant might actually pay for complete relief, rather than merely offer complete relief, when a plaintiff in a variety of contexts may be entitled to not only fixed statutory damages, but also attorneys' fees, which are in an undetermined amount.

Favorable Decision Regarding Voicemails

An Oregon federal court issued a favorable opinion for the industry in December of 2015 in Peak v. Professional Credit Service. The voicemail at issue in the case was very similar to the voicemail from the well known Zortman opinion. The court held the voicemail was a communication, but not a communication "with" a third party. According to the court, it would be unfair to hold debt collectors liable for third party communications in these situations, unless it was reasonably foreseeable that a third party could overhear the message. Some of the factors the court found worked in the collector's favor were; (1) it was not reasonably foreseeable that a third party could hear the message (2) it was a cell phone; (3) the voicemail greeting identified only the plaintiff; and (4) plaintiff indicated it was the "best" number to reach her. The court noted that if only one of those three factors had been present, there would have been an issue of fact as to whether the disclosure was reasonably foreseeable, but because all three factors were favorable to the collector, the court granted summary judgment in favor of the collector.

Adverse Decision When Leaving a Message with a Third Party

Halberstam v. Global Credit and Collection Corp., No 15-5696, 2016 WL ------- (E.D.N.Y. Jan 12, 2016).

The collector called the consumer's number, a third party answered, stated the consumer was not home yet and asked to take a message. The collector then gave his name and number. When the collector was specifically asked what the call was regarding, the collector said it was about a "personal business matter."

The issue before the court was whether the collector, whose telephone call to a consumer is answered by a third party, may leave his name and number for the consumer to return the call, without disclosing that he is a debt collector, or whether the debt collector must refrain from leaving callback information and attempt the call at a later time.

The federal district court in New York ruled that the collector must not answer those questions, end the call, and try again later. The court's reasoning was that the collector withheld information about his identity as a collector, and this may induce the consumer to contact the debt collector - because the consumer does not know whose call he is returning. The court explained that the consumer may not wish to speak to the collector, and it was the undisclosed nature of the message with the third party that induced the consumer to call the collector. The court found that this is an undesirable result and so the debt collector must refrain from leaving callback information and attempt the call at a later time.

The key points/facts from this case are that if a third party asks, the collector is to state the name of their employer. Prior to that, they are required to give their name only. So the only information that was given that is not covered by the FDCPA are the call back number and personal business matter. This is a single district court decision that we understand is likely to be appealed to the 2nd Circuit Court of Appeals. The firm suggests you understand the theory of liability, review your procedure for interacting with third parties, and watch this case as it develops on appeal.

From the MAPlist:

There has been a significant amount of recent activity on this issue arising from the consumer bar - to include matters involving several members of the Halberstram family. We have gathered from our colleagues and friends who also defend the industry that there are several consumer plaintiff attorneys who are likely training their plaintiffs to have family members answer the phone and solicit a message from the collector.

Be aware of this issue if you regularly come in contact with NY and/or NJ firms such as: Harvey Rephen, Natasha Santiago, David Palace, Barshay Sanders, Fishbein and Maximov.

The path of least liability suggest that in this region collectors should respond: "No. Thank you. Have a nice day" if a third party asks to take a message.