189 F. Supp. 3d 442
M.D. Pa.2016Background
- Daubert received radiology services in Nov. 2013, incurred a small unpaid balance that was billed and eventually placed with NRA Group, LLC for collection in April 2014.
- NRA’s vendor mailed a collection letter with a barcode visible through the envelope window; the barcode, when scanned with a compatible reader, revealed Daubert’s account number.
- NRA placed 69 calls to Daubert’s cell using its Mercury predictive dialer; only one call was answered. Daubert never directly gave NRA his number or consent to be called.
- NRA’s Rule 30(b)(6) designee testified the dialer dials numbers from campaigns without human intervention after campaign setup; NRA submitted an affidavit contradicting that testimony, which the court excluded.
- NRA argued (1) the barcode did not violate the FDCPA or, alternatively, it was entitled to bona fide-error statutory immunity; and (2) calls were permissible under the TCPA because NRA had prior express consent via the creditor chain.
- The court denied summary judgment on the FDCPA claim due to a triable issue about NRA’s bona fide-error defense, and granted summary judgment to Daubert on the TCPA claim (no prior express consent and the dialer qualifies as an ATDS).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a barcode on an envelope that can be scanned to reveal an account number violates 15 U.S.C. § 1692f(8) | Douglass controls: an account number (even embedded) is "capable" of identifying a debtor and invades privacy, so barcode violates §1692f(8) | Barcode is benign because it reveals nothing to the naked eye and differs from Douglass’ naked account number; some courts have allowed barcodes | Court: Barcode is capable of identifying the debtor when scanned and thus violates §1692f(8); but summary judgment denied because genuine factual dispute exists over statutory immunity |
| Whether NRA is entitled to bona fide-error statutory immunity under 15 U.S.C. § 1692k(c) | N/A (Plaintiff seeks liability) | NRA relied on contemporaneous district-court decisions and compliance procedures; mailing preceded Douglass decision, so error may be bona fide | Court: Genuine dispute of material fact exists as to whether NRA’s violation was unintentional and resulted from a bona fide error despite reasonable procedures; denial of summary judgment for Plaintiff on FDCPA claim |
| Whether NRA’s dialer is an ATDS under the TCPA (47 U.S.C. § 227) | Dialer qualifies as ATDS: it dials numbers without human intervention after campaign setup and has capacity to generate/dial random numbers | Dialer requires human intervention at dialing (per Sarver affidavit), so not an ATDS | Court: Schaar’s Rule 30(b)(6) testimony shows no human intervention at dialing and capacity to dial random numbers; dialer is an ATDS; summary judgment for Plaintiff on TCPA issue |
| Whether calls were made with prior express consent (TCPA) | N/A (Plaintiff denies consent) | Consent was effectively given to the initial creditor and passed along to collector through billing chain | Court: Defendant failed to prove Daubert or any upstream provider had given express consent; no evidence Daubert provided his cell number to creditor; summary judgment for Plaintiff on lack of prior express consent |
Key Cases Cited
- Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir. 2014) (account number on collection envelope is not benign and implicates FDCPA privacy concerns)
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, 559 U.S. 573 (2010) (bona fide-error defense does not cover mistaken interpretations of the FDCPA)
- Beck v. Maximus, 457 F.3d 291 (3d Cir. 2006) (elements required to invoke FDCPA bona fide-error statutory immunity)
- Mais v. Gulf Coast Collection Bureau, 768 F.3d 1110 (11th Cir. 2014) (prior express consent can be conferred to a creditor and passed to a third-party collector when the consumer provided a number to the creditor in connection with the debt)
- Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247 (3d Cir. 2007) (sham-affidavit doctrine: parties cannot create genuine disputes by filing affidavits contradicting earlier sworn testimony without plausible explanation)