606 F.Supp.3d 1031
E.D. Wash.2022Background
- Plaintiff Jill Jackin received a January 13, 2021 debt-collection letter that identified Enhanced Recovery Company, account details, creditor, and amount due but used a RevSpring P.O. Box return address.
- The letter was printed and mailed by RevSpring, a third-party commercial mail vendor; Jackin alleges Enhanced transmitted her name, address, account number, creditor, and amount to RevSpring without her consent.
- Jackin filed a putative class action under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., alleging Enhanced violated § 1692c(b) by communicating debt-related information to a third party.
- Enhanced moved to dismiss, arguing (1) disclosures to a mail vendor are not actionable under § 1692c(b), (2) RevSpring is Enhanced’s agent, (3) FTC/CFPB guidance permits such outsourcing, and (4) a ban would unconstitutionally burden commercial speech.
- The Court evaluated the complaint under Rule 12(b)(6) standards and denied the motion, concluding Plaintiff plausibly alleged a § 1692c(b) violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether transmitting consumer debt information to a commercial mail vendor is a "communication" under § 1692c(b) | Transmitting debt details to RevSpring is a communication (direct or indirect) prohibited without consent | Transmission to a vendor is a passive use of a "medium," not a communication "with" a person under the statute | The statute defines "communication" to include indirect conveying of debt information through any medium; transmitting to RevSpring qualifies as a communication and is covered by § 1692c(b) |
| Whether disclosure is protected because the vendor is the debt collector's agent | No agency has been plausibly alleged; statutory exceptions for agents (e.g., attorneys) are limited | RevSpring is an agent of Enhanced, so disclosures are permissible | Court finds no basis to assume agency on the pleadings and reasons Congress expressly exempted certain agents, so agency cannot be read as a general exemption |
| Whether regulatory guidance or agency inaction (FTC/CFPB) authorizes disclosures to mail vendors | FTC/CFPB commentary and practices do not authorize disclosure of consumer debt details to mail vendors | FTC/CFPB have endorsed or not objected to use of outside vendors for mailing, implying permissibility | Court rejects reliance on agency inaction/guidance as dispositive and finds cited commentary distinguishable and not controlling |
| Whether banning disclosures to mail vendors unconstitutionally burdens commercial speech | FDCPA’s restriction is a permissible regulation of commercial speech to protect consumer privacy | Prohibiting use of vendors to send collection communications is an unconstitutional burden on commercial speech | Court holds restriction survives intermediate scrutiny: protecting consumer privacy is a substantial interest and § 1692c(b) is not more extensive than necessary given statutory exceptions |
Key Cases Cited
- Ass’n for L.A. Deputy Sheriffs v. County of Los Angeles, 648 F.3d 986 (9th Cir. 2011) (standard for construing pleadings on motion to dismiss)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (complaint must contain sufficient factual matter to state a plausible claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for civil pleadings)
- Gonzales v. Arrow Fin. Servs., 660 F.3d 1055 (9th Cir. 2011) (describing FDCPA’s remedial purpose)
- Henderson v. United Student Aid Funds, Inc., 918 F.3d 1068 (9th Cir. 2019) (agency is a question of fact for the court to decide)
- Hunstein v. Preferred Collection & Mgmt. Servs., 17 F.4th 1016 (11th Cir.) (discussion of § 1692c(b) scope and interpretation)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (Court’s treatment of disclosures to printing vendors noted as dicta)
- Valle Del Sol Inc. v. Whiting, 709 F.3d 808 (9th Cir. 2013) (intermediate scrutiny for restrictions on commercial speech)