Sussman v. I.C. System, Inc.
928 F. Supp. 2d 784
S.D.N.Y.2013Background
- Sussman, a New York resident, sues I.C. System for FDCPA and NY GBL §399-p violations.
- I.C. allegedly used an automatic dialer to call Sussman’s home 50+ times about a debt he did not owe.
- Calls terminated when answered, and did not identify the caller or the debt’s payer.
- On Nov. 4, 2011, Sussman informed I.C. in writing to stop; calls continued through Jan. 10, 2012.
- Plaintiff also alleges a broader pattern: 100,000+ calls to thousands of New Yorkers over roughly three years, with calls hung up and no proper identification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NY GBL §399-p is preempted by the TCPA | Sussman argues TCPA does not preempt NY law | I.C. contends §399-p is expressly/implicitly preempted | Not preempted; TCPA does not logically preempt §399-p; concurrent regulation |
| Whether NY GBL §399-p claim survives when TCPA applies | TCPA savings clause does not save §399-p from preemption | Savings clause precludes state-law claims tied to interstate calls | §399-p not preempted; no field or conflict preemption; Congress intended interstitial protection, not exclusive occupancy |
| Whether §1692c(c) claim survives after a stop-communication instruction | Continued calls after written stop instruction violate §1692c(c) | Bona fide error defense may apply; extrinsic facts material | Claim survives; factual questions remain about bona fide error defense |
| Whether §1692d(5) supports a harassment claim | Repeated calls to debt not owed show intent to harass | Calls during reasonable hours or unanswered calls challenge plausibility | Plaintiff pleads plausible §1692d(5) claim |
| Whether §1692d(6) supports a lack of meaningful disclosure of identity | Calls hung up before/when answered show lack of caller identity disclosure | Defendant allegedly disclosed minimal identity in calls | Plausible §1692d(6) claim surviving the pleading stage |
| Whether §1692e(11) supports a misrepresentation as a debt collector | Unclear if calls disclosed enough to indicate debt collection | No clear misrepresentation; no identity disclosure alleged | Plausible §1692e(11) claim based on undisclosed debt-collection status |
Key Cases Cited
- Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643 (S.D.N.Y. 2006) (broad FDCPA interpretation of ‘communication’ and liability for calls that lead to return contact)
- Gottlieb v. Carnival Corp., 436 F.3d 335 (2d Cir. 2006) (TCPA as interstitial law supplementing state regulation)
- Van Bergen v. Minnesota, 59 F.3d 1548 (8th Cir. 1995) (savings clauses do not imply preemption of civil claims by negative inference)
- Drake v. Laboratory Corp. of Am. Holdings, 458 F.3d 116 (2d Cir. 2006) (savings clause and TCPA intent not to preempt civil state law claims)
- Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84 (2d Cir. 2012) (presumption against preemption and focus on congressional intent)