Courtney Douglass v. Convergent Outsourcing ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-3588
___________
COURTNEY DOUGLASS, on behalf
of herself and all others similarly situated,
Appellant
v.
CONVERGENT OUTSOURCING,
formerly known as ER SOLUTIONS, INC.
_______________________
On Appeal from the District Court
for the Eastern District of Pennsylvania
D.C. Civil No. 2-12-cv-01524
(Honorable Joel H. Slomsky)
______________
Argued April 8, 2014
Before: FISHER and SCIRICA, Circuit Judges, and
*MARIANI, District Judge
*Honorable Robert D. Mariani, District Judge for the Middle
District of Pennsylvania, sitting by designation.
(Filed: August 28, 2014)
Cary L. Flitter, Esq. [ARGUED]
Andrew M. Milz, Esq.
Flitter Lorenz
450 North Narberth Avenue
Suite 101
Narberth, PA 19072
SaraEllen M. Hutchison, Esq.
1752 Northwest Market Street
Suite 915
Seattle, WA 98107
Counsel for Appellant
Richard J. Perr, Esq. [ARGUED]
Fineman, Krekstein & Harris
1735 Market Street
Mellon Bank Center, Suite 600
Philadelphia, PA 19103
Ed W. Walton, Esq.
Bush & Ramirez
101 Metro Drive
Terrell, TX 75160
Counsel for Appellee
2
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
In this case we are asked to decide whether the
disclosure of a consumer’s account number on the face of a
debt collector’s envelope violates § 1692f(8) of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et
seq. Section 1692f(8) limits the language and symbols that a
debt collector may place on envelopes it sends to consumers.
The District Court held the account number met a “benign
language” exception to § 1692f(8) and granted summary
judgment to the debt collector. We will vacate and remand.1
I.
On May 16, 2011, Plaintiff Courtney Douglass
received a debt collection letter from Convergent Outsourcing
(“Convergent”) regarding the collection of a debt that
Douglass allegedly owed T-Mobile USA. Visible on the face
of the letter, above Douglass’s name and address, was the
following sequence of numbers representing Douglass’s
account number with Convergent: “R-xxxx-5459-R241.”
This number does not refer or relate to her account with T-
Mobile USA. Convergent mailed the letter in an envelope
1
The District Court had jurisdiction under 28 U.S.C. § 1331.
Our jurisdiction is provided by 28 U.S.C. § 1291.
3
with a glassine window. When mailed, the top portion of the
letter, including Douglass’s account number, was visible
through the window. Also visible through the window was
Douglass’s name and address, a United States Postal Service
bar code, and a quick response (“QR”) code, which, when
scanned by a device such as a smart phone, revealed the same
information as that displayed through the glassine window, as
well as a monetary amount corresponding to Douglass’s
alleged debt.
This action was filed in the United States District
Court for the Eastern District of Pennsylvania.2 The
complaint was amended to add Douglass as the sole named
plaintiff, as well as to initiate a putative class action on behalf
of residents of Montgomery County, Pennsylvania, who
received similar letters from Convergent exposing their
account numbers. The operative Second Amended Complaint
alleges when Convergent disclosed Douglass’s account
number, both on the face of the envelope and embedded in
the QR code, it violated § 1692f(8) of the FDCPA, which
prohibits “using any language or symbol” other than a debt
collector’s name and address on an envelope. 15 U.S.C.
§ 1692f(8). Convergent moved for summary judgment under
Fed. R. Civ. P. 56, contending the account number qualified
as “benign language” that § 1692f(8) was not meant to
prohibit.
The District Court granted summary judgment to
2
Another recipient of a debt collection letter from
Convergent, Elisa Brooks-Cunningham, initially filed the
complaint. Brooks-Cunningham is no longer a party to this
action.
4
Convergent. The court reasoned that a strict interpretation of
§ 1692f(8) would contradict Congress’s true intent, aimed at
barring markings on an envelope that would reveal the letter
to pertain to debt collection or harass or humiliate a
consumer. Accordingly, the court adopted a benign language
exception to the statute, limiting § 1692f(8)’s reach to
language or symbols that either
(1) signal the letter’s purpose of debt collection or (2) tend to
humiliate, threaten, or manipulate the recipient of the letter.
The court concluded the account number qualified as benign
language because it neither indicated the purpose of the letter
nor threatened, harmed, or manipulated Douglass. This
timely appeal followed.3
II.
On appeal, Douglass contends the language of §
1692f(8) is unambiguous and plainly applies to Convergent’s
disclosure of her account number on the face of the
envelope.4 Convergent maintains that to enforce the plain
meaning of § 1692f(8) would lead to absurd results and the
3
We exercise plenary review of an order granting a motion
for summary judgment and apply the same standard the
District Court applied. Lesher v. Law Offices of Mitchell N.
Kay, P.C., 650 F.3d 993, 996 (3d Cir. 2011). Summary
judgment may be granted only where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
4
Douglass no longer presses her argument that Convergent
violated the FDCPA by including the QR Code on the
envelope. Appellant Br. 5 n.2. We therefore do not decide
that issue.
5
statute must be read to allow for certain benign language,
including account numbers, on the face of the envelope. In
reply, Douglass insists that even if § 1692f(8) included an
exception for benign language, her account number with
Convergent is not benign. We agree with Douglass that §
1692f(8) applies to this set of facts and her account number is
not benign.
Congress enacted the FDCPA in 1977 “to eliminate
abusive debt collection practices by debt collectors, to insure
that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and
to promote consistent State action to protect consumers
against debt collection abuses.” 15 U.S.C.
§ 1692(e). These abusive debt collection practices, Congress
found, lead to personal bankruptcies, marital instability, the
loss of jobs, and, relevant to our analysis, “invasions of
individual privacy.” Id. § 1692(a). “As remedial legislation,
the FDCPA must be broadly construed in order to give full
effect to these purposes.” Caprio v. Healthcare Revenue
Recovery Grp., LLC, 709 F.3d 142, 148 (3d Cir. 2013).
To further the FDCPA’s purposes, § 1692f prohibits a
debt collector from using “unfair or unconscionable means”
to collect a debt. 15 U.S.C. § 1692f. The statute sets out a
nonexclusive list of conduct that qualifies as unfair or
unconscionable. Id. Subparagraph 8, the focus of this appeal,
prohibits the following conduct:
[u]sing any language or symbol, other than the
debt collector’s address, on any envelope
when communicating with a consumer by use
of the mails or by telegram, except that a debt
6
collector may use his business name if such
name does not indicate that he is in the debt
collection business.
Id. § 1692f(8).
This case requires us to determine whether § 1692f(8)
prohibits Convergent’s disclosure of Douglass’s account
number. In statutory interpretation, we begin with the text.
Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367
(3d Cir. 2011). “If the statute’s plain language is
unambiguous and expresses [Congress’s] intent with
sufficient precision, we need not look further.” Id. (citing In
re Lord Abbett Mut. Funds Fee Litig., 553 F.3d 248, 254 (3d
Cir. 2009)). But if the “literal application of a statute will
produce a result demonstrably at odds with the intentions of
its drafters,” then we are obligated to “construe statutes
sensibly and avoid constructions which yield absurd or unjust
results.” United States v. Fontaine, 697 F.3d 221, 227 (3d
Cir. 2012) (internal citations and quotation marks omitted).
Where the plain meaning of a statute would lead to an absurd
result, we presume “the legislature intended exceptions to its
language [that] would avoid results of this character.” Gov’t
of Virgin Islands v. Berry, 604 F.2d 221, 225 (3d Cir. 1979)
(quoting United States v. Kirby, 74 U.S. (7 Wall.) 482, 487
(1868)).
As a threshold matter, we conclude that § 1692f(8)’s
prohibition on language and symbols applies to markings that
are visible through a transparent window of an envelope.
Section 1692f(8) regulates language “on any envelope.” 15
U.S.C. § 1692f(8) (emphasis added). In this case, the alleged
violation involves language printed on the letter itself that
7
appeared through the glassine window of the envelope.
Interpreting § 1692f(8) in accordance with its plain meaning,
we construe language “on any envelope” to mean language
appearing on the face of an envelope. The statute’s context
further confirms this construction. Section 1692f evinces
Congress’s intent to screen from public view information
pertinent to the debt collection. See 15 U.S.C. § 1692f(7)
(prohibiting correspondence by post card); id. § 1692f(8)
(permitting a debt collector’s business name to appear on an
envelope only if “such name does not indicate that he is in the
debt collection business”). Like language printed on the
envelope itself, language appearing through a windowed
envelope can be seen by anyone handling the mail. And
Convergent makes no argument to the contrary. Accordingly,
we hold § 1692f(8) applies to language visible through a
transparent window of an envelope.
Having concluded that § 1692f(8) applies in general to
the facts before us, we address whether Convergent’s
disclosure of Douglass’s account number violates the
FDCPA. We find it does.
To prevail on an FDCPA claim, a plaintiff must prove
that (1) she is a consumer, (2) the defendant is a debt
collector, (3) the defendant’s challenged practice involves an
attempt to collect a “debt” as the Act defines it, and (4) the
defendant has violated a provision of the FDCPA in
attempting to collect the debt. See, e.g., Piper v. Portnoff
Law Assocs., Ltd., 396 F.3d 227, 232 (3d Cir. 2005). The
only element at issue in this case is the fourth—whether
Convergent has violated § 1692f(8) of the FDCPA.
The text of § 1692f(8) is unequivocal. “[A]ny
8
language or symbol,” except the debt collector’s address and,
in some cases, business name, may not be included “on any
envelope.” 15 U.S.C. § 1692f(8). The plain language of §
1692f(8) does not permit Convergent’s envelope to display an
account number. Because the statute’s language is plain, our
sole function is “to enforce it according to its terms,” so long
as “the disposition required by that [text] is not absurd.”
Alston v. Countrywide Fin. Corp., 585 F.3d 753, 759 (3d Cir.
2009) (quoting Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004)).
Convergent does not dispute that the plain language of
§ 1692f(8) prohibits including Douglass’s account number on
the face of the envelope. Rather, Convergent contends that a
literal application of the statute creates an absurdity. If the
statute is interpreted to bar any language other than a debt
collector’s name and address, the argument follows, then no
debt collector could ever send a letter through the mail—the
envelope could not display the name and address of the
recipient or even a stamp without violating the FDCPA.
Convergent suggests such an interpretation cannot possibly
reflect Congress’s intent. Accordingly, Convergent maintains
that to prevent absurd results we must adopt a “benign
language” exception to the FDCPA that would allow for
markings on an envelope so long as they do not suggest the
letter’s purpose of debt collection or humiliate or threaten the
debtor.
We need not decide whether § 1692f(8) contains a
benign language exception because even if such an exception
existed, Douglass’s account number is not benign. While
courts may presume Congress intended an exception to a
statute that otherwise produces absurd results, see Berry, 604
F.2d at 225, the contours of such an exception must comport
9
with the purposes of the Act, Caprio, 709 F.3d at 148; see
also Peter v. GC Servs. L.P., 310 F.3d 344, 352 (5th Cir.
2002) (holding that an exception for benign language could
not be “stretched to cover” conduct by a debt collector
implicating a “core concern of the FDCPA”). In other words,
we cannot find language exempt from
§ 1692f(8) if its disclosure on an envelope would run counter
to the very reasons Congress enacted the FDCPA.
Here, Convergent’s disclosure implicates a core
concern animating the FDCPA—the invasion of privacy.
Section 1692(a) of the FDCPA explains that Congress
enacted the law in response to “abundant evidence” of
abusive debt collection practices that cause manifest harms to
individuals, among them “invasions of individual privacy.”
15 U.S.C. § 1692(a). The disclosure of Douglass’s account
number raises these privacy concerns. The account number is
a core piece of information pertaining to Douglass’s status as
a debtor and Convergent’s debt collection effort. Disclosed
to the public, it could be used to expose her financial
predicament. Because Convergent’s disclosure implicates
core privacy concerns, it cannot be deemed benign.
Though several courts, including the Courts of
Appeals for the Fifth and Eighth Circuits, have interpreted §
1692f(8) to permit an exception for certain benign or
innocuous markings, they did so in the context of envelope
markings that did not have the potential to cause invasions of
privacy. In Goswami v. American Collections Enterprise,
Inc., 377 F.3d 488 (5th Cir. 2004), the Fifth Circuit held the
marking “priority letter” on the face of an envelope did not
violate the FDCPA. Because the Fifth Circuit found
§ 1692f(8) ambiguous, it looked to the statute’s legislative
10
history and interpretation by the FTC to determine Congress’s
intent. Id. at 493-94. It considered the FTC’s interpretation
of the statute persuasive because it exempts a category of
“harmless words or symbols” from § 1692f(8)’s reach. Id. at
494 (quoting FTC Statements of General Policy or
Interpretation Staff Commentary On the Fair Debt Collection
Practices Act (hereinafter “FTC Staff Commentary”), 53 Fed.
Reg. 50,097-02, 50,108 (Dec. 13, 1988)).5 In addition, the
court referred to Senate Report 95-382, which explains the
Senate’s interpretation of the FDCPA bill and describes §
1692f(8) as prohibiting “symbols on envelopes indicating that
the contents pertain to debt collection.” Id. (quoting S. Rep.
No. 95-382, at 8 (1977), reprinted in 1977 U.S.C.C.A.N.
1695, 1702) (emphasis added). In light of these sources, the
Fifth Circuit concluded that Congress meant to exclude
innocuous markings from § 1692f(8)’s prohibition. Id. at
494.
The Eighth Circuit adopted a similar statutory
exception in Strand v. Diversified Collection Service, Inc.,
380 F.3d 316 (8th Cir. 2004). In Strand, the Eighth Circuit
was asked to determine whether markings on an envelope
reading “PERSONAL AND CONFIDENTIAL” and
“IMMEDIATE REPLY REQUESTED,” as well as a
corporate logo, violated the FDCPA. Id. at 317. The court
5
The FTC Staff Commentary is not a formal regulation and is
not binding. FTC Staff Commentary, 53 Fed. Reg. at 50,098
(stating the commentary does not have the force of “formal
agency action” and “is not binding on the Commission or the
public”); see also Heintz v. Jenkins, 514 U.S. 291, 298 (1995)
(declining to give conclusive weight to the FTC’s
interpretation of the FDCPA).
11
reasoned that the plain meaning of
§ 1692f(8) created “bizarre results” and therefore referred to
other sources to discern Congress’s intent. Id. at 318.
Relying on the FDCPA’s stated purpose, the legislative
history, and the FTC Staff Commentary, the Eighth Circuit
concluded that in enacting
§ 1692f(8) Congress intended to proscribe only those
markings that would reveal the contents of the letter to pertain
to debt collection. Id. at 318-19. Benign markings were
therefore exempt. Id. at 319.6
The disclosures in Goswami and Strand do not raise
the privacy concerns present in this case. The “priority letter”
marking in Goswami revealed no information about the
debtor. 377 F.3d at 494. Nor did the corporate logo and
markings reading “PERSONAL AND CONFIDENTIAL”
and “IMMEDIATE REPLY REQUESTED” in Strand. 380
F.3d at 319. The Fifth and Eighth Circuits found these
markings innocuous because they did not intimate the
6
Several district courts have adopted benign language
exceptions similar to those crafted by the courts in Goswami
and Strand. Waldron v. Prof’l Med. Mgmt., Civ. No. 12-
1863, 2013 WL 978933, at *3-6 (E.D. Pa. Mar. 13, 2013)
(finding a QR code met a benign language exception to §
1692f(8)); Johnson v. NCB Collection Servs., 799 F. Supp.
1298, 1305 (D. Conn. 1992) (holding § 1692f(8) permits the
display of benign language, including the label “Revenue
Department,” on an envelope); Masuda v. Thomas Richards
& Co., 759 F. Supp. 1456, 1466 (C.D. Cal. 1991) (adopting a
benign language exception and applying it to language on an
envelope reading “PERSONAL & CONFIDENTIAL” and
“Forwarding and Address Correction Requested”).
12
contents of the letters to pertain to debt collection. Strand,
380 F.3d at 319; Goswami, 377 F.3d at 494; see also Johnson,
799 F. Supp. at 1305 (holding the label “Revenue
Department” was an innocuous marking not prohibited by §
1692f(8)); Masuda, 759 F. Supp. at 1466 (finding no FDCPA
violation where an envelope contained language reading
“PERSONAL & CONFIDENTIAL” and “Forwarding and
Address Correction Requested”). But these courts did not
confront an envelope that displayed core information relating
to the debt collection and susceptible to privacy intrusions.
For this reason, the cases cited by Convergent are inapposite.
Neither Senate Report 95-382 nor the FTC Staff
Commentary supports an exception to § 1692f(8) that would
exempt the identifying information in this case. The Senate
Report lists specific practices that § 1692f would prohibit:
collecting amounts in excess of the debt or
interest owed; causing charges for
communications to be billed to a consumer;
repossessing property if there is no valid
security interest or if it is exempt by law from
repossession; communicating information about
a debt by postcard; and using symbols on
envelopes indicating that the contents pertain to
debt collection.
S. Rep. No. 95-382, at 8. But this list does not purport to be
complete, and the Report makes no mention of the sort of
debtor-identifying information at issue in this case. Absent a
more relevant statement regarding the presence of personal
data on debt collection envelopes, this legislative history does
not support a construction of
13
§ 1692f(8) that would permit the disclosure of information
implicating a core concern of the FDCPA.
The FTC Staff Commentary is likewise unpersuasive.7
The FTC interprets
§ 1692f(8) to permit the presence on an envelope of
“harmless words or symbols” and lists examples of harmless
markings—a Western Union logo, the label “telegram,” or the
word “Personal” or “Confidential.” FTC Staff Commentary,
53 Fed. Reg. at 50,108. But like Senate Report 95-382, the
FTC Staff Commentary does not address markings that have
the potential to identify the debtor and her debt. Moreover,
the examples offered by the FTC, which are similar to those
addressed in Goswami and Strand, bear no relation to the
disclosure in this case.
Convergent insists that Douglass’s account number is a
meaningless string of numbers and letters, and its disclosure
has not harmed and could not possibly harm Douglass.8 But
7
As noted above, the FTC’s interpretation is not a formal rule
entitled to some deference. It is at most persuasive,
nonbinding authority. Goswami, 377 F.3d at 493 n.1.
8
Douglass seeks only statutory damages. See Weiss v. Regal
Collections, 385 F.3d 337, 340 (3d Cir. 2004) (recognizing a
private action under the FDCPA can seek relief in the form of
actual damages sustained or “such additional damages as the
court may allow” (quoting 15 U.S.C. § 1692k(a))).
Convergent contends that if we find a violation of the FDCPA
in this case, Douglass is not entitled to those damages because
Convergent’s disclosure was at most a technical breach. We
do not decide this matter because it is for the District Court to
determine in the first instance, based on the relevant factors
set forth in 15 U.S.C. § 1692k(b). See 15 U.S.C. §
14the account number is not meaningless—it is a piece of
information capable of identifying Douglass as a debtor. And
its disclosure has the potential to cause harm to a consumer
that the FDCPA was enacted to address. As we have stated
before, the FDCPA “must be broadly construed in order to
give full effect to [Congress’s remedial] purposes.” Caprio,
709 F.3d at 148. Construing § 1692f(8) in accord with the
FDCPA’s purposes in § 1692(a), we find the statute not only
proscribes potentially harassing and embarrassing language,
but also protects consumers’ identifying information.
Accordingly, Douglass’s account number is impermissible
language or symbols under § 1692f(8).9
III.
For the foregoing reasons, we will vacate the District
Court’s order granting summary judgment to Convergent and
remand for further proceedings in accordance with this
opinion.
1692k(b)(2) (listing factors to consider in the damages
determination, including “the frequency and persistence of
noncompliance by the debt collector, the nature of such
noncompliance, the resources of the debt collector, the
number of persons adversely affected, and the extent to which
the debt collector’s noncompliance was intentional”).
9
We recognize that 15 U.S.C. § 1692f(8) should not be read
to create absurd results. But we believe the disclosure of
private information in this case is proscribed by the Act. We
express no opinion as to the benign language exception that
some courts have adopted.
15