Consumer Crossroads: Where Financial Services and Litigation Intersect

The Third Circuit Court of Appeals issued an en banc decision in Riccio v. Sentry Credit, overturning Graziano v. Harrison, after finding that there is no written dispute requirement in Section 1692g(a)(3) of the Fair Debt Collection Practices Act (FDCPA). According to the court, this decision ends "a circuit split and restores national uniformity to the meaning of §1692g." Moreover, the decision applies retroactively to any claim still open on the issue, thus closing the chapter on a written requirement for Section 1692g.

Earlier this year, this blog reported on the Supreme Court's grant of certiorari in Rotkiske v. Klemm to resolve a split in circuits on the Fair Debt Collection Practices Act's (FDCPA) statute of limitations. This week, in an 8:1 opinion delivered by Justice Thomas, the Court concluded that the one-year statute of limitations in the FDCPA begins to run when the violation occurs, not when the violation is discovered. In doing so, they overturned rulings by the Fourth and Ninth Circuit, which had held the FDCPA's statute of limitations was subject to equitable tolling.

The Second Circuit, in King v. Time Warner Cable, Inc., and the Third Circuit, in Dominguez v. Yahoo!, Inc., relied upon the D.C. Circuit's decision in ACA International v. FCC in limiting the definition of an autodialer under the Telephone Consumer Protection Act. Dominguez found that Yahoo's text message system did not fit the definition of autodialer, while King emphasized that only a device that currently has the ability to perform autodialing functions can qualify as an autodialer system.

In Rotkiske v. Klemm, the Third Circuit ruled that the statute of limitations for a Fair Debt Collection Practices Act (FDCPA) claim begins to toll on the date of the alleged violation, not when the plaintiff discovers the violation. That's significant, because the Fourth and Ninth Circuits have ruled otherwise.

The Third Circuit Court of Appeals recently reiterated how a debt collector may run afoul of the Fair Debt Collection Practices Act ("FDCPA") by sending a misleading follow-up, even if it served a compliant demand letter weeks earlier.

In another court's journey into the murky waters of constitutional standing post-Spokeo, the Third Circuit Court of Appeals concluded that one single voicemail on a consumer's cell phone is sufficient to confer standing under the Telephone Consumer Protection Act (TCPA). In Sussino v. Work Out World, Inc., the plaintiff alleged that she received an unsolicited call on her cell phone from Work Out World (WOW). When she did not answer, WOW left a prerecorded promotional offer lasting more than one minute on her voicemail. WOW moved to dismiss for lack of standing under Article III. The district court granted WOW's motion on the grounds that a single solicitation was not "the type of case that Congress was trying to protect people against," and in any event, the call and voicemail did not cause a concrete injury. Sussino appealed.

In a cautionary tale for the defense bar, the Third Circuit recently upheld a consumer's TCPA claims and reversed summary judgment on the FDCPA claims in Daubert v. NRA, Nos. 16-3613 and 16-3629 (3d Cir. July 3, 2017).

The Second Circuit Court of Appeals has split with the Third Circuit, the Eleventh Circuit, and the Federal Communications Commission (FCC), and utilized contract principles to hold that a consumer may not necessarily have the ability to unilaterally revoke consent to contact under the Telephone Consumer Protection Act (TCPA). The decision shifts the focus of a TCPA claim from simply deciding whether the consumer revoked consent to whether consent to contact could be revoked by contract standards.