The District of Oregon recently addressed third party disclosures in Peak v. Professional Credit Service, case no. 6:14-CV-01856-AA, 2015 WL 7862774 (D. Or. Dec. 2, 2015). Plaintiff spoke with Professional Credit Service (PCS) while driving and confirmed the cell phone was the best contact phone number. Plaintiff allowed her boyfriend to use this cell phone, including reviewing messages. PCS left a message on this cell phone after Plaintiff’s outgoing message invited messages for Plaintiff. Plaintiff’s boyfriend heard the message, which embarrassed Plaintiff. On another occasion, PCS left another message. Plaintiff played the message on speaker phone in her work break room, which was overheard by her employer. Plaintiff’s outgoing message stated:
“Hi, this is Katie and I have an important message from Professional Credit Service. This call is from a debt collector. Please call … .”
Plaintiff sued alleging third party disclosures in violation of section 1692c(b). PCS argued that the messages were not communications with the third parties – especially since the disclosure was not foreseeable. The Court explained that “Congress intended the FDCPA to cause debt collectors to be very careful in the way they communicate with consumers, but it did not intend the statute to completely shut down all avenues of communication and force debt collectors to file a lawsuit in order to recover the amount owed.” The Court recognized that a true strict liability standard, rather than one based on foreseeability, “would invite abuse: upon answering a phone call from a debt collector in a crowded restaurant, the recipient could expose the collector to liability for a hundred unauthorized communications with third parties simply by placing the call on speakerphone.” The Court held that “a negligence standard strikes the right balance because it holds debt collectors liable for failure to take reasonable measures to avoid disclosure to third parties, but does not require them to avoid such disclosure at all costs.” (Peak, supra, 2015 WL 7862774, at *5.)
The Federal Trade Commission (“FTC”) also supports a reasonable foreseeability standard. The FTC commentary recommends liability for a message that is “easily accessible to third parties,” but not if an eavesdropper unexpectedly overhears a collection conversation.” (FTC, Statements of General Policy or Interpretation Staff Commentary on the FDCPA, 53 Fed. Reg. 50097, 50104 (Dec. 13, 1988).)
In this case, the disclosures were not reasonably foreseeable. Plaintiff’s outgoing message invited messages for only one person, Plaintiff. Plaintiff had identified the phone number as the best place to reach Plaintiff and had not requested no messages. And finally, Plaintiff’s phone was a cell phone, as she was driving during one of the calls.
“The cell phone/land line distinction is important because a caller may reasonably assume messages left on a cell phone’s voicemail system will not be accidentally overheard, as they must be accessed through the cell phone itself. By contrast, if any person is in the vicinity of a land line answering machine, that person may overhear a message as it is being left.”
(Peak, supra, 2015 WL 7862774, at *6.)
Hopefully, courts will continue issuing pragmatic rulings to address unreasonable claims by plaintiffs.