In Daubert v. NRA Group., LLC, 2017 WL 2836808, at *4–5 (C.A.3 (Pa.), 2017), the Court of Appeals for the Third Circuit found that a medical debt servicer did not meet its burden of demonstrating that it or its assignor received consent.
The Sixth Circuit found prior express consent where the plaintiffs gave their cell numbers to a hospital-intermediary in signing admittance forms. Baisden, 813 F.3d at 340–41. Those forms said, for instance, “I understand” the hospital “may use my health information” for “billing and payment,” id. at 340 (emphasis removed), and may “release my health information” to “companies who provide billing services” (i.e., creditors), id. at 341 (emphasis removed). Similarly the Eleventh Circuit found prior express consent where the plaintiff’s wife gave her husband’s cell number to a hospital-intermediary in signing admittance forms on his behalf. Mais, 768 F.3d at 1113–14. Those forms gave the hospital permission to, for example, “release” his “healthcare information” for the purpose of “payment,” id., to “use and disclose” his “health information” to “bill [him] and collect payment,” and to “disclose” his “health information” to its “business associate[s]” (i.e., creditors) so they could “bill” him, id. at 1114. Daubert, of course, could’ve indicated on his Hospital intake form (assuming one exists) that he consented to have his number transferred to Radiology Associates for billing or other purposes. But no evidence of such prior express consent exists in the record. By pointing that out, we hold, Daubert carried his burden as the movant to show the absence of a genuine, material factual dispute on NRA’s prior express consent defense. See Celotex, 477 U.S. at 323. The burden thus shifted to NRA as the nonmovant to “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (emphasis added; internal quotation marks omitted); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). So NRA is incorrect that the District Court “flipped” the summary-judgment standard. NRA Br. 18. It didn’t. Rule 56 did. And under that rule NRA had to do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. It was “put up or shut up time” for NRA as the nonmovant. Berckeley Inv. Grp. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). NRA managed to show only that Daubert maybe provided his cell number to the Hospital, an intermediary associated with Radiology Associates. In light of Baisden, Mais, and the FCC’s rulings, we don’t think that’s enough. The court rightly held that no reasonable jury could find that Daubert expressly consented to receive calls about his bill from NRA.
The Court of Appeals also found that the debt collector could not rely on the bona fide error doctrine to avoid a “glassine-window” violation because the error made by the debt collector was an error of law.
We’ve held that a debt collector violates § 1692f(8) by sending a collection letter in an envelope that displays the debtor’s bare account number. Douglass, 765 F.3d at 303. This practice “implicates a core concern animating the FDCPA” — the “invasion of privacy” — because an account number is a “core piece of information” pertaining to the debtor’s “status as a debtor.” Id. But we left open whether a debt collector violates § 1692f(8) by displaying a barcode (in Douglass, a QR code) on an envelope that, when scanned, reveals the debtor’s account number. Id. at 301 n.4. The District Court here answered that open question. It held that NRA’s use of a barcode on Daubert’s envelope violated § 1692f(8), even if the bare account number itself had not been visible. NRA doesn’t challenge that conclusion on appeal, so we don’t opine on it. Rather, we focus on the defense NRA invoked to avoid liability for the FDCPA violation the District Court found. That defense is called the bona fide error defense. It says a debt collector can escape liability under the FDCPA by proving that its statutory violation was “not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. § 1692k(c). But the defense doesn’t apply if the violation resulted “from a debt collector’s mistaken interpretation of the legal requirements of the FDCPA.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577 (2010). In other words, a mistake of law isn’t a bona fide error. The District Court here said Jerman doesn’t apply. When NRA used the (assumedly) offending barcode, the court reasoned, it did so in good-faith reliance on two federal district court decisions holding that barcodes don’t violate § 1692f(8): Waldron v. Professional Medical Management, 2013 WL 978933, at *3 (E.D. Pa. Mar. 13, 2013), and the district court’s decision in Douglass, 963 F. Supp. 2d 440, 446–47 (E.D. Pa. 2013), vacated on other grounds, 765 F.3d 299. The Douglass district court had further held that even a visible account number doesn’t violate § 1692f(8). 963 F. Supp. 2d at 446. So, the District Court held, NRA’s violation was an unintentional, bona fide error. We don’t think it was. . . . NRA’s (assumedly) mistaken interpretation of the law is inexcusable under the FDCPA’s bona fide error defense irrespective of how many district court decisions supported it at the time. The District Court’s unchallenged finding that NRA violated the FDCPA stands accordingly. We’ll reverse judgment as a matter of law for NRA on Daubert’s FDCPA claim and remand with instructions to enter judgment for Daubert and to calculate damages under 15 U.S.C. § 1692k(a). The court “shall” weigh the factors in subsection (b)(1) in so doing, including the “frequency and persistence of [NRA’s] noncompliance,” the “nature of such noncompliance,” and the “extent to which such noncompliance was intentional.” Id. § 1692k(b)(1).