A state law in Massachusetts which limits how often individuals can be contacted related to unpaid debts applies to creditors, which had been previously exempt from the law, according to the state’s Supreme Judicial Court, which ruled on a case yesterday.
An individual had sued Target Corp., after the company allegedly attempted to contact her six times in a seven-day period. State law in Massachusetts limits the number of communications to two attempts in a seven-day period, but creditors were exempt from the law, according to guidance that had been published by the state’s Attorney General. That guidance no longer applies.
Target had argued that not only was it exempt from the law, it argued that it never “initiated” a conversation with the plaintiff because it used an automated telephone dialing system that either connected the individual to a live agent or played a pre-recorded message only when the phone call is answered, and that none of the calls constituted communications because no voicemail was left when the call was not answered.
A copy of the ruling in the case of Armata v. Target Corp. can be accessed by clicking here. Target had been granted a summary judgment in the case, which was overturned by yesterday’s ruling and the case has been remanded back to the lower court and a summary judgment ruling in favor of the plaintiff has been ordered.
Target did not leave voicemail messages for the plaintiff because its company policy was not to do so, according to the court’s ruling.
The state statute says that companies are barred from “initiating” more than two communications with an individual during a seven-day period. Initiating, the Supreme Judicial Court rules, does not mean that a creditor needs to be successful in reaching a debtor for the statute to apply. By using a predictive dialer, Target argued it was exempt from the law because it never initiated a conversation.
Target’s reading would create a loophole so large as to swallow the rule, such that nearly every creditor would be able to evade the limits imposed by the regulation simply by changing its dialing technology. The potential for harassment stems in large part from the volume of initiated communications; it makes no difference what technology a creditor uses to dial the debtor’s telephone or at what point a prerecorded message begins playing.
Just because the defendant opted not to leave a voicemail when it could have done so is not enough to be considered a sufficient defense, the court ruled.
The fact that Target did not successfully directly convey information to Armata is unimportant, because Target nevertheless initiated the process of conveying information to Armata via telephone. Target is again overlooking the purpose of the regulation. A creditor can “harass, oppress, or abuse” a debtor with its telephone practices by calling incessantly, even if it does not leave voicemail messages notwithstanding being able to do so.
Target also attempted to argue that it could not leave a voicemail message without possibly risking a violation of the Fair Debt Collection Practices Act, but, as with all of its other arguments, this one, too, was unpersuasive.
We do not interpret the regulatory scheme as prohibiting Target from leaving a voicemail message that simply states the caller’s name, that the call was on behalf of Target, and that the recipient should return the call, so long as the message does not mention or in any way imply that the call concerns the collection of a debt.
