A petition has been filed with the Supreme Court to hear arguments in a Fair Debt Collection Practices Act case over whether the receipt of a letter is enough for an individual to have suffered a concrete injury and thus have standing to sue.
The case, Six v. IQ Data International, Inc., stems from a dispute where the plaintiff received a validation letter from the defendant after the plaintiff had informed the agency that he was represented by counsel. The communication, though technically in violation of Section 1692c(a)(2) of the FDCPA, was sent before the agency processed the attorney representation notice. The District Court dismissed the lawsuit, finding the plaintiff failed to allege a concrete injury sufficient to establish Article III standing. However, the Ninth Circuit reversed, holding that receiving the letter was enough to establish standing by analogizing it to the tort of intrusion upon seclusion (invasion of privacy).
The plaintiff had disputed a debt through a credit bureau and, on the same day, his attorney separately informed the collection agency of representation. The collection operation responded first to the dispute and mailed a letter containing debt validation information. The plaintiff claimed the letter violated the FDCPA’s prohibition on contacting consumers known to be represented by counsel and sued for privacy harms. The District Court sided with the defendant, finding the mailing of one letter, particularly one the consumer requested from another party, did not rise to the level of a concrete injury. “It is difficult to see how a letter delivered to a mailbox, unbeknownst to [the plaintiff], and to be retrieved at his leisure… results in a harm similar in kind to the irritating intrusion… caused by phone calls and text messages,” the District Court observed in its dismissal.
On appeal, though, the Ninth Circuit disagreed and ruled that the receipt of the letter could be viewed as an intrusion upon seclusion, a historically recognized tort that supports standing. The panel stated there was “no meaningful difference” between a phone call and a letter in this context.
IQ Data, represented by Brownstein Hyatt Farber Schreck, petitioned the Supreme Court last week, arguing that the Ninth Circuit’s decision conflicts with rulings from the Fifth and Seventh Circuits. In Pucillo v. National Credit Systems, for example, the Seventh Circuit found that the receipt of two unwanted letters was not sufficiently offensive to qualify as an actionable intrusion. The Fifth Circuit reached a similar conclusion in Perez v. McCreary, Veselka, Bragg & Allen.
In its petition, IQ Data warned that the Ninth Circuit’s ruling creates a split that could result in differing interpretations of the FDCPA based solely on geography, undermining Congress’s intent for uniformity. It also emphasized that intrusion upon seclusion requires conduct that is “highly offensive to a reasonable person,” which it argues a single mailed letter is not.
