STEVER v. HARRISON

Filing 56

OPINION. Signed by Chief Judge Jose L. Linares on 07/05/2017. (ek)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY

TAYLOR STEVER, et al
Civil Action No. 16-298 (JLL)
Plaintiffs,
v.

OPINION

MICHAEL S. HARRISON, et al,
Defendants.

LINARES, Chief District Judge.

This matter comes before the Court by way of a motion to dismiss this action, which motion
was filed by Defendants Michael S. Harrison and Michael S. Harrison LLC (collectively,
“Defendants”). (ECF No. 4$). Plaintiffs Rijalda Djakovac, Julio Canales, and Tracy A. Staniland
(collectively, “Plaintiffs”), on behalf of a putative class, have opposed Defendants’ motion (ECF
No. 53). and Defendants have replied to that opposition (ECF No.

54).1

The Court decides this

matter without oral argument pursuant to Federal Rule of Civil Procedure 7$. For the reasons
stated herein, the Court denies Defendants’ motion to dismiss the Consolidated Class Action
Complaint. (ECF No. 32, “Am. Compi.”).
I.

Background

Plaintiffs are New Jersey residents who bring this putativblass action lawsuit asserting a
claim under the Fair Debt Collection Practices Act, 15 U.S.C.

§ 1692(a), etseq. (“FDCPA”). (Am.

Plaintiffs Taylor Stever and Alejandra Trombley have settled their claims on an individual basis. (ECF No. 48-1, n.
1).

1

Compi.

¶

10). Defendant Michael S. Harrison, LLC is a debt collection law firm located in New

Jersey, and Defendant Michael S. Harrison is a debt collection attorney. (Id.

¶

10-1 1).

According to Plaintiffs, they, along with all those in the putative class, received debt
collection letters from Defendants. Plaintiffs allege that Defendants sent the collection letters in
envelopes containing a glassine window. (Id.

¶J 26-30).

Plaintiffs further allege that “[b]eing sent

in window envelopes, the barcode immediately below the return address was visible through the

window of the envelopes.” (Id.

¶

33). According to Plaintiffs, “when read or scanned,” this

barcode “results in a display of a string of numbers, such as the account number of the alleged
debts Defendants assigned to Plaintiffs and/or a reference or registration code number.” (Id.

¶ 34).

Plaintiffs further allege that any person with a free smartphone scanner application could easily
discover the information contained within the barcode. (Id.

¶ 36).

Plaintiffs allege that “[t]he account, reference or registration numbers exposed constitute
personal identifying information and its disclosure has the potential to cause harm to the
consumer.” (Id.

¶ 38).

Accordingly, Plaintiffs assert a claim against Defendants for violation of

Section 1692f($) of the FDCPA. (Id.
“[ujsing

¶J

41-43). In pertinent part, Section 1692f(8) prohibits:

any langitage or symbol, other than the debt collector’s address, on any envelope when

communicating

with a consumer by

use of

the mails

or

by telegram

“

15 U.S.C.

§

l692f($)

(emphasis added).
Defendants filed the pending motion to dismiss Plaintiffs’ Consolidated Class Action
Complaint on April 21, 2017. (ECF No. 48). Specifically, Defendants argue that Plaintiffs lack
standing to bring this lawsuit in the first instance, and that in any

event,

Plaintiffs have failed to

state a claim under the FDCPA. Plaintiffs opposed Defendants’ motion on June 5, 2017 (ECF No.

2

53), and Defendants replied to that opposition on June 12, 2017 (ECF No.

54)•2

This matter is

now ripe for the Court’s adjudication.
II.

Legal Standards
A. Federal Rule of Civil Procedure 12(b)(1): Standing

Defendants seek to dismiss Plaintiffs’ Complaint for lack of standing under Federal Rule
of Civil Procedure 12(b)(6). (Defs.’ Mov. Br. at i). Ordinarily, however, Rule 12(b)(1)—as
opposed to Rule l2(b)(6)—governs motions to dismiss for lack of standing, as standing is a
jurisdictional matter.” N. Jersey Brain & Spine Ctr. e. Aetna, Inc., 801 F.3d 369, n.3 (3d Cir.
2015); see also Battentine v. United States, 486 F.3d 806, $10 (3d Cir.2007) (“Federal Rule of
Civil Procedure 12(b)(1) provides that a party may bring a motion to dismiss for lack of subject
matter jurisdiction.”). The Court will therefore construe Defendants’ motion as having been
brought under Rule 12(b)(1).
“In essence the question of standing is whether the litigant is entitled to have the court
decide the merits of the dispute or of particular issues.” Storino v. Borottgh of Point Pleasant
Beach, 322 F.3d 293, 296 (3d Cir.2003) (quoting Wctrth v. Setdin, 422 U.S. 490, 49$ (1975)). “It
is axiomatic that, in addition to those requirements imposed by statute, plaintiffs must also satisfy
Article III of the Constitution.” Horvath v. Keystone Health Plan East, Inc., 333 f.3d 450, 455
(3d Cir.2003) (citation omitted). As the Third Circuit has articulated, the requirements of Article
III standing are as follows:
(1) the plaintiff must have suffered an injury in fact—an invasion of a legally
protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) there must be a causal connection
between the injury and the conduct complained of—the injury has to be fairly
traceable to the challenged action of the defendant and not the result of the
On June 19, 2017, Defendants also filed, as a “notice of supplemental authority,” a June 13, 2017 opinion issued by
Jtidge William J. Maritini which Defendants believe augment their argument that Plaintiffs do not have standing to
bring this action. (ECF No. 55). The Court has considered that filing and the attached opinion of Judge Martini.

2

3

independent action of some third party not before the court; and (3) it must be likely,
as opposed to merely speculative, that the injury will be redressed by a favorable
decision.
Taliaferro v. Darby Twp. Zoning 3d., 45$ F.3d 181, 188 (3d Cir.2006).

On a motion to dismiss for lack of standing, the plaintiff “bears the burden of establishing’
the elements of standing, and ‘each element must be supported in the same way as any other matter
on which the plaintiff bears the burden of proof, i.e., with the maimer and degree of evidence
required at the successive stages of the litigation.” FOCUS v. Allegheny Cniy. Ct. Corn. Fl., 75
F.3d 834, 838 (3d Cir. 1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
“For the purpose of determining standing, [the court] must accept as true all material allegations
set forth in the complaint, and must construe those facts in favor of the complaining party.”
Storino, 322 F.3d at 296 (citing Wart/i, 422 U.S. at 501).
B. Federal Rule of Civil Procedure 12(b)(6)

To withstand a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 67$ (2009) (quoting Bell Atl. Corp.

V.

Twornbty, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 67$. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id.
“In deciding a Rule 1 2(b)(6) motion, a court must consider only the complaint, exhibits
attached to the complaint, matters of the public record, as well as undisputedly authentic
documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605

4

F.3d 223,230 (3d Cir. 2010); In re Burlington Coat Factoiy &c LItig., 114 F.3d 1410, 1426 (3d
Cir. 1997) (noting that although, generally, a district court niling on motion to dismiss may not

consider matters extraneous to pleadings, a “document integral to or explicitly relied upon in the
complaint may be considered without converting a motion to dismiss into one far summary
judgment’ (citation omitted).
a

Discussion
A. Plaintiffs have Sufficiently Alleged an Injury In Fact
Defendants argue that Plaintiffs lack standing to bring the instant lawsuit (Defa.’ Mov.

Br. at 3-8). In particiilar Defendants contend that Plaintiffs have not met the injury-in-fact
requirement of stsnding—”the ‘[first and fbremost’ of standing’s three elements.” Spokeo, Inc.
v. Robins, 1365. CL 1540(2016) (quoting Steel Co. v. Citizensfor Better Environment, 523 U.s.
83, 103 (1998)).

An injury in fact must be both concrete and particularized. Lufan, 504 U.S. at 560. Here
Defendants argue that ‘Plaintiffs have not been harmed in any concrete or particularized way and

their allegations that the bar code contained ‘personal identifying infonnation’ does not meet the
burden to confer Article III standing.” (I)e&’ Mov. Br. at 8). In other words, Defendants contend
that Plaintiffs have alleged nothing more than a procedural violation ofthe FDCPA, which, in the

absence ofa concrete and particularized harm, does not rise to an injury in fact sufficient to confer
standing. (Iiat6)
In support of their arguments, Defendants principally rely on the recent Sbpreme Court

case of Spokeo, Ina v. Robins, 136 S. Ct. 1540(2016). In Spokeo, the Supreme Court considered
the Ninth Circuit’s riling that a plaintiff asserting a claim under the Fair Credit Reporting Act
‘FCRA’ had standing to sue. There the plaintiff alleged that the defendant had violated the

5

FCRA by gathering and disseminating incorrect information about the plaintiff. Id. at 1544. The
Ninth Circuit held that the plaintiff had satisfied the injury-in-fact requirement of standing by
alleging that defendant had “violated his statutory rights” and where plaintiffs “personal interests
in the handling of his credit information are individualized rather than collective.” Id. at 1546.
The Ninth Circuit reasoned that “the violation of a statutory right is usually a sufficient injury in
fact to confer standing.” Id.
The Supreme Court vacated the Ninth Circuit’s order and remanded with instructions that
the Circuit consider both prongs of the injury in fact inquiry—that is, whether the plaintiff suffered
an injury that was both concrete and particularized. Id. at 1545, 1550. The Supreme Court then
addressed, in some detail, the injury-in-fact requirement in the context of a claim of a statutory
violation. Id. at 1548-1550.
At the outset, the Supreme Court noted that “[i]njury in fact is a constitutional requirement,
and ‘[i]t is settled that Congress cannot erase Article III’s standing requirements by statutorily
granting the right to sue to a plaintiff who would not otherwise have standing.” Spokeo, 136 S.
Ct. at 1547-48 (quoting Raines v. Byrd, 521 U.S. $11, 820, n.3 (1997)). That is, even in the case
of an alleged statutory violation, a plaintiff must sufficiently plead that he suffered an injury that
was both concrete and particularized. Id. at 1548.
The $pokeo Court explained that a “concrete” injury need not necessarily be a “tangible”
injury. Id. at 1549. For example, the Court noted that it had found standing in cases involving
harm to one’s First Amendment rights. Id. Further, the Court reiterated the principal espoused in
LzUan v. Defenders of Witdlfe that “Congress may ‘elevat[e] to the status of legally cognizable

injuries concrete, defacto injuries that were previously inadequate at law.” Id. (quoting LiUcin,
504 U.S. at 578). The Court cautioned, however, that because “Article III standing requires a

6

concrete injury even in the context of a statutory violation

...

[a plaintiffi could not, for example,

allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact
requirement of Article III.” Id. At the same time, however, the Supreme Court explained, “the
violation of a procedural right granted by statute can be sufficient in some circumstances to
constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional
harm beyond the one Congress has identified.” Id. at 1544, 1549.
Here, the principal question presented by Defendants’ standing argument is whether the
mailing of debt collection letters containing a barcode that could lead to the disclosure of personal
identifying numbers have caused Plaintiffs to suffer a “concrete” harm. The Court finds that such
allegations satisfy the concrete requirement of the injury in fact analysis.
The Third Circuit has not yet spoken directly on an FDCPA plaintiffs’ ability to plead an
injury in fact afier Spokeo. See fuentes v. AR Resources, Inc., 2017 WL 1197814, *4 (Wolfson,
J.) (Mar. 31, 20l7). However, the Circuit recently had occasion to consider the implications of
Spokeo on the standing analysis in the context of a claimed violation of the Fair Credit Reporting
Act (“FCRA”) in In Re: Horizon Healthcare Services, Inc. Data Breach Litig., $46 F.3d 625 (3d

And, while the Court notes that numerous cases in this district have analyzed the issue of Article III standing in
fDCPA cases after $pokeo, these cases generally concern allegations of false or misleading statements in debt
collection letters (15 U.S.C. § 1692e) or unfair or unconscionable means in collecting a debt (15 U.S.C. § 1692f
generally). See e.g., fttentes v. AR Resources, Inc., 2017 WI 1197814, *4 (Mar. 31, 2017) (collecting cases); see also
Re: Lopez v. Law Offices of faloni & Assoc., LLC ci a!., 16-cv-Ol 117, 2017 WL 2399083, *2 (Wigenton, J.) (June
22, 2017) (noting that cases in this district have recognized standing in cases asserting violations of 1692e); 3ockv
Press/er & Presslei LLP, 11-cv-7593, --F. Supp. 3d
2017 WL 2304643 (D.N.J. May 25, 2017) (“[W]ith respect
to violations of section 1692e, decisions in this district ‘trend in favor of finding concrete injury under the FDCPA
where the amount or validity of the debt has been misstated.”) (quoting Thomas Youderian, 16-cv-1408, --F. Sup.
3d—, 2017 WL 1250988, *7 (D.N.J. Feb. 3, 2017)). The Court is not aware of any case in this district analyzing
standing under a claim brought pursuant to 15 U.S.C. § 1692f(8), in particular. That is, the Court is not aware of any
cases within this district analyzing FDCPA standing respecting a privacy-based, as opposed to information-based
injury. It is worth noting, however, that this Court’s conclusion that Plaintiffs have sufficiently alleged Article III
standing is consistent with “the overwhelming majority of courts’ that have determined that FDCPA violations under
§ 1692e and 1692f give rise to concrete, substantive injuries sufficient to establish Article III standing.” Bock, 2017
WL 2304643.
--,

7

Cir. 2017). The Court finds the Circuit Court’s analysis in Horizon highly instructive as to the
instant matter.
In Horizon, plaintiffs alleged that “laptops[] containing sensitive personal information
were stolen from health insurer Horizon.” Id. at 629.

On this basis, Plaintiffs claimed that

defendant Horizon violated the FCRA by failing to protect the plaintiffs’ personal information. Id.
The Third Circuit summarized the $pokeo decision’s analysis of the “concrete” requirement as
follows:
There are thus two tests for whether an intangible injury can (despite the obvious
linguistic contradiction) be “concrete.” The first test, the one of history, asks
whether “an alleged intangible harm” is closely related “to a harm that has
traditionally been regarded as providing a basis for a lawsuit in English or American
Courts.” [Spokeo, 136 S. Ct. at 1545]. If so, it is likely to be sufficient to satisfy
the injury-in-fact element of standing. Id. But even if an injury was “previously
inadequate in law,” Congress may elevate it “to the status of[a] legally cognizable
injur[y].” Id. (quoting Lijan, 504 U.S. at 578, 112 S.Ct. 2130). Because
“Congress is well positioned to identify intangible harms that meet minimum
Article III requirements, its judgment is
instructive and important.” Id. The
second test therefore asks whether Congress has expressed an intent to make an
injury redressable.
.

.

.

Id. at 63$.

Upon consideration, the Third Circuit vacated the District Court’s ruling that plaintiffs
failed to plead a cognizable injury. In so ruling, the Circuit was guided by two earlier cases
implicating Congressionally-recognized privacy concerns. Id. at 636 (citing In re Nickelodeon
Consumer Privacy Litig., 827 F.3d 262 (3d Cir. 2016) and In re Google Inc. Cookie Placement
Consumer Privacy Litig., $06 F.3d 125 (3d Cir. 2015)). In both Nickelodeon and Google, the

Circuit Court held that plaintiffs suing under various state and federal privacy statutes (including
the Stored Communications Act and the Federal Wiretap Act) successfully asserted a concrete
injury in fact based upon privacy violations. In Nickelodeon, the Circuit explained that “the
unlawful disclosure of legally protected information” constituted “a clear de facto injury.”
8

Nickelodeon, 827 F.3d at 274. The Court further recognized that “Congress has long provided
plaintiffs with the right to seek redress for unauthorized disclosures of information that, in
Congress’s judgment, ought to remain private.” Id.
After considering Nickelodeon and Google, the Circuit then refuted the defendant’s
argument that Spokeo compelled a different analysis in Horizon. Id. at 636-37. First, the Court
recognized the common law’s interest in protecting an individual’s private information. Id. at 63$.
The Court also noted that “with the passage of the FCRA, Congress established that the
unauthorized dissemination of personal information by a credit reporting agency causes an injury
in and of itself—whether or not the disclosure of that information increased the risk of identity
theft or some other future harm.” Id. at 639. The Circuit Court further noted that the FCRA’s
provision permitting a private right of action “clearly illustrates that Congress believed that the
violation of FCRA causes a concrete harm to consumers.” Id. at 639. Ultimately, the Circuit Court
explained that “since the ‘intangible hann’ that FCRA seeks to remedy ‘has a close relationship to
a harm [i.e., invasion of privacy] that has traditionally been regarded as providing a basis for a
lawsuit in English or American courts,’ Spokeo, 136 S. Ct. at 1549, we have no trouble concluding
that Congress properly defined an injury that ‘give[s] rise to a case or controversy where none
existed before.” Id.
This Court finds that, notwithstanding Spokeo, Third Circuit precedent supports a finding
that Plaintiffs in this case have sufficiently alleged a concrete injury that supports Article III
standing. Plaintiffs here assert a violation of the FDCPA. The purpose of the FDCPA was to
“eliminate abusive debt collection practices by debt collectors.” 15 U.S.C.

§

1692(e). In enacting

the FDCPA, Congress recognized that such abusive practices “lead to personal bankruptcies,

9

marital instability, the loss ofjobs, and, relevant to our analysis, ‘invasions of individual privacy.”

Douglass, 765 F. 3d at 302-303 (quoting 15 U.S.C.

§ 1692(a)).

It is Congress’s concern of “invasions of individual privacy” which underlie Plaintiffs’
theory of concrete hanm Notably, the Third Circuit has recognized those privacy interests as an
individual’s “status as a debtor” and the plaintiff’s “financial predicament.” Id. at 303-04.
In order to combat problematic debt collection practices, the FDCPA prohibits a debt
collector from using any “unfair or unconscionable means to collect or attempt to collect any debt.”
Id. Among other conduct, a debt collector is prohibited from “using any language or symbol, other
than the debt collector’s address, on any envelope when communicating with a consumer by use
of the mails.

.

.

.“

Id. at

§ 1692f($). As the Third Circuit has noted, the disclosure of any language

or symbol—even the disclosure of a debtor’s account nurnber—”irnplicates core privacy
concerns.” Douglass, 765 F.3d at 304.
Therefore, this case, like Google, Nickelodeon, and Horizon before it, implicates individual
privacy concerns on which Congress has spoken.4 Here, the harm that Plaintiffs allege—that is,
the disclosure of barcodes that could be linked to identification numbers—is “the very injury that
the [FDCPA] is intended to prevent.” Horizon, $46 F.3d at 640.

Defendants’ reliance on Kamal v. I Crew Gip., Inc., 15-cv-01 90. 2016 WI 6133827 (D.N.J. Oct. 20, 2016) (Martini,
J.) is misplaced. In Kanmi, the District Court held that a plaintiff had not alleged an injury in fact under the Fair and
Accurate Credit Transaction Act (“FACTA”) by alleging that a retailer printed “more than the last five digits of a
credit card number on a sales receipt” in violation of FACTA. In holding that plaintiff did not allege a concrete injury,
the District Court specifically distinguished FACTA from legislation intended to protect privacy interests. Id. at * 2.
That is, the District Court noted that “[t]he purpose of credit card truncation [as required by FACIAl is to limit
incremental risk of fraud or identity theft, not safeguard one’s freedom from ‘injurious disclosure[] as to private
matters’ or ‘intrusions upon the domestic circle’ or some other traditional privacy interest.” Id. In fact, the District
Court distinguished the case before it from the Third Circuit’s Nickelodeon decision, discussed above, where the Third
Circuit found that plaintiff had standing based upon allegations of a violation of the plaintiffs privacy interest. Id.
(citing Nickelodeon, 827 F.3d at 295). As discussed above, this case, like Nickelodeon, involves allegations of harm
or the threat of harm in the form of a privacy violation that Congress saw fit to elevate to a statutory cause of action.
While Douglctss did not involve an analysis of standing, the Court nevertheless finds the discussion of the FDCPA
to be helpful in this matter. lnDottglass, the Third Circuit explained that “the disclosure of Douglass’ account number
privacy concerns. The account number is a core piece of information pertaining to Douglass’ status as a
raises
debtor and Convergent’s debt collection effort. Disclosed to the public, it could be used to expose her financial
.

.

.

10

The Court is not persuaded otherwise by the fact that Plaintiffs have not alleged that any
individual actually scanned the barcodes. (See Defs.’ Mov. Br. at 7-8). That is, Article III standing
may exist on either an “actual or threated injury.” Wart/i, 422 U.S. at 500; Horizon, $46 F.3d at
635. Here, as discussed below, the disclosure of the barcodes is enough because “the particular
procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness
requirement.” Spokeo, 136 S. Ct. at 1550. That is, in enacting the FDCPA, Congress granted
every individual the right to have his or her status as a debtor concealed from the public. To the
extent Plaintiffs can successfully argue that the existence of the barcode threatened that right,
Plaintiffs have sufficiently stated a concrete injury.

fuentes, 2017 WL 1197814, *5; see also

Thomas, 2017 WL 1250988, *9 (McNulty, J.) (holding that a plaintiff in an FDCPA case alleging
false or misleading statements has standing where “[d]eprivation of the right to be free of false or
deceptive debt collection information, with the attendant risk of economic injury, is an interest
recognized by the stattite, and one reasonably rooted in the traditions of the common law”).
Additionally, the Court finds that Plaintiffs have alleged a sufficiently “particularized”
injury. That is, the letters containing the allegedly prohibited barcode “was directed at and sent to
Plaintifffs].” fuentes, 2017 WL 1197814 at *5•
In summary, the Court finds that Plaintiffs have alleged a ham-i that is both concrete and
particularized.
B. Plaintiffs Have Sufficiently Alleged a Violation of 15 U.S.C.

§

1692f(8)

As a second basis for dismissal. Defendants argue that Plaintiffs have failed to state a claim
under the fDCPA because the suspect barcode is a “benign” symbol that should fall within a

predicament.” 765 F.3d at 303. Ultimately, the Circuit held that the disclosure of an account number “has the potential
to cause harm to a consumer that the FDCPA was enacted to address.” Id. at 306.
11

“benign language exception” to Section 1692f(8)’s prohibition against “any language or symbol,
other than the debt collector’s address” appearing on an envelope. (Defs.’ Mov. Br. at 9-20).
The Third Circuit has yet to consider whether a benign language exception exists in this
district. See Douglass, 765 F.3d at 303. In particular, in Douglass, the Circuit Court declined to
consider the benign language exception because it found that the disclosure of the debtor’s account
numbers were not “benign” in the first instance. See id. Similarly, because this Court finds that
the disclosure of the barcode is not “benign” under the FDCPA, this Court finds that even if the

benign language exception had been expressly adopted in this Circuit, the suspect barcode would
not fall within that exception because the barcode at issue is not “benign.” See id, see also Park
v. ARS National Servs., Inc., 2015 WL 6579686 (D.N.J. Oct. 30, 2015) (Wigenton, J.) (“However,
as in Douglass, this Court need not reach the question of whether a benign symbols exception
exists because the symbol at issue, the barcode, is not benign.”).
At the outset, the Court finds that Plaintiffs have sufficiently alleged a violation of Section
1692f(8) of the FDCPA. In pertinent part, that Section prohibits the use of “any language or
symbol, other than the debt collector’s address, on any envelope when communicating with a
consumer by use of the mails.

.

.

.“

Id. The barcode visible through the glassine window is clearly

a “symbol” on the envelope used to communicate with the Plaintiff debtors. Defendants do not
argue otherwise. Thus, under a plain reading of the statute, Plaintiffs have sufficiently alleged a
violation. Because the statute’s language is plain, the Court’s function is “to enforce it according
to its tenus,” so long as “the disposition required by the [text] is not absurd.” Aiston v.
Countrywide fin. Corp., 585 F.3d 753, 759 (3d Cir. 2009) (quoting Lamie v. U.S. Tr., 540 U.S.

526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004)).

12

Defendants

maintain

that enforcing the FDCPA in this case would amount to an absurd

result. Specifically, Defendants argue that “[wjithout the benefit of a barcode scanner, the barcode
cannot convey any information; it is simply meaningless black and white markings. Furthermore,
the appearance of a barcode on the exterior of the plain white envelope does not suggest anything
about the source or purpose of the enclosed letter.” (Defs.’ Mov. Br. at 15-16). Defendants also
note that in order for a third party to scan the barcode, that third party would necessarily violate
federal law by tampering with another’s mail.
Notwithstanding Defendants’ arguments, the disposition required by a straightforward
application of the plain language of the statute is not absurd because it is consistent with the Third
Circuit’s decision in

Douglass.5

In Douglass, the Third Circuit analyzed whether an internal

account number and scanable quick response (“QR”) code printed on the outside of an envelope
violated the FDCPA. 765 F.3d at 302. The Circuit determined that it did violate the FDCPA
because the account number was “a piece of information capable of identifying [the plaintiffi as a
debtor” and “its disclosure has the potential to cause harm to a consumer that the FDCPA was

This Court rejects Defendants’ argument that “the imposition of liability under the FDCPA [in this case would be]
inappropriate” because “[t]he only way to view the information stored in the barcode at issue requires illegal action
by a third party.” (Defs.’ Mov. Br. at 16). In Park v. ARS Ncttional Services, Inc., another District Court in this District
considered the same argument in a factually identical case and found the argument “unpersuasive.” 2015 WL 6579686
at * 5. Specifically, the Court explained that
Neither the text nor the underlying purposes of the FDCPA provide any basis for such an exception.
See 15 U.S.C. § 1692f. The FDCPA’s broad language focuses on debt collectors’ actions that could
Section 1692(b) also shows
harm consumers and on protecting consumers’ personal information
collector behavior through the fDCPA despite the
Congress’ intent to broadly regulate debt
existence of related laws: “[e]xisting laws and procedures for redressing [injuries to consumers from
abusive debt collection practices] are inadequate to protect consumers.” This purpose of the FDCPA
is further supported by the Third Circuit’s focus in Dottglass on the potential harm the debt
collector’s public disclosure of the plaintiff’s account number could cause (i.e., an invasion of the
plaintiffs privacy) rather than on whether a third party would violate the law in accessing or using
that information.
Id. Therefore, the District Court in Park determined that “the remedial purposes and broad language of the FDCPA
do not provide for exceptions to its prohibitions based on legislation that may forbid related behavior by third parties.”
This Court agrees with and adopts the Pa,’k Court’s analysis.

13

enacted to address.” Id. at 306. Stated differently, the Third Circuit found a violation where the
envelope included “information pertaining to [the plaintiffs] status as a debtor and [the
defendant]’s debt collection effort.

Disclosed to the public, it could be used to expose [the

debtor’s] financial predicament.” Id. at 303. Thus, in Douglass the Third Circuit focused on the
privacy concerns underlying Congress’s purpose in passing the FDCPA. See Id. at 303—04; see
also 15 U.S.C.

§ 1692(a), (e) (stating the purpose of the FDCPA is to “eliminate abusive debt

collection practices” which contribute to “invasions of individual privacy”).
As the Court in Douglass noted, “[t]hough several courts, including the Courts of Appeals
for the Fifth and Eighth Circuits, have interpreted

§ 1 692f(8) to permit an exception for certain

benign or innocuous markings, they did so in the context of envelope markings that did not have
the potential to cause invasions of privacy.” Id. at 304 (emphasis added). Because the account
number at issue in Douglass had the potential to identify the debtor and her debt, the Third Circuit
declined to considei- whether

§ 1 692f(8) contains a benign language exception, on grounds that

disclosure of an account number cannot be considered benign. Id. at 303. In distinguishing itself
from the Fifth and Eighth Circuits, the Third Circuit noted that those courts “did not confront an
envelope that displayed core information relating to the debt collection and susceptible to privacy
intrusions.” Id. at 305. Indeed, the markings at issue before those Circuits were the words “priority
letter,” “PERSONAL AND CONFIDENTIAL,” and “IMMEDIATE REPLY REQUESTED.” See
Goswami v. American Collections Enteiprise, Inc., 377 F.3d 48$ (5th Cir. 2004): Strand v.

Diversified Collection Service, Inc., 380 F.3d 316 (8th Cir. 2004). Those markings, the Third
Circuit found, were clearly more benign than account numbers which could lead to privacy
intfttsions.

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This Court finds that, much like the envelopes in Douglass with visible account numbers,
the envelopes at issue in this case included symbols that contained core information relating to the
debtor’s financial predicament. These symbols, therefore, implicate the core privacy concerns that
the FDCPA was enacted to protect. Accordingly, this Court finds that the barcode is not benign,
and thus, as the Third Circuit did in Douglass, the Court declines to consider whether any benign
language exception applies.
In sum, the Court finds that Plaintiffs have sufficiently pled a cause of action under the
FDCPA. The Court’s conclusion is consistent with the requirement that remedial legislation such
as the FDCPA is to be construed broadly. Caprio v. Healthcare Revenue Recovery Group, LLC,
709 F.3d 142, 148 (3d Cir. 2013) (“As remedial legislation, the FDCPA must be broadly construed
in order to give full effect to [Congress’s] purposes.”)
IV.

Conclusion

For the reasons stated above, the Court denies Defendants’ motion to dismiss this action.
An appropriate Order accompanies this Opinion.
IT IS SO ORDERED.

DATED:

:;:%

2017

JOS1/. LIl&RES
CHI JUDGE, U.S. DISTRICT COURT

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