NEW YORK, N.Y. — RIP Medical Debt is pleased to announce that Allison Sesso is joining the national nonprofit as its new Executive Director. Allison leaves the Human Services Council of New York after six years as its Executive Director. 

RIP is a 501(c)(3) that uses donated funds to purchase portfolios of bundled medical debt on the secondary debt market for pennies on the dollar. It buys accounts for those most in need and least able to pay and then forgives them – reporting the debts as paid-in-full. In December of 2019, RIP announced that since 2014 it has officially relieved one billion dollars of medical debt for struggling Americans. To date RIP has helped over a million families by putting their medical debts to rest. 

“We are all very excited to have Allison take over as Executive Director of RIP Medical Debt,” shares Ted Sann, interim Executive Director and RIP board member. “Her great management skills will truly enhance our mission to help millions of Americans struggling with medical debt.” 

“I am excited to join the RIP Medical Debt team and bring my talent and expertise to the table,” says Allison. “I look forward to advancing this groundbreaking mission addressing economic instability stemming from a broken health care system.”  

Allison’s responsibilities at RIP will include operations, strategic development and communications. 

During her tenure with HSC, an association of 170 nonprofits which deliver 90% of NYC’s human services, Allison Sesso led successful efforts to streamline the relationship between the government and nonprofits. In 2017 Allison championed the “Sustain Our Sanctuary” campaign, which successfully drove over $300 million worth of investments into human services contracts – addressing a critical nonprofit fiscal crisis. 

Allison has also cultivated an expertise on matters of health care. She served on the New York State Department of Health’s Social Determinants (SDH) and Community Based Organizations (CBO) subcommittee, which worked to integrate community nonprofits into Medicaid’s managed care. She also headed a commission of experts which created a highly anticipated report on the social determinants of health and value-based payment structures titled, Integrating Health and Human Services: A Blueprint for Partnership and Action. For more info: https://humanservicescouncil.org/employee/allison-sesso/

RIP Medical Debt

RIP Medical Debt is a nonprofit that buys and forgives medical debt across America. It works with individual donors, philanthropists and organizations to purchase medical debt for pennies on the dollar to provide financial relief for those most burdened by medical bills. Founded in 2014 by two former collections industry executives, Craig Antico & Jerry Ashton, RIP rose to national prominence on an episode of HBO’s “Last Week Tonight” with John Oliver in which RIP facilitated the abolishment of $15M in medical debt. To learn more visit: www.ripmedicaldebt.org

Editor’s Note: This article was originally published on the Maurice Wutscher blog and is republished here with permission.

—

The U.S. Court of Appeals for the Sixth Circuit recently affirmed a district court’s finding that a consumer lacked standing to pursue a lawsuit alleging that collection notices sent by a law firm violated the FDCPA because no attorney with the firm conducted a meaningful review of his debts.

The court’s opinion in Buchholz v. Meyer Njus Tanick, P.A. can be found here.

The consumer received two collection letters that were printed on the law firm’s letterhead and signed by one of the firm’s attorneys. The consumer alleged that those letters were sent to him without any meaningful attorney review. In an effort to support this conclusion, the consumer asserted that the law firm sends so many letters that no attorney could possibly review all of them. He also alleged that the signatures on the two letters were identical and appeared to be “stock signatures.”

[article_ad]

‘Meaningful Involvement’ Claim Requires Standing

15 U.S.C. § 1692e(3) prohibits debt collectors from falsely representing or implying “that any individual is an attorney or that any communication is from an attorney.” The statute itself makes no mention of “meaningful involvement” or “meaningful review.” Instead, courts created the meaningful-involvement doctrine to evaluate claims asserted under § 1692e(3) with respect to communications that bear an attorney’s name or signature, but that are (in the words of one court) “not ‘from’ the attorney in any meaningful sense of the word.” Avila v. Rubin, 84 F.3d 222, 229 (7^th Cir. 1996).

The district court dismissed the consumer’s case, finding that the consumer lacked standing and that he failed to state a claim under the FDCPA. On appeal, the Sixth Circuit limited its review to the issue of standing and affirmed the district court’s dismissal.

A Bare Allegation of Anxiety is Insufficient to Allege an Injury in Fact

To pursue a case in federal court, a plaintiff must demonstrate that he has standing, and an essential element of standing is a showing that the plaintiff suffered an “injury in fact” as the result of the defendant’s alleged conduct. In this case, the consumer alleged that he suffered an injury in fact because the firm’s letters made him feel anxious and caused him to fear that the firm would sue him if he did not pay.

The Sixth Circuit held that although a plaintiff might sometimes recover damages for emotional distress in an FDCPA action, a bare allegation of anxiety is insufficient to allege an injury in fact. The Court also found that the consumer’s alleged anxiety was insufficient to confer standing because it was self-inflicted and thus not traceable to the law firm’s alleged conduct. That is, the Court determined that any anxiety suffered by the consumer was the result of his decision not to pay his undisputed debts, rather than the content of the law firm’s letters.

Consumer’s Procedural Violation Claim Also Insufficient

The consumer also argued that the alleged violation of § 1692e(3) was sufficient, on its own, to confer standing. The Sixth Circuit agreed that a plaintiff need not allege any additional harm when alleging that the defendant has violated a procedural right that was created by Congress to protect a “concrete interest.” However, while it is clear that Congress enacted the FDCPA to protect consumers from abusive debt-collection practices, the consumer could not show that the law firm’s letters caused him any harm that the FDCPA was intended to prevent.

The Court distinguished the procedural violation alleged by the consumer from procedural violations found to be sufficient to confer standing in other cases, such as violations that subjected the consumer to attempts to collect debts that the consumer did not owe and violations that placed consumers at risk of waiving rights protected by the FDCPA.

Standing is Subjective, Not Every Technical Violation is Redressable

Not every technical violation of the FDCPA is redressable in federal court, and some cases are subject to dismissal due to the plaintiff’s lack of standing. But the Supreme Court has noted that it is often difficult to determine when a plaintiff has sufficiently alleged an injury in fact resulting from the violation of a procedural right created by Congress. Standing, like beauty, is often in the eye of the beholder.

Last week, insideARM wrote an article about the Consumer Financial Protection Bureau’s (CFPB) newly-created taskforce to review consumer financial laws and regulations. The taskforce—originally with four members—has now grown by one with the CFPB’s announcement that it has added William MacLeod, partner at Kelley Drye & Warren, LLP, to the team. 

Director Kathleen Kraninger assigned the taskforce—chaired by Todd Zywicki—with reviewing current federal consumer finance laws and regulations. The taskforce will report recommendations for improving and strengthening the same to Director Kathleen Kraninger. Other members of the taskforce include Dr. J. Howard Beales, III, Dr. Thomas Durkin, and L. Jean Noonan. 

The announcement of MacLeod’s appointment came with further details about the taskforce’s mission:

The Taskforce will produce new research and legal analysis of consumer financial laws in the United States, focusing specifically on harmonizing, modernizing, and updating federal consumer financial laws—and their implementing regulations—and identifying gaps in knowledge that should be addressed through research, ways to improve consumer understanding of markets and products, and potential conflicts or inconsistencies in existing regulations and guidance.

[article_ad]

Considering the many consumer protection laws and regulations that don’t always mesh well with each other, the taskforce’s mission is an important one. insideARM will closely follow any developments.

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

[article_ad]

The bi-partisan TRACED Act became law last year December 30, 2019, in a pre-Supreme Court of the United States (SCOTUS) TCPA review world.  The TRACED Act makes various changes to the TCPA primarily to enhance enforcement, and mandate call authentication; for example, it increases fines, and extends the time for enforcers to pursue violators.  Now we are living in a world post-SCOTUS accepting review of the TCPA. 

The authors of “The Best For Last: The Timing of U.S. Supreme Court Decisions” 64 Duke L.J. 991, 993, concluded (based on a sample size of 7219 cases decided between 1946 and 2012) that SCOTUS usually issues its decision within three months of oral argument, and in 99% of cases they are decided in the same term they are accepted to hear the case.  Therefore, it is not unreasonable to expect that oral argument on the TCPA’s constitutionality could be held in a few months, with a decision issued by the end of June 2020, before the Court take its summer recess at the end of this term.

This means that 20% of the multi-faceted milestones noted below for the TRACED ACT will manifest before the fate of the very statute it seeks to enhance is determined.  As TCPAWorld has predicted, the TCPA as we know is a goner, at least in many respects; the question is which part(s) will survive.  The TRACED Act amendments to the TCPA may have a higher chance of remaining unscathed, but only time will tell for sure.

Below are the key deadlines imposed primarily on the FCC for implementing various components of the TRACED Act.

March 29, 2020

• The FCC “shall issue rules to establish a registration process for the registration of a single consortium that conducts private-led efforts to trace back the origin of suspected unlawful robocalls.”  This “Registered Consortium” is also responsible for upholding best practices regarding voice service providers’ participation in such efforts.

April 28, 2020

• The FCC must issue a “notice to the public seeking the registration” for the private consortium, and annually thereafter. 

• The FCC must initiate a proceeding to “protect called parties from one-ring scams.”  According to the FTC, “That’s when you get a phone call from a number you don’t know, and the call stops after just one ring. The scammer is hoping you’ll call back, because it’s really an international toll number and will appear as a charge on your phone bill — with most of the money going to the scammer.”  As part of the proceeding, the FCC must consider how it can (a) work with law enforcement agencies and foreign governments to address such scams, (b) in consultation with the FTC, better educate consumers, (c) incentivize voice service providers to stop them (d) work with entities that provide call-blocking services to address such scams, and (e) establish “obligations on international gateway providers that are the first point of entry for these calls into the” US.

June 27, 2020

• The FCC must commence a proceeding to “determine how Commission policies regarding access to number resources, could be modified…to help reduce access to numbers by potential perpetrators of the TCPA. If the FCC determines modifications could help in this regard, it is required to prescribe regulations to implement the modifications.

• The FCC must establish an advisory committee called the Hospital Robocall Protection Group.  And it must establish “best practices” as to how voice service providers can better combat unlawful robocalls made to hospitals, how they can better protect themselves from such calls and how the Federal and State governments can help combat such calls.

July 27, 2020

Via Public Notice, annually on July 27, the FCC must obtain information from the private registered consortium and voice service providers on the private-led efforts to trace suspected unlawful robocalls origins and recommendations in its enforcement efforts.  

September 25, 2020

• The FCC must prescribe and adopt implementing regulations for the TRACED Act.

• The Attorney General, in consultation with the FCC Chair, is required to establish “an interagency working group to study Government prosecution of TCPA violations.

• This group must submit to Congressional Committees a report on the findings of the study, including “any recommendations regarding the prevention and prosecution” of violations and what progress, if any, relevant Federal departments have made “implementing the recommendations.”

December 29, 2020

• The FCC must submit a report to Congress, annually, re its enforcement of the TCPA.

• A provider has until December 29, 2020, prior to the FCC being able to take action to show the provider has met certain steps with respect to adopting STIR/SHAKEN in its IP-networks and “reasonable measures” in its non-IP networks, including determining that the provider will be capable of fully implementing STIR/SHAKEN in IP-networks and fully implementing an effective call authentication frame work in non-IP networks by June 30, 2021

• The FCC must report to the House Energy and Commerce and Senate Commerce Committees (“the Committees”) on implementation of the call authentication frameworks and assess the “efficacy of” such frameworks in “addressing all aspects of call authentication.”

• The FCC must assess “any burdens or barriers” to implementation, including for certain voice providers, small providers of voice services, and issues relating to equipment availability. The FCC can delay compliance with the 18-month implementation deadline for a “reasonable period of time” for providers needing to address the “identified burdens and barriers” based on a “public finding of undue hardship.”

• The FCC must issue “best practices” that voice service providers may use in implementing effective call authentication frameworks to take steps to “ensure the calling party is accurately identified.”

• The FCC must promulgate rules establishing, among other things, “a safe harbor” for voice service providers “from liability for unintended or inadvertent blocking of calls or for unintended or inadvertent misidentification of the level of trust for individual calls based, in whole or in part, on information provided by the call authentication frameworks.”

• The FCC must initiate rules “help protect a subscriber from receiving unwanted calls or text messages from a caller using an unauthenticated number.” The FCC must consider a number of issues in the rulemaking, including the “best means of ensuring that a subscriber or provider has the ability to block calls from a caller using an unauthenticated North American Numbering Plan number” and the “impact on the privacy of a subscriber from unauthenticated calls.”

• The FCC must submit to Congress, and make publicly available on its website, a report on the status of its efforts pursuant to its December 12, 2018 Report and Order to implement a reassigned number database.

• The FCC must ensure the robocall blocking services provided on an opt-out or opt-in basis pursuant to its 6/18 Declaratory Ruling are provided with 1) effective redress options for consumers and callers and without additional line item charges for consumers and no additional charges to callers for resolving complaints related to erroneously blocked calls and 2) reasonable efforts to avoid blocking emergency public safety calls.

• The FCC shall publish on its website and submit to Congressional Committees a report that provides the number of instances that suggests a willful, knowing and repeated robocall violation with an intent to defraud, or cause harm and summary of types of robocall violations to which such evidence relates.

• The FCC must publish on its website and file with the Congressional Committees a report on the status of the one-ring scam proceeding.

• The FCC must annually make publicly available on its website and file with the Committees, a report on the status of private-led efforts to trace back the origin of suspected unlawful robocalls by the registered consortium and the participation of voice service providers in such efforts.

June 30, 2021

• The FCC shall require a voice service provider to implement STIR/SHAKEN in the IP-networks of the provider and require the provider to take reasonable measures to implement an effective call authentication framework in the provider’s non-IP networks.

• The FCC must prescribe regulations to establish a process that streamlines the ways in which a private entity may voluntarily share with the Commission information relating to: (a) a call or text message sent in violation of Section 227(b) and (b) a call or text message with spoofed caller ID information in violation of Section 227(c).

• The FCC must report to Congress on the results of a study as to whether to require a provider of covered Voice over IP (“VoIP”) service to provide and maintain current contact information with the FCC and retain records relating to each call transmitted over the service that are sufficient to trace such call back to the source of the call.

December 30 2022

• The FCC, after public notice and an opportunity for comment, must assess the efficacy of the call authentication frameworks, revise or replace them, if determined to be in the public interest, and submit a report to the Committees on the findings of the assessment and revision or replacement actions.  And must revisit this every three years thereafter.

The question remains whether or how any SCOTUS decision will impact an Act that passed both Houses of Congress by wide majorities with a handful of dissenting votes. TCPA World will be tracking the implementation process, and the Supreme Court’s consideration of the TCPA as we currently know it.

—

The iA’s Case Law Tracker can help you keep up and conduct incisive and quick legal research in less time than it takes to pour your morning cup of coffee.

WILMINGTON, Del. – Phillips & Cohen Associates, Ltd., the deceased account management leader servicing creditors in the US, Canada, UK, Ireland, Australia, New Zealand, Spain, Portugal and Germany announces the appointment of Linda Fonner as Global Chief Financial Officer. 

Ms. Fonner is a global finance leader and process improvement specialist, with significant experience overseeing multi-jurisdictional financial planning, strategy, risk & control initiatives for major corporations.   Linda brings with her numerous certifications and over two decades worth of experience with companies in the Fortune 500, FTSE 100 and Private Equity space in industries including pharma, banking and molten metals. Prior to her joining Phillips & Cohen Associates, Linda held a variety of global leadership roles with leading chemicals & plant provider, Atotech, and formerly with pharmaceuticals giant, Bristol-Myers Squibb. 

“I am very excited about joining Phillips & Cohen and to be a part of such a unique business”, said Ms. Fonner “I look forward to working with the dynamic Executive team to drive PCA’s continued global growth and financial management strategies.”  

Matthew Phillips, Co-Chairman/CEO of Phillips & Cohen commented, “We are thrilled to have an executive of Linda’s caliber join the organization to lead our finance & accounting teams in the next phase of our company’s domestic and international evolution.”

Adam S. Cohen, Co-Chairman/CEO added, “Linda’s extensive knowledge and international experience will be significant assets to Phillips & Cohen Associates.  We look forward to her input and guidance as we continue to expand in Europe, Asia and the Americas.” 

About Phillips & Cohen Associates, Ltd.
Phillips & Cohen Associates, Ltd. is a specialty receivable management company providing customized services to creditors in a variety of unique market segments.  Phillips & Cohen Associates, Ltd is domestically headquartered in Wilmington, DE, with additional offices in Colorado and Florida as well as international offices in the UK, Canada, Spain, Germany and Australia.  For more information about Phillips & Cohen Associates visit www.phillips-cohen.com. PCA provides Equal Employment Opportunity for all individuals regardless of race, color, religion, gender, age, national origin, disability, marital status, sexual orientation, veteran status, genetic information and any other basis protected by federal, state or local laws.

The governors of California and New York have both introduced plans to expand their states’ oversight of the credit and collections industry. This appears to be driven by the states’ perception that the Consumer Financial Protection Bureau (CFPB) has “rolled back” its oversight and enforcement activities, thereby creating a need for the states to step-in. It’s going to be a busy year!

California Proposes Mini-CFPB

On January 10, 2020, California’s Governor proposed a budget for 2020-2021 which contemplates the passage of a new California Consumer Financial Protection Law. The new law will essentially overhaul the Department of Business Oversight and transform it into the Department of Financial Protection and Innovation (“DFPI”). Simply put, the DFPI would be California’s version of the CFPB.  

Although the text of the California Consumer Financial Protection Law has not been released, the Governor’s Budget Summary reveals his vision for the DFPI. The DFPI would have expanded enforcement authority to pursue “unfair and deceptive practices” and would give DFPI jurisdiction to supervise debt collectors, credit reporting agencies, FinTech companies, and other financial services providers previously unlicensed and unregulated by the Department of Business Oversight.  

The DFPI costs would initially be “covered by available settlement proceeds in the State Corporations and Financial Institutions Funds, with future costs covered by fees on the newly covered industries and increased fees on existing licensees.” The proposed budget for the DFPI would include a “$10.2 million Financial Protection Fund and 44 positions in 2020-21, growing to $19.3 million and 90 positions ongoing in 2022-23.” 

Specifically, the DFPI’s activities would include:

• Offering services to empower and educate consumers, especially older Americans, students, military service members, and recent immigrants; 
• Licensing and examining new industries that are currently under-regulated;
• Analyzing patterns and developments in the market to inform evidence-based policies and enforcement;
• Establishing a new Financial Technology Innovation Office that will proactively cultivate the responsible development of new consumer financial products;
• Offering legal support for the administration of the new law; and 
• Expanding existing administrative and information technology staff to support the Department’s increased regulatory responsibilities. 

Why is California’s Governor proposing this? The Budget Summary states “California’s economy and its people thrive when predatory business practices are policed and innovation is cultivated . . . The federal government’s rollback of the CFPB leaves Californians vulnerable to predatory businesses and leaves companies without the clarity they need to innovate.” 

[article_ad]

It is now up to California’s Legislature to review and pass the Governor’s proposed budget. The Legislature has until June 15th to pass the budget, which means the public has a short window of opportunity to offer comments to their legislators on the State’s spending priorities. 

New York Proposes Debt Collector Licensing

On January 8, 2020, New York’s Governor released his annual message to the State Legislature, titled “State of the State,” which outlines his proposed agenda for 2020. It reveals that the Governor plans to propose legislation to give New York’s Department of Financial Services (“DFS”) “authority to license debt collection entities, and empower DFS to examine and investigate suspected abuses, including by requiring the submission of information to DFS, and authorizing DFS investigators to enter a debt collector’s office at any time to review its books and records.” 

The proposal explains how licensing debt collectors would give the State greater control over collectors. For example, it would provide the State with a mechanism to collect fines, revoke licenses (thereby preventing certain collectors from collecting in the State), and “combat schemes intended to defraud people into paying debts they do not owe.”

In addition to the above, the Governor has plans to propose more legislation intended to regulate the credit and collections industry, including:

• Introducing a law which prohibits unfair, deceptive, abusive acts and practices (“UDAAP”), thereby making New York law consistent with federal law.
• Eliminating exemptions which currently exist for some unlicensed financial products and services.
• Requiring more supervised entities to pay assessments to the DFS to cover the costs of examinations and oversight. 
• Increasing fine amounts for violations of New York’s Insurance Law.
• Prohibiting lenders from requiring consumers to sign a confession of judgment, thereby codifying the Federal Trade Commission’s rule which prohibits confessions of judgment. 

Like California, the New York Governor stated he is proposing this legislation because the CFPB has recently “rolled back key federal consumer financial protections and scaled-back enforcement efforts in critical areas.” 

Also noteworthy from the State of the State is the Governor’s plan to introduce “three-part nation-leading legislation to unmask and fight back” against illegal telemarketing calls and robocalls. The legislation would: (1) “require telephone providers to block robocalls,” (2) “require rapid implementation of call authentication technology to flag questionable callers,” and (3) “create new penalties against telecom companies that do not comply and double penalties against robocalls for ‘Do Not Call’ Law violations.”

Following McCurley, the biggest trend in new TCPA suits is class actions against lead purchasers contending that lead aggregators falsified leads.

The theories behind these new suits vary. Some suits contend that the data supplied by the lead aggregators was obtained from third-parties as a result of black market purchases or data breach exploitation. Some contend that leads are cooked up by the lead generators themselves, with falsified tokens from third-party consent verifiers documenting website interactions that never took place. These theories are nascent and developing. But they form the backbone of innumerable TCPA class actions winding their way through the Courts at the moment and have placed lead purchasers firmly in the crosshairs. (You can bet your bottom dollar the team is going to address this trend LIVE on stage next Tuesday at Lead generation World.)

[article_ad]

But is any of this true? There has yet to be a single finding–to my knowledge at least–that any reputable lead aggregator has definitively (much less deliberately) sold false leads. Plus the theory makes no sense from a business perspective- why would a lead aggregator dilute the value of its product with fake leads? Sure they might make a few extra bucks in the short term but pretty quickly folks will stop buying their leads as conversion plummets.

So this all smells like a hair-brained conspiracy theory–especially since no reliable evidence of misconduct by aggregators has surfaced (again, at least not to my knowledge or in any case we’ve reported on–other than possibly McCurely). Yet the suits keep piling up.

And in a marked escalation of these lawsuits, things just got personal for Adrian Bacon, a prominent consumer lawyer from California. Yesterday he filed a TCPA suit in federal court in Texas seeking to personally serve as a class representative against a large and reputable lead provider—All Web Leads, Inc–contending that the lead generator was systematically falsifying leads. The allegations of the Complaint—which are just allegations at this point—are as follows:

Defendant’s business practices include making “tens of thousands” of autodialed telemarketing calls to leads every day in order to inquire whether the consumer is interested in purchasing insurance, check the accuracy of their contact information, and determine whether the consumer is interested in speaking with an agent about their insurance needs. After Defendant “qualifies” the lead, Defendant completes a live transfer of the consumer’s phone call to one of its insurance industry customers.

One of the methods in which Defendant generates leads is through the utilization of Internet marketing. Defendant owns and operates various websites that are devoted to offering insurance quotes for specific types of insurance that consumers search for over the Internet. One of the websites that Defendant owns and operates is www.insurancequotes.com.

Upon information and belief, Defendant also engages and works with third-party call centers to contact consumers who never inquired about insurance through any medium. In one instance, a third party, utilizing a sophisticated automated voice response system, contacts consumers and attempts to illicit a positive response from each when the computer asks whether that individual is interested in receiving information about insurance. The computer then immediately forwards the caller’s information as a positive hit to Defendant, who then places a subsequent call to that consumer for the purpose of making a sales pitch. Defendant and/or the third parties believe they have circumvented the TCPA and have legal consent to place the calls to these individuals.

The problem is, on information and belief, the call center forwards contact information for any live body who answers the call and communicates with the automated system, regardless of whether that person gave valid consent to receive subsequent marketing calls from Defendant. Furthermore, there is no question the initial calls from the call centers are placed in violation of the TCPA. Therefore, the call centers (agents) are also liable for violating the TCPA, as are the principals (Defendant).

It remains to be seen whether any of these allegations have merit. All Web Leads declined to comment for the story but I’m pretty sure they’re going to have a lot to say about the lawsuit in court.

So what do you think TCPAWorld? Is this rash of lawsuits just the Plaintiff’s bar’s latest quixotic effort to cash in with bogus lawsuits? Or, far-fetched though it seems, are lead aggregators really selling bogus leads by the barrel full to make a buck, despite the massive risk such conduct would create? I know where my money is, but you have to admit this is interesting stuff–especially since the courts have yet to shut down this sort of lawsuit. The jury is, quite literally, still out.

The complaint can be found here: Bacon

We will, of course, keep you posted on developments.

—

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

The Consumer Financial Protection Bureau (CFPB) published an announcement soliciting applications for membership to its several advisory committees, including the Consumer Advisory Board (CAB). Per the Dodd-Frank Act, the CFPB is charged with seeking experts in, among other things, consumer protection and consumer financial products or services. 

While membership in the advisory committees generally lasts for a two-year term, the CAB has seen a flux in its lineup over the past couple of years. The CFPB’s Former Acting Director Mick Mulvaney disbanded all advisory boards at the Bureau in June 2018. Later that year in September—still under Mulvaney’s tenure—a new CAB was formed. In 2019, the CAB saw another round of applications. The 2019 CAB’s membership contained mostly new faces (the 2018 CAB contained nine members, only four of which continued to the 2019 CAB).

Applications are available electronically. The application window is open through February 27, 2020. 

[article_ad]

insideARM Perspective

There is one sector of consumer finance that has been notably absent from the last two CABs: the debt collection industry. The last representative from the industry that sat on the CAB was Ohad Samet from TrueAccord, who was a member of the CAB that Mulvaney abruptly disbanded. Prior to that, Joann Needleman of Clark Hill served a full two-year term. Both Needleman and Samet were selected for the CAB when Former Director Richard Cordray ran the CFPB. 

Considering the CPFB’s focus on debt collection, especially as it looks to modernize and innovate the industry through its proposed debt collection rules, it would be beneficial to have a representative from the industry sit on the advisory board. For this reason, we encourage industry members to apply.

SAN FRANCISCO, Calif. — LiveVox Inc., a leading provider of customer service and digital engagement tools, announced that LiveVox Sr. Director of Product Marketing, Jim Lynch, will join Jennifer Kuechler, COO, Strategic Link, to host a Think Tank on the topic of omnichannel engagement at the upcoming CCW Winter Conference. 

[article_ad]

Strategic Link, an omnichannel fintech leader, will share how a focus on delivering personalized customer experience through data is helping pave the way to the next generation of engagement with technology partners such as LiveVox. The session will also discuss best practices, lessons learned, and new ideas to help overcome key challenges to achieving to optimal business performance in today’s digital age. 

On the event, Jennifer Kuechler, COO, Strategic Link, states, “Although the topic of omnichannel has been popular for more than a decade now, it still remains difficult to achieve. This is often due to businesses taking a bolt-on approach to adding new channels, without a holistic understanding of how these new channels may impact the overall customer experience. Although we continue to see an increased demand for digital channels, customers still expect a unified and cohesive experience throughout their entire customer journey, regardless of how they choose to communicate with a brand. I look forward to sharing more on this topic, as well as some lessons learned at the upcoming CCW Nashville Conference.” 

LiveVox Sr. Director of Product Marketing, Jim Lynch, reiterates this sentiment sharing, “Over the last several years I have had the unique opportunity to work with many contact center leaders as they seek to expand their engagement strategies to incorporate new channels. In the process, I have seen approaches that work, as well as some that don’t. I am excited to be joining Jennifer and other industry leaders at CCW to discuss some best practices that I have learned along the way around how to use data to achieve true omnichannel to meet the needs of today’s digital consumer.”

About the Event:

• Event: CCW Winter 2020
• Session: Omnichannel Think Tank: How to Leverage Data to Optimize an Omnichannel Customer Experience
• Date/Time: January 30th at 10:50am – 12:25pm CT
• Location: JW Marriot Nashville; Nashville, TN
• Register: click here. 

About LiveVox, Inc.

LiveVox is the only one-stop-shop for true omnichannel engagement that unifies modern channels, CRM, and WFO functionality into a single cloud customer engagement platform. Facilitating over 14B interactions annually, LiveVox makes omnichannel easy by unifying all conversations and interactions in one place. Founded in 2000, LiveVox is headquartered in San Francisco with offices in Atlanta, Denver, St. Louis, Colombia, and Bangalore. To learn more, visit www.livevox.com. Info@LiveVox.com

About Customer Contact Week (CCW)

 Started in 1999 as Call Center Week, CCW is the world’s largest customer contact event series. With the balance of conference and expo, CCW is the place where customer care, CX, and contact center leaders come together. In 2018 we’re introducing our new look as Customer Contact Week. CCW is brought to you by the Customer Management Practice – the Analyst, Advisor, and Industry Network for all things Customer Management.

While the world is all watching curiously to see whether the SCOTUS will swing the axe this time at the TCPA’s content-specific exemption, a decision yesterday by the Middle District of Florida has drawn my attention, as it held that random or sequential number generation is required for a device to qualify as an ATDS under the TCPA. (See Morgan v. Adventist Health System/Sunbelt, Inc., et al., Case No. 6:18-cv-1342-Orl-78DCI (M.D. Flo., Jan. 13, 2020).) The court’s order adds to the number of cases holding random or sequential number generation is key in determining an ATDS. (Kindly note, refer to our popular post – “TCPAWorld’s Rolling ATDS Review” – for lists of courts’ split opinions.)

Defendant Adventist Health System/Sunbelt, Inc.’s (“AdventHealth”) hospital facility treated a non-party M.R. back in 2015. At that time, M.R. gave AdventHealth permission to contact her at a phone number ending in 2301 (“2301 Number”). Later, this 2301 Number was reassigned to Plaintiff. Defendant Medical Services, Inc. (“MSI”) was a contractor of AdventHealth for the purpose of payment collection. And defendant North American Credit Services, Inc. (“NACS”) was another contractor of AdventHealth for the purpose of debt collection. MSI and NACS placed four calls in total to Plaintiff’s 2301 Number, and as a result of these calls, Plaintiff sued all three defendants for violations of the TCPA.

[article_ad]

In the defendants’ Motions for a Final Summary Judgment on Plaintiff’s TCPA Claims, defendants argue that they reasonably relied on the express consent given by the prior holder of the 2301 Number, and cited to ACA Int’l v. FCC, 885 F. 3d 687 (D.C. Cir. 2018). Defendants also argue that they did not use an ATDS to make calls to Plaintiff because the system used by them to make the calls at issue does not randomly or sequentially generate numbers to be called.

As to defendants’ first argument, the court found that “Defendants read ACA International too broadly.” (See January 13, 2020 Order [“Order”] at p. 4.) The court stated that pursuant to the FCC’s 2015 declaratory ruling, the caller was allowed “one – and only one – liability free, post-reassignment call” to the current subscriber of a reassigned telephone number if it lacked knowledge of the reassignment and had a reasonable basis to believe there was valid consent for the call. However, the ACA Int’l court found that this one-call safe harbor rule is arbitrary, and thus set aside the FCC’s treatment of reassigned numbers as a whole. The ACA Int’l did not adopt any reasonable reliance test or exception when dealing with reassigned numbers. Therefore, the court found that defendants’ argument based on the ACA Int’l failed.

With respect to defendants’ second argument, the court agrees with the majority of the courts in the district that ACA Int’l, “in invalidating the 2-15 FCC definition of an ATDS, also necessarily vacated the prior definitions that the 2015 definition reaffirmed.” (See Order at p. 5.) The court thus determined that it is not bound by the FCC’s 2003 and 2008 declaratory ruling. (Again, refer to another of our popular posts – “The Developments That Rocked TCPAWorld” – for all of FCC’s declaratory rulings as well as other key decisions and developments regarding the TCPA.)

An ATDS must “ha[ve] the capacity … to store or produce telephone numbers to be called, using a random or sequential number generator.” (47 U.S.C. § 227(a)(1)(A).)  Here, the qualifying phrase – “using a random or sequential number generator” – modifies both “store” and “produce.” (See Order at p. 6.) Thus, by looking at the plain language of the statue itself, the court found that a system must have the present ability to randomly or sequentially generate telephone numbers to be an ATDS under the TCPA. Accordingly, defendants’ system is not an ATDS given that it does not have the present capability to randomly or sequentially generate telephone numbers.

For these reasons, the court granted defendants’ summary judgment motions on all of Plaintiff’s claims based on the use of an ATDS, and denied in all other respects.

—

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved.