Third Circuit Denies En Banc Petition in FDCPA Barcode Case

Hey, Eleventh Circuit! You should look at how quickly the Third Circuit rules on en banc petitions and maybe ask for a few pointers. As the industry’s wait for a ruling on the en banc petition in the Hunstein case begins its third month, the Third Circuit Court of Appeals yesterday denied an en banc petition in a Fair Debt Collection Practices Act case — 15 days after the petition was submitted. How’s that for efficiency? But I am sure that everyone in the industry will be glad to wait a little longer for the Eleventh Circuit to make its decision if it means getting the result that they are all hoping for.

Yesterday, the Third Circuit announced it had denied a petition from a defendant in an FDCPA case that was sued for including a barcode on the envelope containing a collection letter. The defendant had argued that, following the Supreme Court’s ruling in TransUnion v. Ramirez that the plaintiff lacked standing to sue, but the judges sitting on the Third Circuit did not see it that way, apparently. None of the judges who participated in the original ruling asked for a rehearing and there wasn’t a majority of judges who voted for a rehearing, according to a one-page order released by the Court.

The Third Circuit last month overturned a lower court’s dismissal of the suit, ruling that the inclusion of the barcode, which contained the first 10 characters of the plaintiff’s street address, was sufficient to confer standing. A District Court judge had originally dismissed the suit, ruling that the barcode did not reveal enough protected information to rise to the level of the plaintiff suffering a concrete injury. The Internal Reference Number embedded in the barcode could be used — with a second piece of information, such as a birthdate or email address — to gain access to an individual’s account, which — to the Third Circuit — meant that the barcode was capable of identifying the plaintiff as a debtor. The defendant also argued that the IRN was not an account number, that the plaintiff did not know how to use the IRN to unlock personal information, and that there was no material risk of harm, but the panel of Third Circuit judges saw it differently.

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