John Daubert v. NRA Group LLC , 861 F.3d 382 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
Nos. 16-3613 and 16-3629
______
JOHN DAUBERT,
Cross-Appellant in No. 16-3629
v.
NRA GROUP, LLC, d/b/a National Recovery Agency,
NRA Group, LLC,
Appellant in No. 16-3613
______
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 3-15-cv-00718)
District Judge: Honorable A. Richard Caputo
______
Argued May 23, 2017
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
(Filed: July 3, 2017)
Richard J. Perr [ARGUED]
Fineman Krekstein & Harris
Ten Penn Center
1801 Market Street, Suite 1100
Philadelphia, PA 19103
Brett M. Freeman
Carlo Sabatini [ARGUED]
Sabatini Law Firm
216 North Blakely Street
Dunmore, PA 18512
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
This case — involving tens of thousands of dollars in
statutory damages, half a jury trial, and cross-appeals — stems
from a debt collector’s pursuit of $25 in unpaid medical bills.
John Daubert won summary judgment on his Telephone
Consumer Protection Act (TCPA) claim against NRA Group,
LLC but he lost at trial on his Fair Debt Collection Practices Act
(FDCPA) claim. NRA appeals. Daubert cross-appeals. We’ll
affirm on the TCPA claim but reverse and remand on the
FDCPA claim.
I
It started with lower-back pain. Daubert went to Wilkes-
Barre General Hospital for treatment. The Hospital’s radiology
department, operated by Radiology Associates of Wyoming
2
Valley, x-rayed him. His bill was $46. Radiology Associates
forwarded his medical report and cellphone number to the
company that billed its patients, Medical Billing Management
Services, or MBMS. Daubert’s health-insurer contributed $21,
so Daubert was responsible for the remaining $25. He
apparently didn’t pay (it’s unclear why). So MBMS transferred
his account to a debt collector, NRA, passing along Daubert’s
cell number.
NRA attempted to collect the $25 that Daubert owed
Radiology Associates in two ways. First, it sent him a collection
letter through an independent vendor. Visible through glassine
windows on the envelope were — Daubert alleged — the bare
sequence of letters and numbers NRA used to keep track of
Daubert’s collection account in its system and — undisputedly
— a barcode that, when scanned by the appropriate reader,
revealed that account number. Second, NRA called Daubert
sixty-nine times in ten months. He answered just once. Each call
was made using a Mercury Predictive Dialer. Calls were made
according to campaigns created by Charlene Sarver, NRA’s
collections director. Campaigns used preselected criteria to pick
the accounts and phone numbers the Dialer could access.
Daubert sued NRA in Pennsylvania state court. He
alleged violations of the FDCPA, 15 U.S.C. § 1692 et seq. The
bare account number and barcode on the collection letter’s
envelope, he claimed, could’ve revealed his private information.
NRA removed the case to the District Court and filed an answer
pressing a “bona fide error” defense to Daubert’s FDCPA claim.
See 15 U.S.C. § 1692k(c).
A month before discovery’s end Daubert filed a motion
to amend his complaint. Based on the sixty-nine calls he
received and the Dialer’s automation he wanted to allege a
violation of the TCPA, 47 U.S.C. § 227. NRA opposed the
3
motion but the District Court granted it. So NRA amended its
answer adding a “prior express consent” defense to Daubert’s
new TCPA claim. See id. § 227(b)(1)(A)(iii).
Daubert served NRA with a deposition notice under
Federal Rule of Civil Procedure 30(b)(6). It was delivered two
weeks before the deposition was to occur. It said NRA was to
pick a witness ready to testify on its behalf about things
germane to Daubert’s FDCPA and TCPA claims. For his TCPA
claim Daubert wanted information about any automated dialing
system NRA used to call third parties.
NRA designated Anita Schaar, director of payment
processing, as its 30(b)(6) witness. At her deposition she was
asked, “Are you able to testify about all the information known
or readily available to NRA Group, LLC about [the] topics [in
the 30(b)(6) notice]?,” to which she responded, “Yes.” J.A. 153.
She was asked, “Is there anything you think you could have
done to have prepared more for today’s deposition?” J.A. 154.
She said, “No, I don’t think so,” but mentioned she could’ve
spoken to her coworker Charlene Sarver who “might” have had
“more technical information” about the Dialer than she. J.A.
155. Schaar went on to explain how NRA’s employees only
generate calling campaigns. The Dialer, she said, is otherwise
fully automated:
Q. . . . So how is a phone call placed through
the dialer system?
A. There is a campaign created.
Q. And this is the type of campaign that
Charlene [Sarver] would create?
A. Yes . . . .
4
Q. Is a human being involved in the
placement of any phone calls made on
the dialer, with the exception of creating a
campaign?
A. I — I don’t know. I don’t think there’s any
other way to — no. The dialer does the
dialing.
Q. Okay. So a human being selects the
campaign criteria but then the dialer
actually places the phone call?
A. Correct.
Q. Okay. When does an employee of NRA
first get involved in a phone call that’s
been placed?
A. When someone answers the phone . . . .
Q. . . . If a phone call is not answered by a
debtor, is an NRA employee ever involved
in that phone call?
A. No.
J.A. 198–99, 206–207.
When discovery closed Daubert asked for summary
judgment on his FDCPA and TCPA claims. For his TCPA claim
he cited, among other things, Schaar’s 30(b)(6) testimony and
his own affidavit saying he “never provided” Radiology
Associates or NRA his cell number or “permission” to call his
cell number. J.A. 137–38.
In opposing Daubert’s summary-judgment motion NRA
submitted an affidavit it didn’t produce during discovery. It was
from Charlene Sarver. There Sarver contradicted Schaar’s
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30(b)(6) testimony. The Dialer can’t make phone calls without
“human intervention,” she said, as a person must first “hit the
‘F4’ key on a keyboard.” J.A. 380. Doing so triggers the Dialer,
she claimed, causing it to “go through the accounts” stored in
NRA’s system to select one meeting a campaign’s criteria. Id.
“Without a collector hitting the ‘F4’” key, she swore, the Dialer
“cannot make a phone call.” Id.
The District Court granted Daubert summary judgment
on his TCPA claim. Relying in part on Schaar’s 30(b)(6)
testimony the court found no genuine dispute that NRA violated
the TCPA by autodialing Daubert’s cellphone sixty-nine times
without his prior express consent. Applying the sham-affidavit
doctrine the court declined to consider Sarver’s contradictory
affidavit, binding NRA to Schaar’s 30(b)(6) testimony. Daubert
was owed $500 in statutory damages for each TCPA violation
($500 × 69 calls = $34,500). See 47 U.S.C. § 227(c)(5)(B).
The court, however, denied Daubert summary judgment
on his FDCPA claim. It held that while the barcode
undisputedly visible through the envelope violated the FDCPA,
a reasonable jury could conclude that NRA relied in good faith
on two federal district court decisions deeming similar barcodes
legal under the FDCPA. So a genuine, material factual dispute
existed on whether NRA’s FDCPA violation was “not
intentional and resulted from a bona fide error notwithstanding
the maintenance of procedures reasonably adapted to avoid” it.
15 U.S.C. § 1692k(c). A jury trial was scheduled to resolve that
dispute.
At trial NRA moved for judgment as a matter of law on
Daubert’s FDCPA claim under Rule 50(a). Despite finding that
whether the account number was visible alongside the barcode
was a “clear jury question,” J.A. 677, the court granted the
motion, holding that no reasonable jury could find that either
6
alleged FDCPA violation resulted from anything other than an
unintentional, bona fide error. With that the court discharged the
jury and entered final judgment. These appeals followed.
II
The District Court had jurisdiction under 28 U.S.C. §
1331. We have it under 28 U.S.C. § 1291.
We review orders granting summary judgment de novo.
Steele v. Cicchi, 855 F.3d 494, 500 (3d Cir. 2017). Summary
judgment is warranted if the moving party shows there’s “no
genuine dispute as to any material fact” and he’s “entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view
the facts in the light most favorable to the nonmoving party,
drawing all inferences in its favor. Steele, 855 F.3d at 500.
Though we’ve yet to say so expressly, we review a
district court’s decision to exclude materials under the sham-
affidavit doctrine for abuse of discretion. See Hackman v. Valley
Fair, 932 F.2d 239, 241 (3d Cir. 1991) (A court “may”
disregard an affidavit under the doctrine.); cf. EBC, Inc. v. Clark
Bldg. Sys., Inc., 618 F.3d 253, 267–70 (3d Cir. 2010) (Courts
“may, in their discretion, choose to allow contradictory
changes” to deposition testimony.). Most courts of appeals do
the same. See Escribano-Reyes v. Prof’l HEPA Certificate
Corp., 817 F.3d 380, 386 (1st Cir. 2016); France v. Lucas, 836
F.3d 612, 622 (6th Cir. 2016); Cole v. Homier Distrib. Co., 599
F.3d 856, 867 (8th Cir. 2010); Yeager v. Bowlin, 693 F.3d 1076,
1079 (9th Cir. 2012); Law Co. v. Mohawk Constr. & Supply
Co., 577 F.3d 1164, 1169 (10th Cir. 2009); Telfair v. First
Union Mortg. Corp., 216 F.3d 1333, 1337, 1342–43 (11th Cir.
2000); cf. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th
Cir. 2004) (“We review for an abuse of discretion the district
court’s decision to disregard parts of a plaintiff’s affidavit.”).
7
But see Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 n.* (D.C.
Cir. 2007) (suggesting de novo review applies).
III
A
NRA first says the District Court was wrong to grant
Daubert summary judgment on his TCPA claim. A reasonable
jury, it argues, could find that Daubert gave his “prior express
consent” to receive calls about his bill. We disagree.
“Congress passed the TCPA to protect individual
consumers from receiving intrusive and unwanted calls.” Gager
v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013); see
Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372–73 (2012).
To that end the TCPA bars “any person within the United
States” from making calls to a phone number assigned to a
“cellular telephone service” using an “automatic telephone
dialing system.” 47 U.S.C. § 227(b)(1)(A)(iii). Excepted from
this proscription are calls made with the “prior express consent
of the called party.” Id. That language is in issue here. Our
analysis of the TCPA’s scope is guided by the statute’s text, the
Federal Communications Commission’s (FCC’s) interpretations
of the statute, the statute’s purpose, and “our understanding of
the concept of consent as it exists in the common law.” Gager,
727 F.3d at 268.
Starting with the statute’s text we note Congress left
“prior express consent of the called party” undefined. When a
phrase goes undefined in a statute we give it its ordinary
meaning. Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 556
(3d Cir. 2017). The ordinary meaning of express consent is
consent “clearly and unmistakably stated.” Black’s Law
Dictionary 346 (9th ed. 2011); see Satterfield v. Simon &
Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009).
8
We next look to the FCC’s rulings interpreting the
TCPA. Congress requires the FCC to “prescribe regulations to
implement the [TCPA’s] requirements.” 47 U.S.C. § 227(b)(2).
The FCC “may, by rule or order,” exempt from §
227(b)(1)(A)(iii) certain calls made to cellphones. Id. §
227(b)(2)(C). It has done so. On the issue of prior express
consent the FCC has found that “persons who knowingly release
their phone numbers have in effect given their invitation or
permission to be called at the number which they have given,
absent instructions to the contrary.” 7 F.C.C. Rcd. 8752, 8769
(1992). The FCC later added that “autodialed . . . calls to
wireless numbers that are provided by the called party to a
creditor in connection with an existing debt are permissible as
calls made with the ‘prior express consent’ of the called party.”
23 F.C.C. Rcd. 559, 559 (2008) [hereinafter 2008 Ruling]. In
other words, the FCC says, the “provision of a cell phone
number to a creditor, e.g., as part of a credit application,
reasonably evidences prior express consent by the cell phone
subscriber to be contacted at that number regarding the debt” if
the number was provided “during the transaction that resulted in
the debt owed.” Id. at 564–65. Further, “[c]alls placed by a third
party creditor on behalf of that creditor are treated as if the
creditor itself placed the call.” Id. at 565.
That the cell number wasn’t provided directly to the
creditor, however, isn’t dispositive under the FCC’s rulings. The
“appropriate analysis turns on whether the called party granted
permission or authorization” to be called, “not on whether the
creditor received the [cell] number directly.” Mais v. Gulf Coast
Collection Bureau, Inc., 768 F.3d 1110, 1123 (11th Cir. 2014).
So a cellphone subscriber “could provide his number to a
creditor” and “grant prior express consent to receive autodialed
or prerecorded calls” by “affirmatively giving an intermediary
like [a hospital] permission to transfer the number to [his
9
creditor] for use in billing.” Id. at 1124. The FCC’s rulings
“make no distinction between directly providing one’s cell
phone number to a creditor and taking steps to make that
number available through other methods, like consenting to
disclose that number to other entities for certain purposes.”
Baisden v. Credit Adjustments, Inc., 813 F.3d 338, 346 (6th Cir.
2016).
Turning to the TCPA’s purpose we reiterate that the
statute is remedial in nature and “should be construed to benefit
consumers.” Gager, 727 F.3d at 271; see Leyse v. Bank of Am.
Nat’l Ass’n, 804 F.3d 316, 327 (3d Cir. 2015).
Finally we reaffirm that Congress “did not intend to
depart from the common law understanding of consent.” Gager,
727 F.3d at 270. The statute doesn’t treat the term differently
from its common law usage under which the basic premise of
consent is that it’s “given voluntarily.” Id. (quoting Black’s Law
Dictionary 346 (9th ed. 2009)); accord Osorio v. State Farm
Bank, F.S.B., 746 F.3d 1242, 1252–53 (11th Cir. 2014).
Applying these principles we agree with the District
Court that no reasonable jury could find that Daubert expressly
consented to receive calls from NRA about his $25 debt. As the
party claiming Daubert’s “prior express consent” NRA
would’ve been required to prove it at trial. See 2008 Ruling, 23
F.C.C. Rcd. at 565; cf. Evankavitch v. Green Tree Servicing,
LLC, 793 F.3d 355, 366 (3d Cir. 2015) (citing Osorio, 746 F.3d
at 1253). So to carry his burden as the party seeking summary
judgment Daubert needed to show the “absence of a genuine
issue of material fact” on his prior express consent. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (emphasis added);
see Fed. R. Civ. P. 56(c)(1)(B). This he did.
There’s no direct evidence Daubert gave his prior express
consent to receive calls to Radiology Associates (his creditor).
10
The circumstantial evidence suggests, and Daubert concedes it’s
reasonable to infer, that he gave his cell number to the Hospital
(an intermediary associated with his creditor) when he was
admitted there. But we agree with the District Court that more is
required to show a genuine dispute on prior express consent.
Baisden and Mais persuade us.
The Sixth Circuit found prior express consent where the
plaintiffs gave their cell numbers to a hospital-intermediary in
signing admittance forms. Baisden, 813 F.3d at 340–41. Those
forms said, for instance, “I understand” the hospital “may use
my health information” for “billing and payment,” id. at 340
(emphasis removed), and may “release my health information”
to “companies who provide billing services” (i.e., creditors), id.
at 341 (emphasis removed). Similarly the Eleventh Circuit
found prior express consent where the plaintiff’s wife gave her
husband’s cell number to a hospital-intermediary in signing
admittance forms on his behalf. Mais, 768 F.3d at 1113–14.
Those forms gave the hospital permission to, for example,
“release” his “healthcare information” for the purpose of
“payment,” id., to “use and disclose” his “health information” to
“bill [him] and collect payment,” and to “disclose” his “health
information” to its “business associate[s]” (i.e., creditors) so
they could “bill” him, id. at 1114.
Daubert, of course, could’ve indicated on his Hospital
intake form (assuming one exists) that he consented to have his
number transferred to Radiology Associates for billing or other
purposes. But no evidence of such prior express consent exists
in the record. By pointing that out, we hold, Daubert carried his
burden as the movant to show the absence of a genuine, material
factual dispute on NRA’s prior express consent defense. See
Celotex, 477 U.S. at 323.
11
The burden thus shifted to NRA as the nonmovant to “go
beyond the pleadings and by [its] own affidavits, or by the
depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for
trial.” Celotex, 477 U.S. at 324 (emphasis added; internal
quotation marks omitted); see Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). So NRA is
incorrect that the District Court “flipped” the summary-
judgment standard. NRA Br. 18. It didn’t. Rule 56 did. And
under that rule NRA had to do more than “simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita, 475 U.S. at 586. It was “put up or shut up time” for
NRA as the nonmovant. Berckeley Inv. Grp. v. Colkitt, 455 F.3d
195, 201 (3d Cir. 2006). NRA managed to show only that
Daubert maybe provided his cell number to the Hospital, an
intermediary associated with Radiology Associates. In light of
Baisden, Mais, and the FCC’s rulings, we don’t think that’s
enough. The court rightly held that no reasonable jury could
find that Daubert expressly consented to receive calls about his
bill from NRA.
B
NRA next says the District Court was wrong to disregard
Charlene Sarver’s affidavit under the sham-affidavit doctrine.
Her written statement, NRA claims, bars summary judgment for
Daubert on his TCPA claim because it shows a genuine dispute
about whether he was called using an “automatic telephone
dialing system.” We disagree.
When a nonmovant’s affidavit contradicts earlier
deposition testimony without a satisfactory or plausible
explanation, a district court may disregard it at summary
judgment in deciding if a genuine, material factual dispute
exists. See Hackman, 932 F.2d at 241; Jiminez v. All Am.
12
Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007). This is the
sham-affidavit doctrine. In applying it we adhere to a “flexible
approach,” Jiminez, 503 F.3d at 254, giving due regard to the
“surrounding circumstances,” Baer v. Chase, 392 F.3d 609, 624
(3d Cir. 2004).
If, for example, the witness shows she was “confused at
the earlier deposition or for some other reason misspoke, the
subsequent correcting or clarifying affidavit may be sufficient to
create a material dispute of fact.” Martin v. Merrell Dow
Pharm., Inc., 851 F.2d 703, 705 (3d Cir. 1988); see Jiminez, 503
F.3d at 254. Same result if there’s “independent evidence in the
record to bolster an otherwise questionable affidavit.” Baer, 392
F.3d at 625.
The court may, on the other hand, disregard an affidavit
when the “affiant was carefully questioned on the issue, had
access to the relevant information at that time, and provided no
satisfactory explanation for the later contradiction.” Martin, 851
F.2d at 706; see Jiminez, 503 F.3d at 254. It may similarly
disregard an affidavit “entirely unsupported by the record and
directly contrary to [other relevant] testimony,” Jiminez, 503
F.3d at 254, or if it’s “clear” the affidavit was offered “solely”
to defeat summary judgment, id. at 253; see In re CitX Corp.,
Inc., 448 F.3d 672, 679 (3d Cir. 2006); Martin, 851 F.2d at 705.
The District Court, we hold, acted well within its
discretion to disregard Sarver’s affidavit. Her sworn written
statement flatly contradicted Schaar’s earlier 30(b)(6)
testimony. Schaar testified that the Dialer can make calls
without human intervention. Sarver later swore it can’t. So NRA
had to give the District Court a “satisfactory explanation” for
this discrepancy. Hackman, 932 F.2d at 241. It didn’t.
NRA, for instance, failed to point the District Court to
any “independent evidence in the record” corroborating Sarver’s
13
affidavit. Baer, 392 F.3d at 625. None exists. NRA admitted
that much in its brief opposing summary judgment. There it
noted that apart from Schaar’s 30(b)(6) testimony and Sarver’s
affidavit, there’s “absolutely no mention” of the Dialer “in the
factual record.” J.A. 360. Why? NRA blamed Daubert: He
never asked for the Dialer’s “detailed specifications” or “even
something as simple as the model number.” Id. But even if
that’s true, NRA could’ve asked for a chance to supplement the
record before the District Court ruled on Daubert’s summary-
judgment motion. See Fed. R. Civ. P. 56(d)(2) (“If a nonmovant
shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition,” the
district court “may allow time to obtain affidavits or
declarations or to take discovery.”); Shelton v. Bledsoe, 775
F.3d 554, 568 (3d Cir. 2015). It didn’t. We’re left to conclude
that no independent record evidence corroborates Sarver’s
contradictory affidavit.
NRA also made no serious effort to explain to the
District Court why it believed Schaar was “‘understandably’
mistaken, confused, or not in possession of all the facts” about
the Dialer during her deposition. Jiminez, 503 F.3d at 254. NRA
knew Daubert wanted information about, for instance, “[e]ach
system” that’s an “automatic telephone dialing system” or that
can place a call “without any human contemporaneously dialing
the telephone number.” J.A. 245. NRA had two weeks to pick
and prepare a witness to testify on its behalf about these matters.
It picked Schaar. She testified she was ready, willing, and able
to speak for her company about the topics listed in the 30(b)(6)
notice. And she did exactly that. More than once she said the
Dialer is automated unless someone answers the call on the
other end. So her testimony belies what NRA told the District
Court in submitting Sarver’s contradictory affidavit: that Schaar
had “no technical knowledge about the inner workings of the
14
phone system,” J.A. 356, and “no information at all about the
telephone system,” J.A. 359. The District Court didn’t abuse its
discretion by disregarding these explanations.
NRA uses a similar strategy on appeal. It says Schaar
“made it abundantly clear” to Daubert’s counsel during her
deposition that “she was not prepared to discuss the technical
aspects of the Mercury Dialer, had no personal information
about the Mercury Dialer, and that [Daubert’s] counsel was
better off speaking with Ms. Sarver about these issues.” NRA
Third Step Br. 31. But that’s not true. Schaar said she “[m]aybe”
could’ve spoken to Sarver who “might” know more about the
Dialer than she and that doing so would’ve taken her “[m]aybe
30 minutes.” J.A. 155–56. These contentions, like NRA’s
contentions to the District Court, don’t show that Schaar was
understandably mistaken, confused, or not in possession of all
the facts. Nor do they show an abuse of discretion.
No satisfactory explanation was offered for Sarver’s
contradictory affidavit. The District Court didn’t abuse its
discretion in declining to indulge NRA’s attempt to paper over
Schaar’s damning 30(b)(6) testimony with Sarver’s affidavit.
NRA raises no other challenges, so we’ll affirm summary
judgment for Daubert on his TCPA claim. We move to
Daubert’s cross-appeal.
C
Daubert contests the District Court’s decision to grant
NRA judgment as a matter of law on his FDCPA claim. NRA’s
bona fide error defense founders, he says, because it’s premised
on a mistake of law. We agree.
Congress enacted the FDCPA to “eliminate abusive debt
collection practices by debt collectors.” Douglass v. Convergent
Outsourcing, 765 F.3d 299, 301 (3d Cir. 2014) (quoting 15
15
U.S.C. § 1692(e)). To further that goal the FDCPA bars debt
collectors from using “unfair or unconscionable means” to
collect a debt. 15 U.S.C. § 1692f. Subparagraph 8, in issue here,
prohibits debt collectors from “[u]sing any language 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, except that a debt collector may use his business name
if such name does not indicate that he is in the debt collection
business.” Id. § 1692f(8).
We’ve held that a debt collector violates § 1692f(8) by
sending a collection letter in an envelope that displays the
debtor’s bare account number. Douglass, 765 F.3d at 303. This
practice “implicates a core concern animating the FDCPA” —
the “invasion of privacy” — because an account number is a
“core piece of information” pertaining to the debtor’s “status as
a debtor.” Id. But we left open whether a debt collector violates
§ 1692f(8) by displaying a barcode (in Douglass, a QR code) on
an envelope that, when scanned, reveals the debtor’s account
number. Id. at 301 n.4.
The District Court here answered that open question. It
held that NRA’s use of a barcode on Daubert’s envelope
violated § 1692f(8), even if the bare account number itself had
not been visible. NRA doesn’t challenge that conclusion on
appeal, so we don’t opine on it. Rather, we focus on the defense
NRA invoked to avoid liability for the FDCPA violation the
District Court found. That defense is called the bona fide error
defense. It says a debt collector can escape liability under the
FDCPA by proving that its statutory violation was “not
intentional and resulted from a bona fide error notwithstanding
the maintenance of procedures reasonably adapted to avoid any
such error.” 15 U.S.C. § 1692k(c). But the defense doesn’t
apply if the violation resulted “from a debt collector’s mistaken
16
interpretation of the legal requirements of the FDCPA.” Jerman
v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S.
573, 577 (2010). In other words, a mistake of law isn’t a bona
fide error.
The District Court here said Jerman doesn’t apply. When
NRA used the (assumedly) offending barcode, the court
reasoned, it did so in good-faith reliance on two federal district
court decisions holding that barcodes don’t violate § 1692f(8):
Waldron v. Professional Medical Management, 2013 WL
978933, at *3 (E.D. Pa. Mar. 13, 2013), and the district court’s
decision in Douglass, 963 F. Supp. 2d 440, 446–47 (E.D. Pa.
2013), vacated on other grounds, 765 F.3d 299. The Douglass
district court had further held that even a visible account number
doesn’t violate § 1692f(8). 963 F. Supp. 2d at 446. So, the
District Court held, NRA’s violation was an unintentional, bona
fide error. We don’t think it was.
NRA’s defense is substantially similar to the defense the
debt collector pressed in Jerman. There a law firm filed a
foreclosure action against a homeowner in state court and
attached to the complaint a notice saying that unless the
homeowner disputed the debt in writing it would be presumed
valid. 559 U.S. at 578–79. The homeowner sued under the
FDCPA, saying the statute doesn’t require a written dispute. Id.
at 579 & n.1. Ruling on the law firm’s motion to dismiss, the
district court recognized that no Sixth Circuit precedential
opinion had addressed the issue at hand and that other circuit
and district courts had reached different conclusions. 464 F.
Supp. 2d 720, 722–25 (N.D. Ohio 2006); see 559 U.S. at 579
(noting that the district court acknowledged a “division of
authority on the question”). So the district court followed the
majority view that the statute doesn’t require a written dispute
and held that the homeowner adequately pleaded a FDCPA
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violation. 464 F. Supp. 2d at 725. But after discovery the district
court granted the law firm summary judgment, ruling that any
FDCPA violation resulted from an unintentional, bona fide
error. 502 F. Supp. 2d 686, 693–97 (N.D. Ohio 2007). The law
firm, the court said, relied in “good faith” on persuasive
authority from other circuit and district courts deeming its
conduct legal. Id. at 695–96. The Sixth Circuit affirmed, saying
the defense applies to “bona fide errors of law.” 538 F.3d 469,
476 (6th Cir. 2008).
The Supreme Court disagreed. The bona fide error
defense, it held, doesn’t apply to FDCPA violations “resulting
from a debt collector’s mistaken interpretation of the legal
requirements of the FDCPA.” 559 U.S. at 577. FDCPA
violations forgivable under § 1692k(c) must result from
“clerical or factual mistakes,” not mistakes of law. Id. at 587.
The Court drew support from § 1692k(c)’s language that a debt
collector must maintain “procedures reasonably adapted to
avoid” errors. Procedures, the Court said, are “processes that
have mechanical or other such regular orderly steps” designed
to “avoid errors like clerical or factual mistakes,” and “legal
reasoning is not a mechanical or strictly linear process”
amenable to such procedures. Id. at 587 (internal quotation
marks omitted).
Jerman controls. Like the underlying legal issue in
Jerman the legal issue here — whether bare account numbers or
barcodes violate § 1692f(8) — was unsettled by any relevant
binding authority. The Supreme Court has never addressed it.
Before Douglass we hadn’t either, and even there we set aside
the issue of barcodes. 765 F.3d at 301 n.4. So without binding
authority NRA did precisely what the law firm did in Jerman: It
relied on persuasive authority (here, two district court decisions)
holding that account numbers or barcodes don’t violate the
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FDCPA. Jerman makes plain that the bona fide error defense
doesn’t apply in that circumstance. Where an issue of law under
the FDCPA is unsettled by the Supreme Court or a precedential
decision of the relevant court of appeals, debt collectors can’t
escape a district court’s finding of FDCPA liability under the
bona fide error defense by pointing to the persuasive authority
they relied on at the time to justify their conduct. We leave for
another day whether the defense “protects a debt collector from
liability for engaging in conduct that was expressly permitted
under the controlling law in effect at the time, but that is later
prohibited after a retroactive change of law.” Oliva v. Blatt,
Hasenmiller, Leibsker & Moore, LLC, 825 F.3d 788, 789 (7th
Cir. 2016), reh’g en banc granted (Aug. 23, 2016). That’s not
this case.
The district court decisions NRA relied on haven’t been
abrogated with regard to the legality of barcodes under the
FDCPA. But a district court’s decision, whether published in a
reporter or not, binds only the parties in that case and “no judge
in any other case.” Gould v. Bowyer, 11 F.3d 82, 84 (7th Cir.
1993). “A decision of a federal district court judge is not
binding precedent in either a different judicial district, the same
judicial district, or even upon the same [district] judge in a
different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7
(2011) (citation omitted). “[T]here is no such thing as ‘the law
of the district’” and “stare decisis does not compel one district
court judge to follow the decision of another.” Threadgill v.
Armstrong World Indus., Inc., 928 F.2d 1366, 1371 (3d Cir.
1991) (internal quotation marks and citation omitted).
NRA’s (assumedly) mistaken interpretation of the law is
inexcusable under the FDCPA’s bona fide error defense
irrespective of how many district court decisions supported it at
the time. The District Court’s unchallenged finding that NRA
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violated the FDCPA stands accordingly. We’ll reverse judgment
as a matter of law for NRA on Daubert’s FDCPA claim and
remand with instructions to enter judgment for Daubert and to
calculate damages under 15 U.S.C. § 1692k(a). The court
“shall” weigh the factors in subsection (b)(1) in so doing,
including the “frequency and persistence of [NRA’s]
noncompliance,” the “nature of such noncompliance,” and the
“extent to which such noncompliance was intentional.” Id. §
1692k(b)(1).
IV
For these reasons we’ll affirm in part and reverse in part.
We’ll affirm summary judgment for Daubert on his TCPA claim
but reverse judgment as a matter of law for NRA on Daubert’s
FDCPA claim. We’ll remand that claim with instructions to
enter judgment for Daubert and to calculate FDCPA damages.
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