A district court in the Eleventh Circuit has joined the Fifth and Eighth circuits, along with a host of district courts throughout the country, in adopting the “benign language” exception to Section 1692f(8) of the Fair Debt Collection Practices Act, and has dismissed a claim based on a collection letter with a visible barcode containing a debtor’s account number. The case is Efran Martell v. ARS National Services, Inc., 2016 U.S. Dist. LEXIS 154163 (S.D. Fla. November 3, 2016).
Under the FDCPA (15 U.S.C. § 1692), a debt collector “may not use unfair or unconscionable means to collect or attempt to collect any debt,” and the Act specifically prohibits “[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.”
Taken literally, this provision bars a debt collector from putting anything other than its own address, and possibly its name, on the outside of an envelope containing a collection letter. Because putting even the debtor’s name and address on the envelope would violate the literal words of the statute, thereby making it impossible to send a single collection letter, the Fifth and Eighth circuits, as well as a host of district courts, have adopted a “benign language” exception to Section 1692f(8), whereby language or symbols that do not infringe upon the FDCPA’s stated purpose – and which are not “unfair or unconscionable,” as required by Section 1692 itself – do not constitute a violation of the FDCPA. See Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 319 (8th Cir. 2004); Goswami v. Am. Collections Enter., Inc., 377 F.3d 488, 494 (5th Cir. 2004).
Noting that the Eleventh Circuit had not yet had the opportunity to adopt the “benign language” exception, the court in Martell nonetheless reasoned that it would do so, not only to avoid the absurd results flowing from a literal interpretation of the statute, but also because “an account number embedded in a barcode, as a string of alphanumeric characters, does nothing to implicate or identify [p]laintiff as a debtor for purposes of Section 1692f(8),” and thereby creates no injury-in-fact sufficient to confer Article III standing under Spokeo v. Robins. This blog’s further discussion of the Spokeo decision can be found here.
In holding that the disclosure of a debtor’s account number in a barcode did not violate the FDCPA, the court rejected the Third Circuit’s reasoning in Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d. Cir. 2014), which held that such a disclosure was not benign, and thus violated the FDCPA. The court reasoned that “[i]t is illogical for the Act to be concerned with the eventuality that an enterprising third party would obtain, investigate, and decipher an account number’s meaning when simply googling the return address would show that the recipient received a debt collection letter.”
The court’s decision in Martell joins the rising number of “envelope” decisions finding that visible barcodes containing only a debtor’s account number constitute “benign language” and therefore do not violate the FDCPA.