In Hinderstein v. Advanced Call Ctr. Techs., No. 15-100017 (C.D. Cal. Feb. 27, 2017), a case alleging violation of the federal Fair Debt Collection Practices Act and California’s Rosenthal Fair Debt Collection Practices Act before the United States District Court for the Central District of California, the Court found that a relatively high call volume by itself is not a violation of the FDCPA without the requisite intent to harass.
Under 15 U.S.C. section 1692d(5) of the FDCPA, a debt collector can be liable for “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” In Hinderstein, the plaintiff had been delinquent on his retail store credit card and had his account sent to the defendant for collections. Over an 18-day period in the spring of 2015, the defendant placed 49 calls to Hinderstein, with an average of almost three calls per day. Hinderstein then sued.
Prior case law has not provided a bright-line rule as to what call volume definitively constitutes a violation of the provision. Although some courts in the last decade have denied summary judgment under the FDCPA for defendants responsible for heavy call volumes, courts generally will look at the totality of the circumstances in determining whether a defendant has violated the FDCPA.
In Hinderstein, the Court recognized that “the number of calls [did] seem relatively high.” However, it found no violation where the defendant: (1) placed all calls between 8:00 a.m. and 9:00 p.m.; (2) never made more than five calls per day; (3) allowed at least 90 minutes between calls; (4) never called Hinderstein’s family, friends, or place of employment; (5) only reached Hinderstein once; and (6) respected Hinderstein’s no-call request immediately. The Court also noted that, prior to the no-call request, Hinderstein had not notified defendant that he felt harassed. With these factors in mind, the Court concluded that there was no violation of either the FDCPA or the Rosenthal Act.
Creditors under the Rosenthal Act and debt collectors under the FDCPA should still be cautious about their call volume to minimize risk and consumer abrasion. However, such entities can be comforted by this ruling that persistent outreach in and of itself is not a per se violation, and that context is the most important consideration.
Troutman Sanders LLP has unique, industry-leading expertise with the FDCPA and the Rosenthal Act, with substantial experience advising companies regarding their compliance strategies. We will continue to monitor judicial interpretation of the FDCPA and similar state laws such as the Rosenthal Act, in order to identify and advise as to potential risks.