On January 22, the United States District Court for the District of Arizona found that a consumer had standing to pursue a claim under the Federal Debt Collection Practices Act. The case is Driesen v. RSI Enterprises Inc., No. 3:18-cv-08140-PCT-DWL (D. Ariz. Jan. 22, 2019). 

The plaintiff, Kimberly Driesen, received phone calls from RSI Enterprises Incorporated on February 27, 2018, at 10:12 a.m. and 11:18 a.m. In both calls, an RSI employee left Driesen the following message: “We have an important message from RSI Enterprises. This call is from a debt collector. Call 602-627-2301. Thank you.” Several days later, Driesen received a letter from RSI dated February 27, 2018, in which RSI stated that it was attempting to collect a debt and that any information obtained would be used for that purpose. In her lawsuit, Driesen alleged that RSI violated 15 U.S.C. § 1692e(11) by “failing to disclose in its initial communication with [her] that the communication was an attempt to collect a debt and any information obtained would be used for that purpose.” 

In considering whether Driesen had standing to bring an FDCPA claim against RSI, the Court looked to Spokeo v. Robins, 867 F.3d 1108 (9th Cir. 2017) (“Spokeo II”), and noted the following two-part test for determining whether a plaintiff has standing to bring a statutory claim: (1) whether the statute at issue was established to protect the plaintiff’s concrete interests (as opposed to purely procedural rights), and if so, (2) whether the procedural violations alleged by the plaintiff actually harm or present a material risk of harm to those protected interests. 

RSI asserted that Driesen lacked standing because her complaint lacked allegations of any informational violation, risk of financial harm, detrimental reliance, or actual tangible harm. By contrast, Driesen alleged that she suffered an injury upon listening to RSI’s initial voicemail because it “infringed upon her concrete interest in being reminded that any future communications with RSI will be adversarial in nature.”  

The Court ultimately agreed with Driesen. First, it held that 15 U.S.C. §1692e(11) protects more than mere procedural rights because its requirement that a debt collector include a warning that “the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose” is intended to allow consumers to determine a course of action in response to collection efforts by a debt collector. Second, the Court held that RSI’s failure to comply with this provision presented a material risk of harm to Driesen because it “created a risk that [Ms.] Driesen might volunteer information to her detriment during subsequent interactions with RSI.” 

Troutman Sanders will continue to monitor and report on developments in this area of the law.