WHAT CAN BE DONE?: Everyone’s Asking Me About Options in Light of Hunstein– Here’s a Few Musings

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Guys I’m a TCPA lawyer.

Nonetheless I’m famous for creative thinking and solving problems so everyone (apparently) wants the Czar’s take on how collectors and (maybe) servicers or collectors can and should respond to the crazy-important Hunstein ruling.

So here are some thoughts (not legal advice–just musings):

  1. Build consent provisions into contracts and other debt agreements: Express consent is an exception here. TCPAWorld knows a thing or two about express consent. It can be obtained–especially in the Eleventh–using adhesion terms. Think loss mit, forbearance, credit arrangements, website logins, app disclosures, whatever.  Be creative. Doesn’t help with past conduct (or does it?) but this should be a big help moving forward.
  2. Make sure you understand what vendors you’re using for outreach: Hunstein isn’t limited to demand letters folks. If you’re a collector sharing information with others to help you to collect debt–think outreach platforms and maybe even third-party hosted software platforms–you may be in harm’s way. Inventory your risk. Assess it. Ameliorate or accept as you see fit. But don’t be blind to the scope of this thing.
  3. Buy your vendors: Should be obvious. Take your vendors. Buy them. Now they’re not third-parties. Simple. (Separately, it might be a good time to be a debt collection solutions start up.)
  4. Don’t touch consumers in the Eleventh Circuit: Again, straightforward. The Eleventh Circuit case is only binding in the Eleventh Circuit. Other Circuits are unlikely to follow this ruling–especially now that everyone’s dander is up and amicus filings will come pouring in next time.
  5. Seek En Banc review: Again, pretty obvious. This ruling is pretty whacky. Good chance the Eleventh will take this up and reconsider en banc.
  6. Do NOT seek SCOTUS review (yet): SCOTUS just ruled in favor of robocallers (Facebook) and scam artists (AMG Capital Management ) in the last few weeks in the name of textualism. DO NOT TAKE THIS CASE TO SCOTUS. SCOTUS will uphold the textualist approach applied here. (i.e. you will lose and the problem will be a nationwide one not a regional one.) If SCOTUS is to review this the review should be limited to the Article III piece (see my article this morning.) A substantive appeal might be safely pursued eventually, but first industry needs to develop positive case law (preferably text based) in other jurisdictions to have a fighting chance.
  7. Look for test cases in other jurisdictions. Win them: Obvious. Try to develop textualist arguments.
  8. Legislative fix: The problem started with Congress and should be resolved there. Lobby. Relatedly–stop voting for non-lawyers for Congress. They suck at writing laws since, you know, they’re not lawyers.
  9. Settle cases or use the class action vehicle to neutralize risk: $500k class action cap folks. Think about it.
  10. Servicers and creditors should look holistically at state laws: It is axiomatic that some state laws extend certain provisions of the FDCPA to creditors and first-party servicing. But they are not monolithic. This ruling won’t hurt servicers or creditors the way it will hurt collectors. So don’t freak out unnecessarily. Freak out intelligently and start inventorying the laws that might actually apply to you.
  11. Chat with regulators. I have serious doubts that the CFPB or any other regulator is going to get on board with this industry-crippling ruling. But you should give them a call to make sure.

Always here to discuss. As the Czar of one whacky world to the inhabitants of another– stay safe out there FDCPAWorld.

 

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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