A collection agency that late last month lost an appeal in the Third Circuit has filed a petition for a rehearing, according to ACA International. The case involved an account number being visible through the clear window of an envelope.
A three-judge appellate panel, in a precedential opinion, unanimously overturned a district court ruling in Douglass v. Convergent Outsourcing on August 28. The question before the Court was whether a visible account number ran afoul of the FDCPA’s section 1692f(8).
On Wednesday, the collection agency filed a petition for rehearing en banc (before all judges in the circuit) or by another three-judge panel.
Convergent sent a collection letter for a past due mobile phone bill with the debtor’s account number – a number used internally, which the defendant referred to as a tracking number — visible through the transparent address window of an envelope. Convergent had previously won a summary judgment in the Eastern District of Pennsylvania ruling that the account number was “benign language.”
But the Third Circuit panel disagreed, writing, “The account number is a core piece of information pertaining to Douglass’s status as a debtor and Convergent’s debt collection effort. Disclosed to the public, it could be used to expose her financial predicament. Because Convergent’s disclosure implicates core privacy concerns, it cannot be deemed benign.”
The panel overturned the district court’s decision and ruled that the disclosure did violate the FDCPA.
In its rehearing petition, Convergent argues that the Third Circuit panel erred in concluding that the tracking number could have disclosed that the letter was pertaining to debt collection. The company wrote, “every shred of evidence presented to the District Court revealed that the number was innocuous, Douglass was not harmed by the disclosure of the sequence of letters and numbers, and neither Douglass nor her ’expert’ could provide any manner in which Douglass could be harmed by such disclosure.”
The appellate panel had noted that the question before them may have been made easier as the plaintiff was seeking only statutory damages. It therefore did not need to make a determination on actual damages, leaving it up to the district court to decide how to proceed in the class action.
The company asserts in its rehearing petition that the “issue of whether the information in question was benign requires a factual determination.”