National Creditors Bar Association 2018 Spring Conference · Danielle Vugrinovich, Marshall Dennehy...

National Creditors Bar Association 2018 Spring Conference

JW Marriott, Austin, TXMay 16-19, 2018

We Don’t Know Where We Are, But We Are Making Really Good Time:

Keeping Up With Ever Changing Technology And The Conundrums It Presents

Presented by Tom Carter, Federal Trade Commission

Stephen Turner, Lewis Brisbois Bisgaard & SmithDanielle Vugrinovich, Marshall Dennehy Warner Coleman & Goggin, P.C.

Tom Carter, Senior Attorney in the FTC’s Southwest Regional Office in Dallas where from 1988 to 2000 he served as Regional Director of the office, recently received the FTC’s prestigious Lifetime Achievement Award for his 30-year tenure at the FTC. He currently coordinates an ongoing state/federal debt collection working group and is the national coordinator of the FTC’s Initiative to Combat Immigration Services Scams. Previously, Mr. Carter was sweep coordinator for OperationBig Fat Lie, a group of FTC enforcement actions against companies making false weight loss.

Stephen Turner, a partner at Lewis Brisbois Bisgaard & Smith, is the Chair of his firm’s national Consumer Litigation Defense and Financial Services Group. Mr. Turner has represented numerous financial institutions including mortgage brokers, payday lenders and national banks and has handled over 2,500 cases involving allegations of unfair debt collection practices from initial pleadings to trial and appeal. He has defended over 100 class actions involving allegations of unfair debt collection practices, violation of the TCPA, the FCRA and the California Penal Code.

Danielle M. Vugrinovich is shareholder in Marshall, Dennehey, Warner, Coleman & Goggin, P.C.'s Pittsburgh, PA office and dedicates a considerable portion of her practice to the defense of collectors and law firms regarding claims filed pursuant to the FCRA, FDCPA and the TCPA. She has significant experience litigating these issues both in state and federal court, providing consultation to debt collectors with respect to compliance with these Acts and has served as a speaker on these issues for the state bar and for national associations.

Legal DisclaimerThis information is not intended to be legal advice and may not be used as legal advice. Legal advice must be tailored to the specific circumstances of each case. Every effort has been made to assure this information is up-to-date. However, it is not intended to be a full and exhaustive explanation of the law in any area, nor should it be used to replace the advice of your own legal counsel.

Introduction

The Program Will Be Divided, Loosely, Into Four Parts

• Communication Technologies And The Legal Issues They Present• Technologies For Monitoring Calls• Update On The TCPA• A Brief Discussion Of Tools For Debt Buyers• Please note that at the end we will take advantage of Tom being here and have

a discussion regarding the initiation of open dialog by the FTC. Finally, we welcome your comments and questions at anytime throughout the presentation.

Legal Issues Arising From Evolving Communication Technology

The FDCPA does not preclude you from using any type of communication to collect a debt as long as it does not violate any of the sections of the Act.

Golden Rule

FDCPA Implications of Technology in Debt Collection • Issues To Consider When Using Social Media

– Harassment;– Disclosure to 3rd parties (writing on

FaceBook walls, Tweeting, etc.;– False, misleading or deceptive

statements; [FTC bulletin dated March 28, 2016]

– Contact with wrong individual due to pseudonym of "consumer";

– Disclosure that you are a debt collector;

– "g" notice for initial communication;– Before 8am/after 9pm; and,– Dealing with FDCPA violations and

related discovery issues with ESI.

FDCPA Implications of Technology in Debt Collection

• Robo Calls– Harassment;– Disclosure to 3rd parties;– Unusual time/place for

communication;– Before 8am/after 9pm; and,– Disclosure that you are a

debt collector.

FDCPA Implications of Technology in Debt Collection

• Text messages– Harassment;– Disclosure to 3rd parties;– False, misleading or deceptive statements;– Unusual time/place for communication;– Accuracy of information;– Disclosure that you are a debt collector;– "g" notice for initial communication; and,– Dealing with FDCPA violations and related discovery issues with ESI;

FDCPA Implications of Technology in Debt Collection

• Email– Harassment;– Disclosure to 3rd parties;– False misleading;– Unusual time/place for

communication;– Disclosure that you are a debt

collector;– "g" notice for initial communication; – Accuracy of information; and,– Dealing with FDCPA violations and

related discovery issues with ESI;

FDCPA Implications of Technology in Debt Collection

• Apps– Apps that block calls;– Dealing with FDCPA violations and related discovery issues with ESI

Helpful & Unhelpful (Dare We Say Cynical?)

Technology In The Collection Arena

Technology to Monitor Collectors

• Technology to Monitor Collectors– Software to pick up on certain key words

during calls– Software to track tones of voice of

collectors– ESI issues in defending collection actions– Slydial and Voicedrop

• Explanation as to how it works• Concerns and potential legal risks

Legal & Technological Developments in TCPA Litigation

Overview of Recent Supreme Court & Court Of Appeal Decisions

• HCI Decisions– Andrews-Ray v. Bluestem Brands, Inc.– Arora v Transworld Systems, Inc., No 15-CV-4941, 2017 WL 3620742 (N.D. Ill., 2017)– Schlusseberg v. Receivables Performance Management, LLC, No. CV 15-7572-(FLW), 2017

WL 2812884 (D.N.J.,2017)– Smith v. Stellar Recovery, Inc., No. 2:15-cv-11717, 2017 WL 955128 (W.D. Mich., 2017)– Pozo v. Stellar Recovery Collection Agency, Inc., No.8:15-cv-929-T-AEP, 2016 (M.D. Fl.,

2016)

FTC Initiative to Have Open Dialogue with Collection Industry

• Opening remarks by Tom Carter describing initiative and what FTC hopes to gain by it

• Open dialogue with attendees discussing concerns with regulatory issues• Open dialogue regarding FTC current issues