appeal on behalf of the class, it is not so broad that it can be read to release her class claims."
As you may recall, the FDCPA provides in part "without the prior consent of the consumer given directly to the debt collector . . . a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer [or] his attorney . . . ." 15 U.S.C § 1692c(b). In addition, the FDCPA prohibits the use by a debt collector of "any false, deceptive, or misleading representation or means in connection with the collection of any debt," and requires a debt collector to pay fees "in any case of any successful action . . . [for] the costs of the action, together with a reasonable attorney's fee as determined by the court." 15 U.S.C. §§ 1692e, 1692k(a)(3).
As part of its analysis, the Ninth Circuit referenced the Federal Trade Commission's ("FTC's") commentary on permissible and impermissible conduct, noting in part that, according to the FTC, a debt collector may not send written communications that are easily accessible to third parties. Thus, the Court concluded that the debt collector's sending the letters in "care of" the employers without consent was a per se violation of the FDCPA. In so doing, the Ninth Circuit pointed out the likelihood that the letters would be viewed by third parties, and that, as a debt collector, the defendant "should have known of the real possibility that a letter to a debtor's place of employment . . . would be viewed by someone other than the debtor."
Ralph T. Wutscher
McGinnis Wutscher LLP
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