Opinion
05 Civ. 5062 (PKC).
July 7, 2006
MEMORANDUM AND ORDER
This is a suit by Tammy Sorey against Computer Credit, Inc. for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. The action was filed on June 29, 2005 alleging that she was a consumer and that, in connection with efforts to collect an alleged debt due Lenox Hill Hospital, defendant violated sections 1692g and 1692e(10) of the FDCPA. In an amended complaint filed on November 28, 2005, the plaintiff confined her allegations to the print quality, presentation and font sizes of the notice given by defendant pursuant to section 1692g. No allegations have been made as to the content of the debt collection notice. All discovery in this action concluded on December 31, 2005. Neither party demanded a jury and, on January 27, 2006, I set the matter down for a bench trial for June 30, 2006. In an order dated June 6, 2006, I denied plaintiff's motion for class certification.
At the June 30 bench trial, neither side elected to call live witnesses. The parties offered into evidence, without objection, various documents, depositions and an expert report. This Memorandum and Order sets forth my Findings of Fact and Conclusions of Law. For the sake of understanding, I begin with a brief overview of the law.
Section 1692g requires that within a specified time period (five days of the initial communication) the debt collector send notice to the consumer setting forth five items of information: the amount of the debt and the name of the creditor, together with three statutorily required notices of rights, including a statement of the effect of a consumer's failure to dispute the validity of the debt. A notice which fails to do so violates section 1692g and possibly section 1692e(10), which prohibits deceptive and misleading debt collection practices.
In determining whether a debt collection notice violates section 1692e(10), the notice is judged by the "least sophisticated consumer" test. See, e.g., Greco v. Trauner, Cohen Thomas, 412 F.3d 360, 363 (2d Cir. 2003); Schweizer v. Trans Union Corp., 136 F.3d 233, 237 (2d Cir. 1998); Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). The test is also applied to assess the adequacy of a validation notice under section 1692g. See Greco, 412 F.3d at 360. The "least sophisticated consumer" test is an objective standard that "ensure[s] that the FDCPA protects all consumers, the gullible as well as the shrewd." Clomon, 988 F.2d at 1318. In applying this standard, a court is required to determine whether the collection letter "can be reasonably read to have two or more different meanings, one of which is inaccurate." Russell v. Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996) (citing Clomon, 988 F.2d at 1319). Only reasonable interpretations are to be considered and the "least sophisticated consumer" test does not require acceptance of every "every bizarre or idiosyncratic interpretation by a debtor of a creditor's notice." Schweizer, 136 F.3d at 237 (citation omitted); accord Clomon, 988 F.2d at 1320.
In Swanson v. Southern Oregon Credit Serv., Inc., a decision cited with approval in Clomon, 988 F.2d at 1319, the Ninth Circuit held that a debt collection notice violates section 1692g when it is not "large enough to be easily read and sufficiently prominent to be noticed . . . by the least sophisticated debtor." 869 F.2d 1222, 1225 (9th Cir. 1988). Whether a particular notice satisfies this standard is a fact-intensive question. See, e.g., Rabideau v. Mgmt. Adjustment Bureau, 805 F. Supp. 1086, 1093 (W.D.N.Y. 1992) (form of notice violated the FDCPA because the printing was in "a light grey ink on a light shade of grey computer paper" and in "barely 7 point" font); Smith v. Financial Collection Agency, 770 F.Supp. 232, 238 (D.Del. 1991) (notice was "not microscopic, illegible or otherwise onerous to read.").
FINDINGS OF FACT
1. In this case, plaintiff does not contend that any information required to be stated by section 1692g has been omitted or that the content of any information or statement is misleading. Rather she contends that "Defendant's notice on the reverse side of its computer generated letters is printed in very faint ink as opposed to the much darker black ink used on the front of the letter for Defendant's demand for payment. Moreover, the printed material on the front bleeds through to the back of the letter, further obscuring the required notification." (P. Mem. at 5) For these reasons, she asserts that the notice is not easily read and, hence, is non-compliant, deceptive and misleading.
2. The term "bleeding" is used by the parties in this case to refer to the potential inability to read one side of a two-side document by reason of the printing on the other side of the document. For example, if both sides of a paper of ordinarily weight contained dense text in dark print, there could be the potential of one side obscuring the other.
3. At trial, plaintiff offered no expert testimony to support her claim nor was she required to do so. Plaintiff offered no evidence comparing the shading, ink color, font, font size, paper stock or other characteristics used on the notice with other consumer communications, e.g., newspapers, advertising circulars, IRS forms. Plaintiff relies principally on the document itself (Plaintiff's Ex. 1) and the testimony of non-party witness Tammy Hubbard (Plaintiff's Ex. 3), an employee of a printer utilized by defendant.
In arguing that the notice meets the "least sophisticated consumer" standard, defendant unhelpfully offered precisely two publications: Global Finance, a glossy magazine with a single issue price of $30 (Defendant's Ex. 3), and the Wall Street Journal (Defendant's Ex. 4). Neither bears relevant similarities to the notice at issue.
4. The debt collection notice at issue is printed on 8 1/2 by 11 inch paper. The color of the paper stock is white. From the somewhat disjointed deposition testimony of Ms. Hubbard, I conclude that the paper is of 20 lbs. weight. Much of the front side of the notice is in black high-low block letter print. The first two items of a section 1692g compliant notice — the amount of the debt and the identity of the debtor are on the front side and are printed in dark high-low block letter print. The front side of the notice also advises the debtor that "[u]nless you notify CCI to the contrary, we will assume the amount due is correct." In a different thinner and slightly smaller font, the following words appear in solid capital letters: "PLEASE SEE IMPORTANT NOTICE ON BACK". Because it is in solid capital letters in a slightly different font and surrounded with adequate white space, it is prominent and easily read.
5. On the back side of the notice are three blocks of text, each with a centered title in solid capital letters: "FEDERAL NOTICE TO ALL CONSUMERS", "NOTICE TO TEXAS CONSUMERS" and "NOTICE TO CALIFORNIA CONSUMERS."
6. The "FEDERAL NOTICE TO ALL CONSUMERS" contains the three other statements required by section 1692g, including the fact that any dispute as to the validity of the debt or any portion thereof must be presented in writing within 30 days, that the debt will be presumed to be valid unless disputed in this manner and that the debtor may obtain the name and address of the original creditor if different from the named creditor. The text is in high-low, rather than solid capital letters. It is the first of the three blocks of text. The three blocks of text appear on the upper two thirds of the back side of the notice. The bottom third of the front side is designed to be torn and returned with payment.
7. The words on the back side of the debt collection notice are in fainter shading than on the front side and are printed in 35% of the darkest shade utilized on the front side. The font size appears to be somewhat larger than that used on the front side and appears to be at least a 12-point font. According to defendant's expert, once the choice was made to print on both sides of the page, avoidance of a "bleeding" problem needed to be considered, and "having 100 percent laser black ink on both sides of a page makes both sides more difficult to read." (Defendant's Ex. 2)
8. Plaintiff, the party with the burden of proof, offered no evidence of the conditions in which the least sophisticated consumer could be reasonably expected to review the notice. Busy people are free to read their mail in a wide array of circumstances, including, but not limited to, while standing on a dimly lit subway platform. However, I conclude that such a reading practice would be idiosyncratic. One could reasonable expect that the least sophisticated consumer would examine the notice in an environment with lighting no greater than a single low wattage incandescent bulb at ceiling height with the document placed on an approximately horizontal surface such as on top of a pile of other papers. The realm of the expected practices of consumers of all levels of sophistication, including the least sophisticated, include but are not limited, to daylight reading without artificial light, night time reading with a table lamp and reading in all lighting conditions in a chair, sofa or bed.
9. I find that, taking into account all attributes of the notice and all portions and elements of the notice (Plaintiff's Ex. 1), it is easily read in its entirety by the least sophisticated consumer.
10. The sixteen-page telephonic deposition testimony of Ms. Hubbard, who is not offered as an expert, that "it's possible to have 100% black laser ink on both sides and maintain readability" (Plaintiff's. Ex. 3 at 12-15) does not address such basic questions as how much typed text would be on either side and whether the typed-text on the two sides would be in the same corresponding location on the page. There is no indication that she had the particular notice at issue in mind in her response (which was not marked as a deposition exhibit).
I note that the typeface on the back side of Plaintiff's Ex. 1, the actual, original notice which was transmitted to plaintiff Tammy Sorey, is in a noticeably darker shade, then that of an exemplar offered by defendant (Defendant's Ex. 5). This circumstance reinforces my prior decision to deny class certification in this case. See Order dated June 6, 2006.
11. Ms. Sorey, the plaintiff, is employed as a traffic agent by the New York City Police Department. She testified that wearing her reading glasses, she would be able to read both sides of the collection notice at issue. (Defendant's Ex. 6. at 41) Of course, under the least sophisticated consumer test — an objective standard — her testimony as to her own ability to read the notice ought not be given undue weight.
12. I reject defendant's assertion that the action was brought in bad faith or for the purposes of harassment. The action is not objectively baseless.
13. Plaintiff's counsel did not pursue the action in a vexatious manner but rather cooperated in bringing the action to a swift, just and prompt resolution.
CONCLUSIONS OF LAW
1. The Swanson standard applies in this case and, thus, I have considered whether the debt collection notice transmitted by defendant to plaintiff was "easily read and sufficiently prominent to be noticed . . . by the least sophisticated debtor" taking into account all factors bearing upon presentation and legibility, including but not limited to, the font, font size, ink color, shading and the color and weight of the paper stock. To prevail, plaintiff need only prove that some portion of the required information is not easily read by the least sophisticated consumer.
2. Whether the existing state of the art and science would have permitted a reasonable debt collector to print and transmit a notice that would have been more easily read than the one actually used is not dispositive. The motivation of the debt collector and its printer in making artistic, creative, graphic and economic choices can neither save a notice that violates the statute nor condemn one that complies with the statute.
3. I conclude that plaintiff has failed in her burden of proving that the notice is deficient under section 1692g or false or deceptive under section 1692e(10).
4. The position asserted by plaintiff was neither in bad faith nor for the purposes of harassment within the meaning of section 1692k(a)(3). It is not objectively baseless. The claim presented a fair ground for litigation and defendant is not entitled to attorneys' fees and expenses.
5. I find for the defendant and against the plaintiff on the entirety of plaintiff's claims. Defendant's application for attorneys' fees and expenses is denied.
The Clerk is directed to enter final judgment for the defendant.
SO ORDERED.