Breaking News: Second Circuit Court of Appeals Denies Request for Interlocutory Appeal in FDCPA Voice Message Case

The United States Court of Appeals for the Second Circuit has denied a request for an Interlocutory Appeal in the case of Halberstam v. Global Credit and Collection Corp. (U.S. District Court, ED, NY, 15-cv-5696 (BMC), (Second Circuit Court of Appeals Case No. 16-1563).  The issue presented by the original case under the Fair Debt Collection Practices Act (FDCPA) was whether a debt collector, whose telephone call to a debtor is answered by a third party, may leave his name and number for the debtor to return the call — without disclosing that he is a debt collector — or whether the debt collector must refrain from leaving callback information and attempt the call at a later time.

insideARM has written previously about this case. See our January 14, 2016 article here and our May 16, 2016 article here.

In a Memorandum, Decision and Order dated January 11, 2016 United States District Court Brian M. Cogan ruled that the message was, indeed, a FDCPA violation.

On May 5, 2016 the same Judge determined that the decision he rendered in the Halberstam case should be certified for an immediate interlocutory appeal.

Editor’s Note: Interlocutory actions are certified by courts when an issue presents a question of law that should be answered by an appellate court before a trial may proceed or to prevent irreparable harm from occurring to a person or property during the pendency of a lawsuit or proceeding. Generally, courts are reluctant to make interlocutory orders.

The one-page Order from the Second Circuit can be found here. The rationale given was: “immediate appeal is unwarranted. See Klinghoffer v. S.N.C. Achille Lauro Ed Altri–Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 921 F.2d 21, 23–25 (2d Cir. 1990).”

The critical language from the Klinghoffer opinion is:

“When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals ... may thereupon, in its discretion, permit an appeal to be taken from such order…”

insideARM Perspective

The rationale noted above does not provide much guidance on the Court’s thinking. Apparently the Court felt that the issue presented did not involve a “controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.”

ARM industry experts are surprised at the denial of the request for Interlocutory Appeal.  The issue is one that would clearly benefit from a decision from the Court of Appeals. Voice Messages have been the subject of much litigation, significant expense, and disparate direction. To use a common colloquialism, “The issue is clear as mud.”

The CFPB has an opportunity to enact rules to clear up the confusion. The CFPB Outline of Proposed Rules suggests that clarity may be forthcoming in the proposed rules.  Let’s hope that that the CFPB resolves the myriad of issues regarding voice messages.