In Datta v. Asset Recovery Solutions, LLC, 2016 WL 3163142, at *5-10 (N.D.Cal., 2016), Judge Koh granted summary judgment to a debt collector who was sued under the Third Circuit’s glassine window theory in Douglass.
Notably, district courts in both the Central and Southern Districts of California have adopted the benign language exception. In Masuda v. Thomas Richards & Co., 759 F. Supp. 1456, 1466 (C.D. Cal. 1991), the district court rejected plaintiff’s argument that “the language ‘PERSONAL & CONFIDENTIAL’ ” and “the phrase ‘Forwarding and Address Correction Requested,’ ” which were printed on a debt collection envelope, violated the FDCPA. As the Masuda court noted, “Congress enacted § 1692f(8) simply to prevent debt collectors from using symbols on envelopes indicating that the contents pertain to debt collection.” Id. (internal quotation marks omitted). “Congress’ interest in protecting consumers, however, would not be promoted by proscribing benign language.” Id. In like manner, in Voris v. Resurgent Capital Servs, L.P., 494 F. Supp. 2d 1156, 1165–66 (S.D. Cal. 2007), the district court held that, “[g]iven that the trend of authority is to recognize the existence of a benign language exception to § 1692f(8),” “this court finds that the exception should apply.” Accordingly, in line with Masuda and Voris, and consistent with the other authority discussed above, the Court finds that the benign language exception applies here. b. Analysis Having determined that 15 U.S.C. § 1692f(8) contains a benign language exception, the Court also finds that the reference number and bar code at issue both fall within the exception’s reach. According to Defendant, “the reference number Plaintiff complains of was not the account number provided by the original creditor, but is a number that [Defendant’s] letter vendor assigned independent of the original creditor’s account number, and the number is only relevant to the letter vendor for purposes of determining undeliverable mail.” Def. Mot. at 1. Below the reference number is a bar code that, Defendant also contends, “is simply a[nother] means to track the letters internally by [Defendant’s letter] vendor.” Id. at 2. Neither this reference number nor bar code, Defendant contend, pertain to Plaintiff’s debt. Several pieces of evidence corroborate Defendant’s arguments. First, the Fishbein declaration states that “[t]he series of characters that appear above [Defendant’s] customers’ names… are unique identifiers assigned by [Defendant’s] letter vendor for purposes of tracking returned mail.” Fishbein Decl. ¶ 9. Defendant’s “letter vendor also places a bar code above its customers’ name which is visible through the glassine window of its envelopes which is a means to track the letters internally by its vendor.” Id. ¶ 12. Nothing in Fishbein’s declaration suggests that this reference number and bar code relate to or identify Plaintiff as a debtor. Moreover, Plaintiff has not challenged Fishbein’s statement that the reference number and bar code are used solely for internal tracking purposes by Defendant’s letter vendor. Second, the reference number in the instant case is ARSL/1/647509 694009370925 18361/000012983/45. ECF No. 79-2 at 15. It is visible through the glassine window envelope. Plaintiff’s delinquent account number is 5156250129573855. This delinquent account number is not on the envelope itself, is not visible through the glassine window, is in the body of Plaintiff’s letter, and can only be viewed when the letter is removed from the envelope. Moreover, during her deposition, Plaintiff acknowledged that the account number for her delinquent account ended in “3855.” ECF No. 79-5 at 11. In other words, the reference number at issue (ARSL/1/647509 694009370925 18361/000012983/45) is not Plaintiff’s delinquent account number (5156250129573855). As further support for this point, Plaintiff did not, in her deposition, provide any evidence that the reference number at issue related to her debt. She simply stated that, “I think it’s a number that… [Defendant] created,” and that, “[w]hen it’s coming from a debt collector, it has to be an account number from some place” Id. at 9. Plaintiff thus provided no factual basis for her belief that the reference number at issue had any relationship to her delinquent account number. In addition to the foregoing evidence, the legal authority also weighs in Defendant’s favor. No court has found FDCPA liability based upon symbols or characters on an envelope that are associated with a letter vendor and that do not identify the letter recipient as a debtor. . . .Gardner, McShann, and Gonzalez—three cases which mirror the facts here—are consistent with prior applications of the benign language exception. Nonetheless, Plaintiff challenges the above factual evidence and legal authority in two ways. First, Plaintiff contends that the Court should follow the Third Circuit’s holding in Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir. 2014). Second, Plaintiff contends that the reference number at issue contains information about her Social Security number. Both arguments are unavailing. . . .Douglass is inapplicable here. In Douglass, the delinquent account number and QR code that could reveal plaintiff’s name, address, delinquent account number, and debt amount could have been used to identify plaintiff as a debtor. Here, the envelope did not display Plaintiff’s delinquent account number, did not reveal Plaintiff’s debt amount, and thus did not identify Plaintiff as a debtor. Rather, the reference number and bar code here are used by Defendant’s letter vendor for internal tracking purposes. Indeed, in a declaration filed in support of Plaintiff’s summary judgment motion, Plaintiff’s counsel states that “[w]hen the barcode is scanned, the following information is displayed: ARSL/1/6474509”—which is simply a portion of the reference number at issue. ECF No. 80-3 ¶ 4. Again, nowhere in Plaintiff’s briefing or in any of Plaintiff’s exhibits has Plaintiff stated that either this bar code or the reference number could be used to identify Plaintiff’s delinquent account number, debt amount, or status as a debtor. As such, the issues about which the Douglass court was concerned—plaintiff’s “status as a debtor” and plaintiff’s “financial predicament”—simply do not apply here. 765 F.3d at 303. As an additional point, a number of courts have disagreed with Douglass to the extent that Douglass held that a delinquent account number—without an accompanying QR code that could reveal plaintiff’s name, address, delinquent account number, and debt amount—could create FDCPA liability. This Court need not reach this issue in the instant case, as the reference number and bar code at issue are for internal tracking purposes only and do not identify Plaintiff’s delinquent account number, debt amount, or status as a debtor. Nonetheless, as discussed below, when a delinquent account number is displayed without any additional information identifying an individual’s debt amount or status as a debtor, numerous courts have declined to impose FDCPA liability. . . .. . .As a final matter, Plaintiff makes much of the fact that the “number displayed on Defendant’s envelope contains a portion of [Plaintiff’s] [S]ocial [S]ecurity number.” Pls. Opp’n. at 10. The reference number at issue reads: ARSL/1/647509 694009370925 18361/000012983/45. During Plaintiff’s deposition, Defendant asked whether these digits “bear any relationship at all to [Plaintiff’s] [S]ocial [S]ecurity number.” ECF No. 79-5 at 15. Plaintiff answered “[n]o.” Id. Immediately after Plaintiff provided this response, the parties agreed to take a short recess. After the recess, Plaintiff changed her answer, and stated that three consecutive digits within the reference number coincided with three consecutive digits in her Social Security number. Id. Plaintiff confirmed that the rest of the reference number bore no relationship to her Social Security number. Plaintiff’s argument lacks merit for several reasons. First, Plaintiff has presented no evidence to demonstrate that this overlap in three digits was anything more than a mere coincidence. The reference number at issue is almost fifty characters and digits long. It is plausible that three digits within such a long reference number could coincide with three digits in any individual’s nine digit Social Security number. Second, Plaintiff was at first unable to identify the reference number as bearing any relationship to Plaintiff’s Social Security number during her deposition. . . .Third, the fact that three digits in the reference number coincide with three digits in Plaintiff’s Social Security number does nothing to reveal Plaintiff’s identity. Social Security numbers are nine digits long. There are likely thousands (if not hundreds of thousands) of Social Security numbers that include the three digits at issue. . . .Fourth, neither the original complaint nor the FAC in the instant case mentions that digits in the reference number overlapped with digits in Plaintiff’s Social Security number. Indeed, neither the original complaint nor the FAC even contains the words “Social Security.” It appears that Plaintiff only posited a Social Security number theory after Defendant’s counsel asked about the issue at Plaintiff’s deposition. Fifth, Plaintiff has cited no legal authority supporting her contention that displaying three digits of an individual’s nine digit Social Security number in a string of almost fifty characters and digits would violate the FDCPA. The Court has found none in its own research. In light of the other reasons listed above, the Court declines to tread new ground and impose FDCPA liability here. Accordingly, Defendant’s motion for summary judgment on the issue of whether displaying the reference number and bar code on Plaintiff’s debt collection letter envelope violates the FDCPA and RFDCPA is GRANTED. Plaintiff’s motion for summary judgment on this same issue is DENIED.