Is Consent Overrated?

SHERRY F. COLB

Cornell law professor Sherry F. Colb argues that while consent is an important and necessary condition of many activities in which adults engage, it does not necessarily follow that consent is a sufficient condition as well. Colb describes some circumstances in which the apparent consent of the parties does not make the result desirable or good.

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Cagayat v. United Collection Bureau, Inc.

Docket: 19-3431

Opinion Date: March 9, 2020

Judge: Donald

Areas of Law: Consumer Law

Cagayat alleges that UCB sent her two consumer debt collection letters that “featured a large glassine window, through which a paper page with [Cagayat]’s name and address is visible.” Written on the inward side of the paper page inside the envelopes are the words “Collection Bureau.” According to Cagayat, those words “bleed through the paper page and are clearly visible . . . to the naked eye.” She claims that someone looking at the envelopes in normal lighting can clearly read, without unusual strain or effort, the message: “United Collection Bureau, Inc. Compliance Department.” Cagayat claims that her daughter saw the letters and recognized that a debt collector sent them. Cagayat sought damages under the Fair Debt Collection Practices Act, 15 U.S.C. 1692- 1692p, and the Ohio Consumer Sales Practices Act. The Third Circuit reversed the dismissal of the suit, finding that the exhibits Cagayat attached to her complaint (copies of the letters) do not utterly discredit the factual allegations central to her claim and that her factual allegations give rise to a plausible violation. Applying the least sophisticated consumer standard, the fact that the words “Collection Bureau” are upside-down and backward does not discredit Cagayat’s assertion that the language can be clearly read without unusual effort.