Florida District Court Clarifies "Communicating With" Consumers via Email Under FDCPA and FCCPA

A recent summary judgment decision in Nina Quinn-Davis vs. TrueAccord Corp., Case No. 1:23-cv-23590-LEIBOWITZ/REID (S.D. Fla. Nov. 20, 2024), addresses core merits issues in Florida Consumer Collection Practices Act (FCCPA) claims based on debt collection emails. This Holland & Knight alert delves into the U.S. District Court for the Southern District of Florida's opinion and its implications for the individual consumer, class action and mass arbitration claims filed under the FCCPA based on email communications concerning debts.

Case Background

The FCCPA under Florida Statutes, Section 559.72(17), prohibits a person collecting a consumer debt from "[communicating] with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor's time zone without prior consent of the debtor." Moreover, the Fair Debt Collection Practices Act (FDCPA) under Title 15, U.S. Code, Section 1692c(a)(1), prohibits a debt collector from "communicating with a consumer in connection with the collection of any debt … at any unusual time or place known or which should be known to be inconvenient to the consumer." Under both the FCCPA and FDCPA, a debt collector can assume that the convenient time for communicating with a consumer is after 8 a.m. antemeridian and before 9 p.m. postmeridian, local time, at the consumer's location (15 U.S.C. § 1692c(a)(1)).

TrueAccord, a debt collection company, sent a debt collection email to Nina Quinn-Davis at 8:23 p.m.; the email was delivered to her inbox at 10:14 p.m.; and the email was first opened at 11:44 a.m. on Nov. 30, 2022. Quinn-Davis filed a putative class action complaint against TrueAccord Corp. alleging that the email violated the FDCPA and FCCPA based on the time it was sent – thus, it was immaterial for the court to assess when it was delivered and ultimately opened.

The case raised a fundamental question: Precisely when does a prohibited communication, specifically an email communication, occur under the FDCPA and FCCPA?

Court's Interpretation and Ruling

The court's analysis centered on the interpretation of "communicate with a consumer" under the FCCPA and FDCPA within the context of email communication. It concluded that for a debt collector to have "communicated with" a consumer, the information regarding the debt must be actually transmitted or transferred to the consumer, thereby triggering potential liability under the FDCPA and FCCPA. Merely sending an email does not suffice.

Applying this interpretation, the court found that TrueAccord did not communicate with Quinn-Davis in violation of the acts because the email was sent within hours presumed to be convenient and was only opened by Quinn-Davis the following day at a time that was not inconvenient. Consequently, the court granted TrueAccord's motion for summary judgment.

Of note, the court reached this conclusion without considering the Consumer Financial Protection Bureau's (CFPB) official interpretation providing that a debt collector "communicates with" a consumer when the debt collector "sends" an electronic communication. See CFPB, Official Interpretation of 12 C.F.R. Part 1006.6(b)(1)(i)(1) (Regulation F). In doing so, the court noted that it was not bound by or required to defer to the CFPB's interpretation under Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), which overruled the Chevron Doctrine outlined in Chevron USA, Inc. v. Nat'l Res. Defense Council, 467 U.S. 837 (1984)).

Implications and Takeaways

The ruling underscores the limitations of the FCCPA and FDCPA protections in the context of email communications and provides several critical points for businesses:

1. The Communication Must Be a Debt Collection Communication: The FCCPA and FDCPA concern only debt collection communications, and the parties agreed in Quinn-Davis that the subject email was a debt collection email. However, as an initial matter, businesses should review the subject communication to evaluate whether it was, in fact, a debt collection communication as opposed to a purely informational communication, which cannot be a violation of these statutes.
2. Actual Receipt of Communication: The court's decision highlights the importance of the actual transmission and receipt of communication in determining liability under the FDCPA and FCCPA. This interpretation supports that the mere act of sending an email or the email being delivered unread to the recipient's email inbox does not constitute communication under the FCCPA and FDCPA. Based on the district court's decision, communication with the consumer/debtor only occurs upon the opening and reading of the email. It must be determined whether recipient actually receives the email and reads it between 9 p.m. and 8 a.m. in the debtor's time zone.
3. Calls Versus Emails: While traditional interpretations of the FDCPA and FCCPA have focused on preventing inconvenient or harassing phone calls, the court's ruling acknowledges the different nature of email communications, which do not intrude in the same immediate and disruptive manner as phone calls. The court said it best: The FDCPA's safe harbor was aimed at protecting consumers from after-hours noisy telephone rings – not emails sitting in one's email box (silently) overnight.
4. Evidence May Be Necessary to Support a Dismissal: TrueAccord answered Quinn-Davis' complaint, and the court ruled in TrueAccord's favor on a motion for summary judgment. Stated differently, TrueAccord prevailed only after presenting an affidavit supporting when the subject email was sent, delivered and first opened. The court noted that Quinn-Davis did not submit a counter affidavit, nor did she file a declaration authenticating the email that was the subject of her complaint. These facts indicate that it may be challenging for debt collectors to dispose of similar claims raised under the FCCPA and FDCPA at a prior stage in the litigation such as a motion to dismiss. Thus, companies should continue to evaluate their terms and conditions for applicable arbitration, class waivers and choice of law provisions that may expedite the resolution of similar cases.

The Quinn-Davis vs. TrueAccord Corp. decision is well reasoned and has the potential to disrupt what has become a cottage industry of litigation in Florida. With respect to individual claims, the decision (and hopefully others that follow the reasoning in it) should force plaintiff's counsel to perform due diligence before filing new claims. They should be required to determine what happened for each prospective plaintiff – when emails were received and read – and limit future filings to claims involving emails received overnight but not read until after 9 p.m. and before 8 a.m. For clients currently defending these claims, there is a basis for insisting on dismissal of claims on which the emails were only read after 8 a.m. the next morning.

The threat of class certification has been claimed to provide plaintiffs' leverage in settlement of their individual claims, but the Quinn-Davis analysis reduces the threat. Putative class members' claims turn on individualized analysis of when emails were sent to them, when these emails arrived in the class member's email inbox and when they read the email. These same challenges also complicate plaintiffs' counsel's efforts to pursue mass arbitrations based on these FCCPA claims.

Holland & Knight's Financial Services Litigation Team aggressively defends companies against individual and class action litigation brought under the FCCPA and FDCPA. In addition, Holland & Knight's Financial Services Regulatory Team assists clients with compliance questions.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.