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Tag: E-Sign Act

Electronic Access to 1692g Validation Notice Not Good Enough

LAVALLEE v. MED-1 SOLUTIONS, LLC, No. 17-3244 (7th Cir. 2019).

The 7th Circuit affirmed a decision out of the Indianapolis Division of the Southern District of Indiana awarding summary judgment in favor of the plaintiff-consumer on their FDCPA claims.

The debt collector in this case sent messages to the plaintiff/debtor via email regarding alleged medical debt. The emails had links to a website where the plaintiff would have had to click a few links to download a .pdf file containing the validation notice required by 15 U.S.C. § 1692g(a) of the Fair Debt Collection Practices Act. The plaintiff never accessed the file (thus never receiving the notice) and the debt collector’s system knew the plaintiff never accessed the files.

The debt collector subsequently contacted the plaintiff and never sent any other validation notices.

Plaintiff, represented by Robert E. Duff, argued that the debt collector simply making the notice available electronically via a process the plaintiff would need to go through did not satisfy § 1692g(a) of the Act. The district court found in favor of plaintiff on summary judgment, and this 7th Circuit appeal followed.

The panel agreed with the district court that the plaintiff had standing under Article III of the U.S. Constitution and Spokeo.

As for the merits, the panel sided with plaintiffs that the emails were not communications for purposes of the FDCPA:

Everyone agrees that the November 12 phone conversation between Lavallee and a Med-1 employee was a “communication.” And if it was the initial communication, Med-1 was required to send Lavallee a validation notice within five days. Med-1 concedes that it did not. So to prevail on appeal, Med-1 must persuade us that its March and April emails were “communications” under the FDCPA.
As we’ve just explained, to qualify as a “communication” under the Act, a message must “convey[] … information regarding a debt.” Id. Med-1’s emails conveyed three pieces of information: the sender’s name (Med-1 Solutions), its email address, and the fact that it “has sent … a secure message.” The emails say nothing at all about a debt.
Med-1 insists that the emails should count as communications because they contain the name and email address of the debt collector. We disagree. Though we haven’t yet addressed the FDCPA’s definition of “communication,” the Sixth and Tenth Circuits have held that to constitute a communication under the Act, a message must at least imply the existence of a debt. In Brown v. Van Ru Credit Corp., the Sixth Circuit held that a message that didn’t “imply the existence of a debt” wasn’t a communication because “whatever information [was] conveyed [could not] be understood as `regarding a debt.'” 804 F.3d 740, 742 (6th Cir. 2015). In Marx v. General Revenue Corp., the Tenth Circuit considered a fax that didn’t “indicate to the recipient that [it] relate[d] to the collection of a debt” or “expressly reference debt,” and that could not “reasonably be construed to imply a debt.” 668 F.3d 1174, 1177 (10th Cir. 2011). The fax was therefore not a “communication” under the Act. Id.

Moreover, the process by which plaintiff would have had to go through was

There is a second and independent reason why the emails don’t measure up under § 1692g(a): They did not themselves contain the enumerated disclosures. To access the validation notice, Lavallee would have had to (1) click on the “View SecurePackage” hyperlink in the email; (2) check a box to sign for the “SecurePackage”; (3) click a link to open the “SecurePackage”; (4) click on the “Attachments” tab; (5) click on the attached .pdf file; and (6) view the .pdf with Adobe Acrobat or save it to her hard drive and then open it.
At best, the emails provided a digital pathway to access the required information. And we’ve already rejected the argument that a communication “contains” the mandated disclosures when it merely provides a means to access them. See Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872, 875 (7th Cir. 2000) (holding that a debt collector did not satisfy § 1692g(a) by providing a phone number that the debtor could call to obtain the required information).
Med-1 analogizes the information available through a hyperlink in an email to the information printed on a letter inside an envelope. The analogy is inapt.

Interesting note: the CFPB filed an amicus brief arguing that the debt collector failed to abide by the E-Sign Act, 15 U.S.C. §§ 7001 et seq. The CFPB argued that where a statute or regulation “requires that information … be provided or made available to a consumer in writing,” the E-Sign Act imposes conditions on the use of an electronic record to satisfy that disclosure requirement.

Here’s an excerpt from their brief explaining the basic requirement:

Under § 101(c), “if a statute, regulation, or other rule of law requires that information relating to a transaction or transactions in or affecting interstate or foreign commerce be provided or made available to a consumer in writing, the use of an electronic record to provide or make available (whichever is required) such information satisfies the requirement that such information be in writing if” various conditions are met. Id. Those conditions include the consumer’s “affirmative[] consent[] to such use”; the provision to the consumer of a “clear and conspicuous statement” informing her of her right to withdraw consent and to receive the disclosure “on paper or in nonelectronic form”; and a disclosure of the “hardware and software requirements for access to and retention of the electronic records,” along with the consumer’s electronic consent (or confirmation of consent) “in a manner that reasonably demonstrates that the consumer can access information in the electronic form.”