EDITOR’S NOTE: This article is part of a series that is sponsored by WebRecon. WebRecon identifies serial plaintiffs lurking in your database BEFORE you contact them and expose yourself to a likely lawsuit. Protect your company from as many as one in three new consumer lawsuits by scrubbing your consumers through WebRecon first. Want to learn more? Call (855) WEB-RECON or email admin@webrecon.net today! Thanks to WebRecon for sponsoring this series.
DISCLAIMER: This article is based on a complaint. The defendant has not responded to the complaint to present its side of the case. The claims mentioned are accusations and should be considered as such until and unless proven otherwise.
I’m not sure if this should be filed in the “no good deed goes unpunished” folder or the “damned if you do and damned if you don’t” folder or the “catch-22” folder, but it definitely deserves to go in at least one of those. A collection operation is facing claims it violated the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act for, among other claims, using a tone in emails that was too “friendly and informal.”
The background: During the course of three weeks last month, the plaintiff allegedly received 10 emails and seven text messages from the defendant.
- In those communications, the defendant was accused of burying the mini-Miranda disclosure “at the very bottom of lengthy emails after unrelated content” which allegedly rendered the disclosure “not clear or conspicuous.”
- The tone of the emails was “friendly and informal” which allegedly overshadowed that the communications were attempts to collect on a debt.
- Get this: the unsubscribe option was at the top of the email, which was apparently a problem because it was in a small font and also not clear or conspicuous.
- The volume of communications, which, based on the total number that were sent and the timeframe in question appeared to conform with the provisions set forth in Regulation F were nonetheless “excessive” and created “a pattern of harassment and oppression.”
- All of this was enough to “likely mislead” a least sophisticated consumer about the nature of the communications and their rights under federal law, according to the complaint.
The claims: The defendant is accused of violating Sections 1692e, 1692e(11), and 1692d of the FDCPA as well as Section 1006.6(d)(4) of Regulation F by using false or deceptive representations, failing to make the debt collector disclosure clear and conspicuous, engaging in conduct intended to harass the plaintiff, and failing to provide a clear and conspicuous opt out. (It should be noted that the plaintiff did not include any of the emails or text messages as exhibits in the complaint.)
- The defendant is also accused of violating Section 227b(1)(A)(iii) of the TCPA by using an automated telephone dialing system or pre-recorded voice to send text messages to the plaintiff without the plaintiff’s consent.
