Collector - August 2018 - 49
such attachments are more likely not to be
opened and delivered than to be opened."
The district court also opined that
the average user is less likely to open an
email from an unknown sender, since
security agencies warn that suspicious
email attachments are a common tool for
attackers, and there is no evidence the
consumer should have recognized the
agency as a trusted sender.
Now, the Seventh Circuit Court of Appeals
will have its work cut out for it after receiving
amicus briefs from both ACA and the BCFP
raising a host of different considerations related
to the use of electronic delivery of validation
notices, particularly since the bureau has been
for years considering rules governing the same.
While it remains to be seen what the future
will hold for the BCFP's debt collection
rulemaking, ACA recognizes that the courts
in the judicial system can provide another
avenue for gaining FDCPA clarity to rein in
FDCPA litigation abuse. Therefore, given
that communication technologies have
changed dramatically since the FDCPA was
first adopted in 1977 and more and more
debt collectors use (or want to use) email in
their collection operations, ACA submitted
its "friend of the court" brief to the Seventh
Circuit seeking to establish that secure
email is a legitimate means of providing the
notifications required by Section 1692g, or
at least to obtain guidance for the accounts
receivable management industry as to how
secure email may be engineered to comply
with the act.
In doing so, ACA asked the Seventh Circuit
to reverse the district court's decision and
"establish that email can be 'written notice'
within 15 U.S.C. Section 1692g(a)'s meaning,
and that the statute applies to email in the
same way that it applies to postal email."
ACA argued that without such a ruling
or without clear answers on how a debt
collector can comply with the requirement
that it "send the consumer a written notice"
using email, debt collectors will be "less likely
to use email for their initial communication
with a consumer, which will drive up the cost
of collection-a cost that will ultimately be
borne by the consuming public."
The BCFP argued that the collection
agency could not use email to comply
with the FDCPA's written validation
notice requirement if it did not satisfy the
requirements of the E-SIGN Act, including
making certain disclosures to a consumer
about the use of electronic records and
obtaining the consumer's prior consent to
such use. Although neither the collection
agency nor the consumer raised the E-SIGN
Act as an issue before the district court
or in their respective appellate briefing,
the BCFP noted in its amicus brief that
the record in the case "suggest[s] that [the
collection agency] did not comply with the
E-SIGN Act itself."
The BCFP also acknowledged in its
amicus brief that "the five-day window
within which a debt collector must provide
written validation notices may not afford debt
collectors sufficient time to make compliance
with the E-SIGN Act a viable option," but
such short time frame "does not justify
ignoring" it "absent a regulatory exemption."
ACA's efforts to proactively support
the industry are part of ACA's Industry
Advancement Program and are made
possible by funding through ACA's Industry
Advancement Fund. ACA will continue to
provide more information to its members as
the Lavallee case progresses.
If you want to read more about the most
recent significant judicial decisions involving
the accounts receivable management
industry, ACA members can always find
concise case summaries at acainternational.
Karen Scheibe Eliason is ACA International's