Forget About It: FDCPA Class Action Asserting Emails Sent at Inconvenient Time Will Fail

Consumer attorneys are filing new class action lawsuits asserting that debt collector emails are being sent before 8 a.m. or after 9 p.m. in violation of the FDCPA. While debt collectors must adhere to the time restrictions for sending debt collection emails, it will be impossible for the consumer attorneys to certify any FDCPA class action asserting that a debt collector sent emails at an inconvenient time because email providers routinely delay the delivery of emails. As discussed below, this delay between when a debt collector sends an email and when the consumer receives the email necessitates an “individualized inquiry” to establish standing for each potential class member which will defeat any class action.  

The Consumer Financial Protection Bureau articulated in Regulation F that debt collection email communications violate 1692c as inconvenient if they are sent before 8 a.m. and after 9 p.m. local time for the consumer. Regulation F further provides that “an electronic communication occurs when the debt collector sends it, not, for example, when the consumer receives or views it.”   

Consumer attorneys are now asserting putative FDCPA class action lawsuits against debt collectors premised on the time that an email was received by the consumer. However, the time that a consumer receives an email is often different from the time that the email was sent by the debt collector, sometime by many hours.