Do you send your customers a courtesy email to tell them their electronic bill (“ebill”) is available, will soon be available, or can be accessed via a website link? Be careful – a new spate of lawsuits, including ever-dangerous class actions, is on the rise. The Florida Consumer Collection Practices Act (§559.55 et seq.) is intended to protect consumers from legitimately burdening or harassing collection calls, by limiting these communications to the hours of 8:00 a.m. through 9:00 p.m. The statute, however, is now being misused to convert routine email notification of available or upcoming ebills into potentially actionable, and expensive, improper debt collection notices.
Under the guise of “protecting consumers,” companies who email consumers about upcoming ebills are at risk of violating the statute, if the consumer receives the notification email before 8:00 a.m. or after 9:00 p.m. Should it matter that your email notice is not a collection communication? Or that your email is simply advising the consumer of the availability (or future availability) of the ebill? It should, but the statute doesn’t define what is and is not covered. Should it matter that your email notice is more like a letter, in that the time of receipt may be long after you hit send on the email, and thus the act of sending the email actually occurred within the permissible 8:00 a.m. – 9:00 p.m. window? Again, it should matter, but the statute lacks appropriate clarity. And what’s the harm really – your customer doesn’t have to read your email during off hours and is free to ignore or delete your email within seconds. Nevertheless, the statute provides for statutory damages of up to $1,000 per email (plus actual damages) and importantly, the consumer’s attorneys’ fees in bringing the lawsuit are taxed to your company. This is to say nothing of the expense and burden of what could be a bet-the-company class action if your company has thousands of customers and sends thousands of ebill notification emails.
So, what’s a well-intended company to do? Here are some practical tips. First, be sure that your customers have formally opted in to receiving email notice of ebills. Experienced attorneys can assist you in drafting opt-in language. Second, do your best to ensure that the emails are sent such that they are received between 8:00 a.m. – 9:00 p.m. Don’t forget that your customers may be located in a time zone different from you. Third, be sure not to include any debt collection or enforcement language in the emails, which could turn an otherwise innocuous email into a collection notice. Fourth, refrain from including a direct link to the actual bill in your ebill notification email. And, lastly, if you are threatened with litigation, or merely receive a demand letter, engage counsel immediately – when a nuisance value settlement, or an outright claims dismissal, may still be viable.
Please direct any questions to:
Traci H. Rollins, Co-Chair, Class Action Defense Team | [email protected] | (561) 650-0510 or
Stephen C. Richman, Member, Class Action Defense Team | [email protected] | (561) 804-4362
YES! PLEASE SIGN ME UP TO RECEIVE EMAIL ALERTS FROM OTHER GUNSTER PRACTICE AREAS.
This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
About Gunster
Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 13 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Naples, Orlando, Palm Beach, Stuart, Tallahassee, Tampa Bayshore, Tampa Downtown, Vero Beach, and its headquarters in West Palm Beach. With more than 260 attorneys and consultants, and over 270 committed professional staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.
