7th Cir. Says Debt Collector’s E-mail Communications Were Not “Communications” Because “Private” E-mails Were Merely Gateways to an Extended Process that Ended in the Relevant Message

It seems like an argument down the rabbit hole, but in Lavallee v. Med-1 Sols., LLC, No. 17-3244, 2019 U.S. App. LEXIS 23664, at *11-15 (7th Cir. Aug. 8, 2019), the Court of Appeal found that privately-linked debt collection e-mails were not collection communications, disagreeing with the debt collector’s argument that its e-mails were, in fact, collection communications.   Huh?

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 [*12]  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.  This understanding of “communication” is firmly rooted in the statutory text. “To convey [*13]  is to impart, to make known.” Id. at 1182; accord Convey, The American Heritage Dictionary (2d college ed. 1982) (“[t]o communicate or make known; impart”).  If a message doesn’t inform its reader that it even pertains to a debt, it simply cannot “convey[] … information regarding a debt.” § 1692a(2). We therefore hold that a debt collector’s message must at least imply the existence of a debt to meet the Act’s definition of “communication.” Med-1’s emails were insufficient. . . .Hart does little to bolster Med-1’s case. The Eleventh Circuit reasoned that the debt collector’s “voicemail, although short, conveyed information directly to Hart—by letting her know that a debt collector sought to speak with her and by providing her with instructions and contact information to return the call.” Id. at 1257-58. Moreover, it “indicated [*14]  that a debt collector was seeking to speak to her as a part of its efforts to collect a debt.” Id. at 1258. In sum, Credit Control implied the existence of a debt when it identified itself as a debt collector. Med-1’s emails did nothing of the sort. Unlike the voicemail in Hart, the emails did not include the words “debt” or “collector.”  Med-1 argues in the alternative that its emails were communications because they were intended to aid its collection efforts. This argument relies on Horkey v. J.V.D.B. & Associates, Inc., 333 F.3d 769 (7th Cir. 2003), but that case is inapposite: It contains no analysis of the Act’s definition of “communication.” We looked to the debt collector’s purpose solely to determine whether it engaged in harassing “conduct … in connection with the collection of a debt” under § 1692d. Id. at 773 (emphasis added). Horkey has no bearing on the question  presented here.  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; [*15]  (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. An envelope is merely a means of transmitting a letter bearing a substantive message. The letter in Med-1’s analogy clearly “contains” the information it imparts. Conversely, Med-1’s emails contained nothing more than hyperlinks—gateways to an extended process that ends in the relevant message. The proper analogue is a letter that provides nothing more than the address of a location where the message can be obtained. That hypothetical letter, like the emails here, doesn’t “contain” the relevant information.