In a new decision slated for publication, the Sixth Circuit weighed in on an issue under the Fair Debt Collection Practices Act (FDCPA): whether a “benign language” exception exists to a flat prohibition of substantive information appearing on an envelope containing a letter from a debt collector. The Sixth Circuit took a strict reading of the FDCPA, rejected the existence of an exception to the prohibition, and cleared a class action to proceed.

In Donovan v. FirstCredit, the defendant debt collector mailed the plaintiff a collection letter in an envelope with two glassine windows, one on top of the other. The bottom window contained the plaintiff’s name and mailing address, which did not pose a problem. However, because the letter when folded was smaller than the envelope containing it, the letter would shift in the envelope, altering the amount of text visible through the top window, leading to the issue in the case. Always visible in the top window were an empty checkbox and the phrase, “Payment in full is enclosed.” Depending on the position of the letter, there could also appear a second empty checkbox and the phrase, “I need to discuss this further. My phone number is _________.”

The plaintiff sued the debt collector on behalf of herself and a putative class of others who received the letter, alleging that the letter violated Section 1692f(8) of the FDCPA, which prohibits the use of “any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.” Specifically, the plaintiff claimed that the visibility of the checkboxes and the accompanying language through the glassine window “created the risk that anyone who caught a glimpse of the plaintiff’s mail would recognize that she was receiving mail from a debt collector, causing her embarrassment and emotional distress.”

The defendant moved for judgment on the pleadings, arguing that Section 1692f(8) included an implied “benign language” exception which applied to the checkboxes and messages that appeared in the top glassine window. The district court agreed and dismissed the case.

In appealing the dismissal, the plaintiff argued that, because the statute did not expressly permit the letter’s contents that were visible through the top window to be used on the envelope itself, they were unambiguously forbidden by the statute’s plain language. The defendant argued that this literal reading leads to absurd results and that a “benign language” exception is needed. For example, Congress did not explicitly exempt the consumer’s address and postage when it issued its blanket prohibition on “any language or symbol” other than the debt collector’s address. Thus, the defendant argued, the statute’s scope “is so sweeping that it inadvertently forbids language and symbols required of mail communication, even though Congress plainly intended to endorse debt collectors’ ability to communicate with consumers by mail.”

Acknowledging a circuit split on the existence of a “benign language” exception, the Sixth Circuit reasoned that because “a literal reading of the unambiguous text” of Section 1692f(8) “does not lead to an absurd result, we have no cause to reach beyond the text and rely on legislative history or administrative guidance to read a ‘benign language’ exception into 1692f(8).”

Specifically, the Court reasoned that the blanket prohibition on “any language or symbol” is triggered only “when communicating with a consumer by use of the mails,” and thus operates under the presupposition that the envelope used by the debt collector will employ those features necessary to facilitate its delivery. In this context, the provision’s blanket prohibition is best understood as forbidding “any language or symbol” on the envelope other than “language or symbols to ensure the successful delivery of the communication,” with a statutory carve-out for the debt collector’s return address and its name (where the name does not indicate that the sender is a debt collector).

Thus, in the Court’s analysis, the checkboxes and messages viewable in the envelope’s top glassine window “played no role in ensuring the successful delivery of the letter, nor were they the defendant’s address or an allowable business name.” Therefore, the plaintiff had properly stated a claim for violation of Section 1692f(8), and the class-action lawsuit was cleared to proceed.

A copy of the ruling is available here.