A new cottage industry of litigation premised on the Florida Consumer Collection Practices Ac (FCCPA) should give companies pause before sending billing-related emails to their customers outside of typical business hours. In a new line of cases, the plaintiffs bar is pursuing class actions based on billing-related emails sent between the hours of 9 p.m. and 8 a.m. The theory is based on Fla. Stat. Section 559.72(17), which reads: "In collecting consumer debts, no person shall: … Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor's time zone without the prior consent of the debtor." Lawsuits have been filed based on, for example, email reminders of upcoming standard billing cycle due dates and email notifications that a bill is available for review. While common sense indicates that these emails should not qualify as debt collection under the statute, plaintiffs are leveraging sparse guidance on the issue to pursue these cases.

Although case law is developing, if faced with an FCCPA class action premised on after-hours emails, there are a number of defenses and strategies that defendants should consider, including: