Confirming What’s “Clear and Conspicuous” Under Reg F - Illinois State Court Gets It!

In a first, a Chancery Court judge for Cook County, Illinois has ruled that an opt-opt notice contained within a collection e-mail satisfied Reg. F’s dual requirements of describing a simple opt out process and providing a clear and conspicuous opt-out disclosure.  

In Baltasarv. Nationwide Credit, Inc., the plaintiff received a collection email notice, with an opt-out notice located on the second page of what would be a3-page email notice if printed. The notice appeared immediately after the substantive portion of the email notice. Plaintiff filed suit, alleging that the email notice violated the FDCPA and Reg. F, because it did not contain a clear and conspicuous opt-out notice and because the opt-out process was not“simple.”

InReg. F cases, we have seen challenges to the sufficiency of opt-out notices being the most popular, largely because of the ambiguity of terms like “simple”and “clear and conspicuous” and the CFPB’s failure to provide any clear guidance on what this all means. As a reminder, Reg.F requires debt collectors to include a clear and conspicuous statement describing a reasonable and simple method by which the consumer can opt out of further electronic communications. 

In this case, defended by The Sessions Firm, Nationwide Credit, Inc. filed a motion to dismiss, arguing that the email notice satisfied both of Reg. F’s opt-out requirements. The court agreed and granted the motion.

In dismissing the plaintiff’s first theory, the court determined that the opt-out notice was “readily understandable” and offered simple options to opt out by calling, clicking a hyperlink, or sending an email response to the debt collector.

Asfor the second claim, the court ruled that the notice itself was clear and conspicuous, because it was in a stand-alone paragraph in the same size font as the rest of the email notice, with a blue highlighted phone number and a blue underlined hyperlink that said “click here.” The Court found that since the opt-out was not in a smaller font, not buried within a larger paragraph, and was not concealed in any manner, the notice was sufficiently prominent, readily noticeable and legible.

Have questions about your opt-out notice? We are here to help.

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