The Massachusetts Attorney General (“AG”) announced on March 27 a regulation declaring certain specified debt collection practices to be unfair and deceptive practices under the Massachusetts Consumer Protection Act, Massachusetts General Laws chapter 93A, during the Massachusetts pandemic state of emergency. 940 C.M.R. § 35.00. That regulation was issued on an emergency basis, bypassing the otherwise applicable notice and public hearing requirements.
On April 20 ACA International, the Association of Credit and Collection Professionals (“ACA”), filed in federal court in Boston a complaint for declaratory and injunctive relief, along with an emergency motion for a temporary restraining order and preliminary injunction, seeking to have that regulation declared invalid and the AG enjoined from enforcing it. ACA seeks to have the court declare invalid two prohibitions contained in the regulation: one barring debt collectors (as defined in the regulation; including attorneys) from initiating telephone calls to debtors (with certain limited exceptions), and the other barring creditors and debt collectors from initiating new collection lawsuits or acting upon remedies already obtained (e.g., garnishment, seizure, attachment). On May 1 the court (Judge Richard Stearns) heard argument on ACA’s motion (via videoconference).
Specifically exempted from the regulation are collection activities with respect to mortgage loans and residential tenant debt. Also, the regulation excludes six categories of individuals and entities from its definition of “debt collector,” including process servers, federal and state employees acting in their official capacities, and secured creditors attempting to collect debts arising from commercial credit transactions.
ACA raises a variety of bases for the regulation’s invalidity. The court at the outset of the May 1 argument stated that it wished to focus on two: the regulation’s alleged inconsistency with the First Amendment right to freedom of expression, and its alleged inconsistency with the First Amendment right to petition for redress of grievances in court.
Counsel for ACA argued that the regulation’s restrictions on speech are both content-based and speaker-based, thus requiring strict scrutiny. He contended that the regulation does not meet the constitutional requirements that it be narrowly tailored to further a “compelling government interest” in addressing real, not speculative or conjectural, harms that are not already addressed, e.g., by the AG’s and the Massachusetts Division of Banks’ pre-pandemic debt collection regulations (940 C.M.R. § 7.00 and 209 C.M.R. § 18.00, respectively).
The AG’s counsel stressed the extant exigent circumstances, relying on Civil War, World War I, and World War II precedents to justify the regulation’s “temporary time out,” which he contended will not result in any irrevocable deprivation of any constitutional right.
The court, recognizing the time-sensitive nature of ACA’s claims, undertook to issue a decision in short order.
Violations of Chapter 93A can give rise to civil enforcement actions by the AG (seeking, among other things, penalties of up to $5,000 per knowing violation) and to private actions for treble damages.
The challenged prohibitions are effective until the earlier of 30 days after the Massachusetts Governor lifts the pandemic state of emergency or 90 days after the regulation’s effective date. The latter is the outside limit: the Massachusetts Administrative Procedure Act provides that a regulation issued on an emergency basis without notice and a hearing can be valid for no more than 90 days. However, as was suggested at the hearing, the AG may be able to extend that period by starting a notice and comment period, or by issuing another emergency regulation.
To learn more about the issues raised by this client bulletin, please contact John R. Snyder at jsnyder@potomaclaw.com
Note: This bulletin is for general use and should not be construed to provide legal advice as to particular factual situations.
