It just seems to me that Judge Fletcher is right here and that Judge VanDyke is wrong.
Which, I get, you might think is because (1) it's a case involving debt collectors, (2) in which the Ninth Circuit holds against the debt collector. Plus, in general, it's true that I often find myself more agreeing with Judge Fletcher than Judge VanDyke. (At least when they disagree; in truth, I agree with what both judges write the overwhelming majority of the time.)
That said, Judge Bybee agrees with Judge Fletcher as well. And that's a judge who, in general, is more likely to agree with Judge VanDyke than Judge Fletcher. (At least, again, when they disagree.)
So that gives you some confidence that my perspective on this isn't just results-oriented, no?
Judge Fletcher's opinion basically holds that it's just fine for Nevada to require debt collectors to send a letter 60 days before they try to collect a medical debt that says that tells the debtor where the alleged debt is from (e.g., the name of the health care provider) and the amount of the debt. That doesn't violate the First Amendment and it isn't preempted by the federal Fair Debt Collection Practices Act. As Nevada's subsequent regulations make clear, that initial letter isn't an attempt to collect a debt -- indeed, the Nevada regulations expressly say that's got to be in the letter. It just tells the debtor what's owed, in the event the debtor feels like paying it or otherwise wants to do anything else (e.g., investigate or dispute the thing).
Just like, I might add, it wouldn't violate the FDCPA to require debtors to send a letter with a smiley face 60 days before attempting to collect a medical debt. Yes, everything a debt collector does is ultimately an attempt to collect a debt. But a letter required by the state that includes a smiley face nonetheless is not an attempt to collect a debt under federal law, and in any event, is more protective than federal law anyway, so is not preempted.
In short, I agree with Judge Fletcher.
