Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A.

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

JERMAN v. CARLISLE, MCNELLIE, RINI, KRAMER &

ULRICH LPA ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 08–1200. Argued January 13, 2010—Decided April 21, 2010

The Fair Debt Collection Practices Act (FDCPA), 15 U. S. C. §1692 et

seq., imposes civil liability on “debt collector[s]” for certain prohibited

debt collection practices. A debt collector who “fails to comply with

any [FDCPA] provision . . . with respect to any person is liable to

such person” for “actual damage[s],” costs, “a reasonable attorney’s

fee as determined by the court,” and statutory “additional damages.”

§1692k(a). In addition, violations of the FDCPA are deemed unfair or

deceptive acts or practices under the Federal Trade Commission Act

(FTC Act), §41 et seq., which is enforced by the Federal Trade Com

mission (FTC). See §1692l. A debt collector who acts with “actual

knowledge or knowledge fairly implied on the basis of objective cir

cumstances that such act is [prohibited under the FDCPA]” is subject

to civil penalties enforced by the FTC. §§45(m)(1)(A), (C). A debt col

lector is not liable in any action brought under the FDCPA, however,

if it “shows by a preponderance of evidence that the violation was not

intentional and resulted from a bona fide error notwithstanding the

maintenance of procedures reasonably adapted to avoid any such er

ror.” §1692k(c).

Respondents, a law firm and one of its attorneys (collectively Car

lisle), filed a lawsuit in Ohio state court on behalf of a mortgage com

pany to foreclose a mortgage on real property owned by petitioner

Jerman. The complaint included a notice that the mortgage debt

would be assumed valid unless Jerman disputed it in writing. Jer

man’s lawyer sent a letter disputing the debt, and, when the mort

gage company acknowledged that the debt had in fact been paid, Car

lisle withdrew the suit. Jerman then filed this action, contending

that by sending the notice requiring her to dispute the debt in writ

2 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Syllabus

ing, Carlisle had violated §1692g(a) of the FDCPA, which governs the

contents of notices to debtors. The District Court, acknowledging a

division of authority on the question, held that Carlisle had violated

§1692g(a) but ultimately granted Carlisle summary judgment under

§1692k(c)’s “bona fide error” defense. The Sixth Circuit affirmed,

holding that the defense in §1692k(c) is not limited to clerical or fac

tual errors, but extends to mistakes of law.

Held: The bona fide error defense in §1692k(c) does not apply to a viola

tion resulting from a debt collector’s mistaken interpretation of the

legal requirements of the FDCPA. Pp. 6–30.

(a) A violation resulting from a debt collector’s misinterpretation of

the legal requirements of the FDCPA cannot be “not intentional” un

der §1692k(c). It is a common maxim that “ignorance of the law will

not excuse any person, either civilly or criminally.” Barlow v. United

States, 7 Pet. 404, 411. When Congress has intended to provide a

mistake-of-law defense to civil liability, it has often done so more ex

plicitly than here. In particular, the administrative-penalty provi

sions of the FTC Act, which are expressly incorporated into the

FDCPA, apply only when a debt collector acts with “actual knowledge

or knowledge fairly implied on the basis of objective circumstances”

that the FDCPA prohibited its action. §§45(m)(1)(A), (C). Given the

absence of similar language in §1692k(c), it is fair to infer that Con

gress permitted injured consumers to recover damages for “inten

tional” conduct, including violations resulting from a mistaken inter

pretation of the FDCPA, while reserving the more onerous

administrative penalties for debt collectors whose intentional actions

reflected knowledge that the conduct was prohibited. Congress also

did not confine FDCPA liability to “willful” violations, a term more of

ten understood in the civil context to exclude mistakes of law. See,

e.g., Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 125–126.

Section 1692k(c)’s requirement that a debt collector maintain “proce

dures reasonably adapted to avoid any such error” also more natu

rally evokes procedures to avoid mistakes like clerical or factual er

rors. Pp. 6–12.

(b) Additional support for this reading is found in the statute’s con

text and history. The FDCPA’s separate protection from liability for

“any act done or omitted in good faith in conformity with any [FTC]

advisory opinion,” §1692k(e), is more obviously tailored to the con

cern at issue (excusing civil liability when the FDCPA’s prohibitions

are uncertain) than the bona fide error defense. Moreover, in enact

ing the FDCPA in 1977, Congress copied the pertinent portions of the

bona fide error defense from the Truth in Lending Act (TILA),

§1640(c). At that time, the three Federal Courts of Appeals to have

considered the question interpreted the TILA provision as referring

Cite as: 559 U. S. ____ (2010) 3

Syllabus

to clerical errors, and there is no reason to suppose Congress dis

agreed with those interpretations when it incorporated TILA’s lan

guage into the FDCPA. Although in 1980 Congress amended the de

fense in TILA, but not in the FDCPA, to exclude errors of legal

judgment, it is not obvious that amendment changed the scope of the

TILA defense in a way material here, given the prior uniform judicial

interpretation of that provision. It is also unclear why Congress

would have intended the FDCPA’s defense to be broader than TILA’s,

and Congress has not expressly included mistakes of law in any of

the parallel bona fide error defenses elsewhere in the U. S. Code.

Carlisle’s reading is not supported by Heintz v. Jenkins, 514 U. S.

291, 292, which had no occasion to address the overall scope of the

FDCPA bona fide error defense, and which did not depend on the

premise that a misinterpretation of the requirements of the FDCPA

would fall under that provision. Pp. 13–22.

(c) Today’s decision does not place unmanageable burdens on debt

collecting lawyers. The FDCPA contains several provisions expressly

guarding against abusive lawsuits, and gives courts discretion in cal

culating additional damages and attorney’s fees. Lawyers have re

course to the bona fide error defense in §1692k(c) when a violation

results from a qualifying factual error. To the extent the FDCPA im

poses some constraints on a lawyer’s advocacy on behalf of a client, it

is not unique; lawyers have a duty, for instance, to comply with the

law and standards of professional conduct. Numerous state con

sumer protection and debt collection statutes contain bona fide error

defenses that are either silent as to, or expressly exclude, legal er

rors. To the extent lawyers face liability for mistaken interpretations

of the FDCPA, Carlisle and its amici have not shown that “the result

[will be] so absurd as to warrant” disregarding the weight of textual

authority. Heintz, supra, at 295. Absent such a showing, arguments

that the FDCPA strikes an undesirable balance in assigning the risks

of legal misinterpretation are properly addressed to Congress.

Pp. 22–30.

538 F. 3d 469, reversed and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, THOMAS, GINSBURG, and BREYER, JJ., joined.

BREYER, J., filed a concurring opinion. SCALIA, J., filed an opinion con

curring in part and concurring in the judgment. KENNEDY, J., filed a

dissenting opinion, in which ALITO, J., joined.

Cite as: 559 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1200

_________________

KAREN L. JERMAN, PETITIONER v. CARLISLE, MC-

NELLIE, RINI, KRAMER & ULRICH LPA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[April 21, 2010]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

The Fair Debt Collection Practices Act (FDCPA or Act)

imposes civil liability on “debt collector[s]” for certain

prohibited debt collection practices. Section 813(c) of the

Act, 15 U. S. C. §1692k(c), provides that a debt collector is

not liable in an action brought under the Act if she can

show “the violation was not intentional and resulted from

a bona fide error notwithstanding the maintenance of

procedures reasonably adapted to avoid any such error.”

This case presents the question whether the “bona fide

error” defense in §1692k(c) applies to a violation resulting

from a debt collector’s mistaken interpretation of the legal

requirements of the FDCPA. We conclude it does not.

I

A

Congress enacted the FDCPA in 1977, 91 Stat. 874, to

eliminate abusive debt collection practices, to ensure that

debt collectors who abstain from such practices are not

competitively disadvantaged, and to promote consistent

state action to protect consumers. 15 U. S. C. §1692(e).

The Act regulates interactions between consumer debtors

2 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of the Court

and “debt collector[s],” defined to include any person who

“regularly collects . . . debts owed or due or asserted to be

owed or due another.” §§1692a(5), (6). Among other

things, the Act prohibits debt collectors from making false

representations as to a debt’s character, amount, or legal

status, §1692e(2)(A); communicating with consumers at an

“unusual time or place” likely to be inconvenient to the

consumer, §1692c(a)(1); or using obscene or profane lan

guage or violence or the threat thereof, §§1692d(1), (2).

See generally §§1692b–1692j; Heintz v. Jenkins, 514 U. S.

291, 292–293 (1995).

The Act is enforced through administrative action and

private lawsuits. With some exceptions not relevant here,

violations of the FDCPA are deemed to be unfair or decep

tive acts or practices under the Federal Trade Commission

Act (FTC Act), 15 U. S. C. §41 et seq., and are enforced by

the Federal Trade Commission (FTC). See §1692l. As a

result, a debt collector who acts with “actual knowledge or

knowledge fairly implied on the basis of objective circum

stances that such act is [prohibited under the FDCPA]” is

subject to civil penalties of up to $16,000 per day.

§§45(m)(1)(A), (C); 74 Fed. Reg. 858 (2009) (amending 16

CFR §1.98(d)).

The FDCPA also provides that “any debt collector who

fails to comply with any provision of th[e] [Act] with re

spect to any person is liable to such person.” 15 U. S. C.

§1692k(a). Successful plaintiffs are entitled to “actual

damage[s],” plus costs and “a reasonable attorney’s fee as

determined by the court.” Ibid. A court may also award

“additional damages,” subject to a statutory cap of $1,000

for individual actions, or, for class actions, “the lesser of

$500,000 or 1 per centum of the net worth of the debt

collector.” §1692k(a)(2). In awarding additional damages,

the court must consider “the frequency and persistence of

[the debt collector’s] noncompliance,” “the nature of such

noncompliance,” and “the extent to which such noncompli

Cite as: 559 U. S. ____ (2010) 3

Opinion of the Court

ance was intentional.” §1692k(b).

The Act contains two exceptions to provisions imposing

liability on debt collectors. Section 1692k(c), at issue here,

provides that

“[a] debt collector may not be held liable in any action

brought under [the FDCPA] if the debt collector shows

by a preponderance of evidence that the violation was

not intentional and resulted from a bona fide error

notwithstanding the maintenance of procedures rea

sonably adapted to avoid any such error.”

The Act also states that none of its provisions imposing

liability shall apply to “any act done or omitted in good

faith in conformity with any advisory opinion of the [Fed

eral Trade] Commission.” §1692k(e).

B

Respondents in this case are a law firm, Carlisle,

McNellie, Rini, Kramer & Ulrich, L. P. A., and one of its

attorneys, Adrienne S. Foster (collectively Carlisle). In

April 2006, Carlisle filed a complaint in Ohio state court

on behalf of a client, Countrywide Home Loans, Inc.

Carlisle sought foreclosure of a mortgage held by Coun

trywide in real property owned by petitioner Karen L.

Jerman. The complaint included a “Notice,” later served

on Jerman, stating that the mortgage debt would be as

sumed to be valid unless Jerman disputed it in writing.

Jerman’s lawyer sent a letter disputing the debt, and

Carlisle sought verification from Countrywide. When

Countrywide acknowledged that Jerman had, in fact,

already paid the debt in full, Carlisle withdrew the fore

closure lawsuit.

Jerman then filed her own lawsuit seeking class certifi

cation and damages under the FDCPA, contending that

Carlisle violated §1692g by stating that her debt would be

4 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of the Court

assumed valid unless she disputed it in writing.1 While

acknowledging a division of authority on the question, the

District Court held that Carlisle had violated §1692g by

requiring Jerman to dispute the debt in writing. 464

F. Supp. 2d 720, 722–725 (ND Ohio 2006).2 The court

ultimately granted summary judgment to Carlisle, how

ever, concluding that §1692k(c) shielded it from liability

because the violation was not intentional, resulted from a

bona fide error, and occurred despite the maintenance of

procedures reasonably adapted to avoid any such error.

502 F. Supp. 2d 686, 695–697 (ND Ohio 2007). The Court

of Appeals for the Sixth Circuit affirmed. 538 F. 3d 469

(2008). Acknowledging that the Courts of Appeals are

divided regarding the scope of the bona fide error defense,

and that the “majority view is that the defense is available

for clerical and factual errors only,” the Sixth Circuit

nonetheless held that §1692k(c) extends to “mistakes of

law.” Id., at 473–476 (internal quotation marks omitted).

The Court of Appeals found “nothing unusual” about

attorney debt collectors maintaining “procedures” within

the meaning of §1692k(c) to avoid mistakes of law. Id., at

476. Noting that a parallel bona fide error defense in the

——————

1 Section 1692g(a)(3) requires a debt collector, within five days of an

“initial communication” about the collection of a debt, to send the

consumer a written notice containing, inter alia, “a statement that

unless the consumer, within thirty days after receipt of the notice,

disputes the validity of the debt, or any portion thereof, the debt will be

assumed to be valid by the debt collector.”

2 The District Court distinguished, for instance, Graziano v. Harrison,

950 F. 2d 107, 112 (CA3 1991), which held a consumer’s dispute of a

debt under §1692g must be in writing to be effective. Noting that

district courts within the Sixth Circuit had reached different results,

and distinguishing one unpublished Sixth Circuit decision which

Carlisle suggested approved a form with an in-writing requirement, the

court adopted the reasoning from Camacho v. Bridgeport Financial,

Inc., 430 F. 3d 1078, 1080–1082 (CA9 2005), and held that the plain

language of §1692g does not impose an “in writing” requirement on

consumers. See 464 F. Supp. 2d, at 725.

Cite as: 559 U. S. ____ (2010) 5

Opinion of the Court

Truth in Lending Act (TILA), 15 U. S. C. §1640(c), ex

pressly excludes legal errors, the court observed that

Congress has amended the FDCPA several times since

1977 without excluding mistakes of law from §1692k(c).

538 F. 3d, at 476.3

We granted certiorari to resolve the conflict of authority

as to the scope of the FDCPA’s bona fide error defense,4

557 U. S. ___ (2009), and now reverse the judgment of the

Sixth Circuit.

——————

3 Because the question was not raised on appeal, the Court of Appeals

did not address whether Carlisle’s inclusion of the “in writing” re

quirement violated §1692g. 538 F. 3d, at 472, n. 2. We likewise ex

press no view about whether inclusion of an “in writing” requirement in

a notice to a consumer violates §1692g, as that question was not pre

sented in the petition for certiorari. Compare Graziano, supra, at 112

(reading §1692g(a)(3) to require that “any dispute, to be effective, must

be in writing”), with Camacho, supra, at 1082 (under §1692g(a)(3),

“disputes need not be made in writing”).

4 Compare, e.g., 538 F. 3d, at 476 (case below), with Baker v. G. C.

Servs. Corp., 677 F. 2d 775, 779 (CA9 1982), and Hulshizer v. Global

Credit Servs., Inc., 728 F. 2d 1037, 1038 (CA8 1984) (per curiam).

The Courts of Appeals have also expressed different views about

whether 15 U. S. C. §1692k(c) applies to violations of the FDCPA

resulting from a misinterpretation of the requirements of state law.

Compare Johnson v. Riddle, 305 F. 3d 1107, 1121 (CA10 2002) (con

cluding that §1692k(c) applies where a debt collector’s misinterpreta

tion of a Utah dishonored check statute resulted in a violation of

§1692f(1), which prohibits collection of any amount not “permitted by

law”), with Picht v. Jon R. Hawks, Ltd., 236 F. 3d 446, 451–452 (CA8

2001) (stating that §1692k(c) does not preclude FDCPA liability result

ing from a creditor’s mistaken legal interpretation of a Minnesota

garnishment statute). The parties disagree about whether §1692k(c)

applies when a violation results from a debt collector’s misinterpreta

tion of the legal requirements of state law or federal law other than the

FDCPA. Compare Brief for Petitioner 47–49, with Brief for Respon

dents 60–62. Because this case involves only an alleged misinterpreta

tion of the requirements of the FDCPA, we need not, and do not, reach

those other questions.

6 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of the Court

II

A

The parties disagree about whether a “violation” result

ing from a debt collector’s misinterpretation of the legal

requirements of the FDCPA can ever be “not intentional”

under §1692k(c). Jerman contends that when a debt

collector intentionally commits the act giving rise to the

violation (here, sending a notice that included the “in

writing” language), a misunderstanding about what the

Act requires cannot render the violation “not intentional,”

given the general rule that mistake or ignorance of law is

no defense. Carlisle and the dissent, in contrast, argue

that nothing in the statutory text excludes legal errors

from the category of “bona fide error[s]” covered by

§1692k(c) and note that the Act refers not to an uninten

tional “act” but rather an unintentional “violation.” The

latter term, they contend, evinces Congress’ intent to

impose liability only when a party knows its conduct is

unlawful. Carlisle urges us, therefore, to read §1692k(c) to

encompass “all types of error,” including mistakes of law.

Brief for Respondents 7.

We decline to adopt the expansive reading of §1692k(c)

that Carlisle proposes. We have long recognized the

“common maxim, familiar to all minds, that ignorance of

the law will not excuse any person, either civilly or crimi

nally.” Barlow v. United States, 7 Pet. 404, 411 (1833)

(opinion for the Court by Story, J.); see also Cheek v.

United States, 498 U. S. 192, 199 (1991) (“The general rule

that ignorance of the law or a mistake of law is no defense

to criminal prosecution is deeply rooted in the American

legal system”).5 Our law is therefore no stranger to the

——————

5 The

dissent discounts the relevance of the principle here, on grounds

that this case involves the scope of a statutory exception to liability,

rather than a provision “delineat[ing] a category of prohibited conduct.”

Post, at 15 (opinion of KENNEDY, J.). That is a distinction without a

Cite as: 559 U. S. ____ (2010) 7

Opinion of the Court

possibility that an act may be “intentional” for purposes of

civil liability, even if the actor lacked actual knowledge

that her conduct violated the law. In Kolstad v. American

Dental Assn., 527 U. S. 526 (1999), for instance, we ad

dressed a provision of the Civil Rights Act of 1991 author

izing compensatory and punitive damages for “intentional

——————

difference, as our precedents have made clear for more than 175 years.

Barlow involved a statute providing for forfeiture of any goods entered

“by a false denomination” in the office of a customs collector “for the

benefit of drawback or bounty upon the exportation”; the statute

included, however, an exception under which “said forfeiture shall not

be incurred, if it shall be made appear . . . that such false denomination

. . . happened by mistake or accident, and not from any intention to

defraud the revenue.” 7 Pet., at 406; see also Act of Mar. 2, 1799, §84, 1

Stat. 694. The Court concluded that the shipment at issue, entered as

“refined sugars,” was mislabeled under the prevailing meaning of that

term and thus was subject to forfeiture “unless the [petitioner] c[ould]

bring himself within the exceptio[n].” 7 Pet., at 409–410. As there had

been no “accident” or “mistake” of fact, the “only mistake, if there ha[d]

been any, [wa]s a mistake of law.” Id., at 410–411. The Court observed

that the shipper’s conduct, even if “entirely compatible with good faith,

[wa]s not wholly free from the suspicion of an intention to overreach . . .

by passing off, as refined sugars, what he well knew were not admitted

to be such.” Id., at 411. But the Court declined to resolve the case on

the ground of the shipper’s intent, instead invoking the “common

maxim, familiar to all minds, that ignorance of the law will not excuse

any person, either civilly or criminally.” Ibid. Notwithstanding the

existence of a statutory exception—which did not expressly exclude

legal errors from the category of “mistake[s]” made without “intention

to defraud”—the Court saw “not the least reason to suppose that the

legislature, in this enactment, had any intention to supersede the

common principle.” Ibid.

The dissent implies Barlow is too old to be relevant. Post, at 16. But

at least in the context of stare decisis, this Court has suggested prece

dents tend to gain, not lose, respect with age. See Montejo v. Louisi

ana, 556 U. S. ___, ___ (2009) (slip op., at 13). In any event, Justice

Story’s opinion for a unanimous Court in Barlow is hardly a relic. As

recently as 1994 this Court cited it for the “venerable principle” that

ignorance of the law generally is no defense. Ratzlaf v. United States,

510 U. S. 135, 149; see also Cheek v. United States, 498 U. S. 192, 199

(1991) (citing Barlow for a similar proposition).

8 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of the Court

discrimination,” 42 U. S. C. §1981a, but limiting punitive

damages to conduct undertaken “with malice or with

reckless indifference to the federally protected rights of an

aggrieved individual,” §1981a(b)(1). We observed that in

some circumstances “intentional discrimination” could

occur without giving rise to punitive damages liability,

such as where an employer is “unaware of the relevant

federal prohibition” or acts with the “distinct belief that its

discrimination is lawful.” 527 U. S., at 536–537. See also

W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and

Keeton on Law of Torts 110 (5th ed. 1984) (“[I]f one inten

tionally interferes with the interests of others, he is often

subject to liability notwithstanding the invasion was made

under an erroneous belief as to some . . . legal matter that

would have justified the conduct”); Restatement (Second)

of Torts §164, and Comment e (1963–1964) (intentional

tort of trespass can be committed despite the actor’s

mistaken belief that she has a legal right to enter the

property).6

Likely for this reason, when Congress has intended to

provide a mistake-of-law defense to civil liability, it has

often done so more explicitly than here. In particular, the

FTC Act’s administrative-penalty provisions—which, as

noted above, Congress expressly incorporated into the

FDCPA—apply only when a debt collector acts with “ac

tual knowledge or knowledge fairly implied on the basis of

objective circumstances” that its action was “prohibited by

——————

6 Different considerations apply, of course, in interpreting criminal

statutes. Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 57–58, n. 9

(2007). But even in that context, we have not consistently required

knowledge that the offending conduct is unlawful. See, e.g., Ellis v.

United States, 206 U. S. 246, 255, 257 (1907) (observing, in the context

of a statute imposing liability for “intentiona[l] violat[ions],” that “[i]f a

man intentionally adopts certain conduct in certain circumstances

known to him, and that conduct is forbidden by the law under those

circumstances, he intentionally breaks the law in the only sense in

which the law ever considers intent”).

Cite as: 559 U. S. ____ (2010) 9

Opinion of the Court

[the FDCPA].” 15 U. S. C. §§45(m)(1)(A), (C). Given the

absence of similar language in §1692k(c), it is a fair infer

ence that Congress chose to permit injured consumers to

recover actual damages, costs, fees, and modest statutory

damages for “intentional” conduct, including violations

resulting from mistaken interpretation of the FDCPA,

while reserving the more onerous penalties of the FTC Act

for debt collectors whose intentional actions also reflected

“knowledge fairly implied on the basis of objective circum

stances” that the conduct was prohibited. Cf. 29 U. S. C.

§260 (authorizing courts to reduce liquidated damages

under the Portal-to-Portal Act of 1947 if an employer

demonstrates that “the act or omission giving rise to such

action was in good faith and that he had reasonable

grounds for believing that his act or omission was not a

violation of the Fair Labor Standards Act of 1938”); 17

U. S. C. §1203(c)(5)(A) (provision of Digital Millennium

Copyright Act authorizing court to reduce damages where

“the violator was not aware and had no reason to believe

that its acts constituted a violation”).

Congress also did not confine liability under the FDCPA

to “willful” violations, a term more often understood in the

civil context to excuse mistakes of law. See, e.g., Trans

World Airlines, Inc. v. Thurston, 469 U. S. 111, 125–126

(1985) (civil damages for “willful violations” of Age Dis

crimination in Employment Act of 1967 require a showing

that the employer “knew or showed reckless disregard for

the matter of whether its conduct was prohibited” (inter

nal quotation marks omitted)); cf. Safeco Ins. Co. of Amer

ica v. Burr, 551 U. S. 47, 57 (2007) (although “ ‘willfully’ ”

is a “ ‘word of many meanings’ ” dependent on context, “we

have generally taken it [when used as a statutory condi

tion of civil liability] to cover not only knowing violations

of a standard, but reckless ones as well” (quoting Bryan v.

United States, 524 U. S. 184, 191 (1998)). For this reason,

the dissent missteps in relying on Thurston and McLaugh

10 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of the Court

lin v. Richland Shoe Co., 486 U. S. 128, 133 (1988), as both

cases involved the statutory phrase “willful violation.”

Post, at 3.

The dissent reaches a contrary conclusion based on the

interaction of the words “violation” and “not intentional”

in §1692k(c). Post, at 2–3. But even in the criminal con

text, cf. n. 6, supra, reference to a “knowing” or “inten

tional” “violation” or cognate terms has not necessarily

implied a defense for legal errors. See Bryan v. United

States, 524 U. S. 184, 192 (1998) (“ ‘[T]he knowledge requi

site to knowing violation of a statute is factual knowledge

as distinguished from knowledge of the law’ ” (quoting

Boyce Motor Lines, Inc. v. United States, 342 U. S. 337,

345 (1952) (Jackson, J., dissenting)); United States v.

International Minerals & Chemical Corp., 402 U. S. 558,

559, 563 (1971) (statute imposing criminal liability on

those who “ ‘knowingly violat[e]’ ” regulations governing

transportation of corrosive chemicals does not require

“proof of [the defendant’s] knowledge of the law”); Ellis v.

United States, 206 U. S. 246, 255, 257 (1907) (rejecting

argument that criminal penalty applicable to those who

“intentionally violate” a statute “requires knowledge of the

law”).

The dissent advances a novel interpretative rule under

which the combination of a “mens rea requirement” and

the word “ ‘violation’ ” (as opposed to language specifying

“the conduct giving rise to the violation”) creates a mis

take-of-law defense. Post, at 2–3. Such a rule would be

remarkable in its breadth, applicable to the many scores of

civil and criminal provisions throughout the U. S. Code

that employ such a combination of terms. The dissent’s

theory draws no distinction between “knowing,” “inten

tional,” or “willful” and would abandon the care we have

traditionally taken to construe such words in their par

ticular statutory context. See, e.g., Safeco, supra, at 57.

More fundamentally, the dissent’s categorical rule is at

Cite as: 559 U. S. ____ (2010) 11

Opinion of the Court

odds with precedents such as Bryan, supra, at 192, and

International Minerals, supra, at 559, 563, in which we

rejected a mistake-of-law defense when a statute imposed

liability for a “knowing violation” or on those who “know

ingly violat[e]” the law.7

The dissent posits that the word “intentional,” in the

civil context, requires a higher showing of mens rea than

“willful” and thus that it should be easier to avoid liability

for intentional, rather than willful, violations. Post, at 4.

Even if the dissent is correct that the phrase “intentional

violation,” standing alone in a civil liability statute, might

be read to excuse mistakes of law, the FDCPA juxtaposes

the term “not intentional” “violation” in §1692k(c) with the

more specific language of §45(m)(1)(A), which refers to

——————

7 Indeed, in International Minerals, the Court faced, and evidently

rejected, the distinction the dissent would draw today between the term

“ ‘violation’ ” and a reference to “the conduct giving rise to the violation.”

Post, at 3. As noted, in International Minerals, the Court rejected a

mistake-of-law defense for a statute that applied to those who “know

ingly violat[e]” certain regulations. 402 U. S., at 559, 563. In so doing,

however, we expressly acknowledged the contrary view adopted by one

lower court opinion that knowledge of the regulations was necessary.

Id., at 562 (citing St. Johnsbury Trucking Co. v. United States, 220

F. 2d 393, 397 (CA1 1955) (Magruder, C. J., concurring)). The dissent

ing opinion in International Minerals quoted extensively portions of the

St. Johnsbury concurrence that reached its result by contrasting a

statute making it an offense “ ‘ “knowingly” to sell adulterated milk’ ”

with one that makes it an offense “ ‘knowingly [to] violat[e] a regula

tion.’ ” 402 U. S., at 566 (Stewart, J., dissenting) (quoting St. Johns

bury, supra, at 398).

Liparota v. United States, 471 U. S. 419 (1985), is also inapposite. Cf.

post, at 3 (KENNEDY, J., dissenting). Concluding that a mistake-of-law

defense is available under a provision that specifies particular conduct

undertaken while “ ‘knowing’ ” that food stamp coupons had been “ ‘used

in any manner in violation of [law],’ ” 471 U. S., at 428, n. 12, says little

about the meaning of a “not intentional” “violation” in 15 U. S. C.

§1692k(c). Indeed, the statute in Liparota bears a closer resemblance to

the administrative penalty provision in §45(m)(1)(A). See supra, at

8–9.

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“actual knowledge or knowledge fairly implied on the basis

of objective circumstances” that particular conduct was

unlawful. The dissent’s reading gives short shrift to that

textual distinction.

We draw additional support for the conclusion that bona

fide errors in §1692k(c) do not include mistaken interpre

tations of the FDCPA, from the requirement that a debt

collector maintain “procedures reasonably adapted to

avoid any such error.” The dictionary defines “procedure”

as “a series of steps followed in a regular orderly definite

way.” Webster’s Third New International Dictionary 1807

(1976). In that light, the statutory phrase is more natu

rally read to apply to processes that have mechanical or

other such “regular orderly” steps to avoid mistakes—for

instance, the kind of internal controls a debt collector

might adopt to ensure its employees do not communicate

with consumers at the wrong time of day, §1692c(a)(1), or

make false representations as to the amount of a debt,

§1692e(2). The dissent, like the Court of Appeals, finds

nothing unusual in attorney debt collectors maintaining

procedures to avoid legal error. Post, at 18; 538 F. 3d, at

476. We do not dispute that some entities may maintain

procedures to avoid legal errors. But legal reasoning is

not a mechanical or strictly linear process. For this rea

son, we find force in the suggestion by the Government (as

amicus curiae supporting Jerman) that the broad statu

tory requirement of procedures reasonably designed to

avoid “any” bona fide error indicates that the relevant

procedures are ones that help to avoid errors like clerical

or factual mistakes. Such procedures are more likely to

avoid error than those applicable to legal reasoning, par

ticularly in the context of a comprehensive and complex

federal statute such as the FDCPA that imposes open

ended prohibitions on, inter alia, “false, deceptive,”

§1692e, or “unfair” practices, §1692f. See Brief for United

States as Amicus Curiae 16–18.

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Even if the text of §1692k(c), read in isolation, leaves

room for doubt, the context and history of the FDCPA

provide further reinforcement for construing that provi

sion not to shield violations resulting from misinterpreta

tions of the requirements of the Act. See Dada v. Mu

kasey, 554 U. S. 1, __ (2008) (slip op., at 13) (“In reading a

statute we must not look merely to a particular clause, but

consider in connection with it the whole statute” (internal

quotation marks omitted)). As described above, Congress

included in the FDCPA not only the bona fide error de

fense but also a separate protection from liability for “any

act done or omitted in good faith in conformity with any

advisory opinion of the [FTC].” §1692k(e). In our view,

the Court of Appeals’ reading is at odds with the role

Congress evidently contemplated for the FTC in resolving

ambiguities in the Act. Debt collectors would rarely need

to consult the FTC if §1692k(c) were read to offer immu

nity for good-faith reliance on advice from private counsel.

Indeed, debt collectors might have an affirmative incentive

not to seek an advisory opinion to resolve ambiguity in the

law, as receipt of such advice would prevent them from

claiming good-faith immunity for violations and would

potentially trigger civil penalties for knowing violations

under the FTC Act.8 More importantly, the existence of a

separate provision that, by its plain terms, is more obvi

ously tailored to the concern at issue (excusing civil liabil

ity when the Act’s prohibitions are uncertain) weighs

against stretching the language of the bona fide error

——————

8 One of Carlisle’s amici suggests the FTC safe harbor would provide

a more categorical immunity than §1692k(c), obviating the need, e.g., to

maintain “procedures reasonably adapted to avoid any such error.”

Brief for National Association of Retail Collection Attorneys as Amicus

Curiae 18–19 (NARCA Brief). Even if that is true, we need not con

clude that the FTC safe harbor would be rendered entirely superfluous

to reason that the existence of that provision counsels against extend

ing the bona fide error defense to serve an overlapping function.

14 JERMAN v. CARLISLE, MCNELLIE, RINI,

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defense to accommodate Carlisle’s expansive reading.9

Any remaining doubt about the proper interpretation of

§1692k(c) is dispelled by evidence of the meaning attached

to the language Congress copied into the FDCPA’s bona

fide error defense from a parallel provision in an existing

statute. TILA, 82 Stat. 146, was the first of several stat

utes collectively known as the Consumer Credit Protection

Act (CCPA) that now include the FDCPA. As enacted in

1968, §130(c) of TILA provided an affirmative defense that

was in pertinent part identical to the provision Congress

later enacted into the FDCPA: “A creditor may not be held

liable in any action brought under [TILA] if the creditor

shows by a preponderance of evidence that the violation

was not intentional and resulted from a bona fide error

notwithstanding the maintenance of procedures reasona

bly adapted to avoid any such error.” 82 Stat. 157 (codi

fied at 15 U. S. C. §1640(c)).

During the 9-year period between the enactment of

TILA and passage of the FDCPA, the three Federal Courts

of Appeals to consider the question interpreted TILA’s

bona fide error defense as referring to clerical errors; no

such court interpreted TILA to extend to violations result

ing from a mistaken legal interpretation of that Act.10 We

——————

9 Carlisle raises concerns about whether, in light of contemporary

administrative practice, the FTC safe harbor is a realistic way for debt

collectors and their lawyers to seek guidance on the numerous time

sensitive legal issues that arise in litigation. These practical concerns,

to which we return below, do not change our understanding of the

statutory text itself or the likely intent of the enacting Congress.

10 See Ives v. W. T. Grant Co., 522 F. 2d 749, 757–758 (CA2 1975)

(concluding that the bona fide error defense in §1640(c) was unavailable

despite creditor’s reliance, in selecting language for credit contract

forms, on a pamphlet issued by the Federal Reserve Board); Haynes v.

Logan Furniture Mart, Inc., 503 F. 2d 1161, 1167 (CA7 1974) (“[Section]

1640(c) offers no shelter from liability for the defendant, whose error

. . . was judgmental with respect to legal requirements of the Act and

not clerical in nature”); Palmer v. Wilson, 502 F. 2d 860, 861 (CA9

Cite as: 559 U. S. ____ (2010) 15

Opinion of the Court

have often observed that when “judicial interpretations

have settled the meaning of an existing statutory provi

sion, repetition of the same language in a new statute

indicates, as a general matter, the intent to incorporate its

. . . judicial interpretations as well.” Bragdon v. Abbott,

524 U. S. 624, 645 (1998); see also Rowe v. New Hamp

shire Motor Transp. Assn., 552 U. S. 364, 370 (2008).

While the interpretations of three Federal Courts of Ap

peals may not have “settled” the meaning of TILA’s bona

fide error defense, there is no reason to suppose that

——————

1974) (similar).

Carlisle contends the meaning of TILA’s defense was unsettled at the

time of the FDCPA’s enactment, relying first on several District Court

opinions extending the defense to good-faith legal errors. See, e.g.,

Welmaker v. W. T. Grant Co., 365 F. Supp. 531, 544 (ND Ga. 1972).

But even assuming Congress would have looked to district court, rather

than court of appeals, opinions in discerning the meaning of the statu

tory language, applicable Circuit precedent had cast some doubt on

those decisions by the time the FDCPA was enacted. See, e.g., Turner

v. Firestone Tire & Rubber Co., 537 F. 2d 1296, 1298 (CA5 1976) (per

curiam) (referring to §1640(c) as the “so-called clerical error defense”).

Carlisle also relies on the holding in Thrift Funds of Baton Rouge, Inc.

v. Jones, 274 So. 2d 150 (La. 1973). But in that case, the Louisiana

Supreme Court concluded only that a lender’s mistaken interpretation

of state usury law did not “amoun[t] to an intentional violation of

[TILA’s] disclosure requirements.” Id., at 161. The Louisiana court

had no occasion to address the question analogous to the one we con

sider today: whether TILA’s bona fide error defense extended to viola

tions resulting from mistaken interpretation of TILA itself. See n. 4,

supra; see also Starks v. Orleans Motors, Inc., 372 F. Supp. 928, 931

(ED La.) (distinguishing Thrift Funds on this basis), aff’d, 500 F. 2d

1182 (CA5 1974). These precedents therefore do not convince us that

Congress would have ascribed a different meaning to the statutory

language it chose for the FDCPA. Compare post, at 2 (SCALIA, J.,

concurring in part and concurring in judgment), with Herman &

MacLean v. Huddleston, 459 U. S. 375, 384–386, and n. 21 (1983)

(concluding that Congress had “ratified” the “well-established judicial

interpretation” of a statute by leaving it intact during a comprehensive

revision, notwithstanding “[t]wo early district court decisions,” not

subsequently followed, that had adopted a contrary view).

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Congress disagreed with those interpretations when it

enacted the FDCPA. Congress copied verbatim the perti

nent portions of TILA’s bona fide error defense into the

FDCPA. Compare 15 U. S. C. §1640(c) (1976 ed.) with

§813(c), 91 Stat. 881. This close textual correspondence

supports an inference that Congress understood the statu

tory formula it chose for the FDCPA consistent with Fed

eral Court of Appeals interpretations of TILA.11

Carlisle and the dissent urge reliance, consistent with

the approach taken by the Court of Appeals, on a 1980

amendment to TILA that added the following sentence to

that statute’s bona fide error defense: “Examples of a bona

fide error include, but are not limited to, clerical, calcula

tion, computer malfunction and program[m]ing, and print

ing errors, except that an error of legal judgment with

respect to a person’s obligations under [TILA] is not a

bona fide error.” See Truth in Lending Simplification and

Reform Act, §615, 94 Stat. 181. The absence of a corre

——————

11 That only three Courts of Appeals had occasion to address the ques

tion by the time the FDCPA was enacted does not render such an

inference unreasonable. Contra, post, at 1–2 (opinion of SCALIA, J.).

Whether or not we would take that view when such an inference serves

as a court’s sole interpretative guide, here our conclusion also relies on

common principles of statutory interpretation, as well as the statute’s

text and structure. Moreover, the inference is supported by the fact

that TILA and the FDCPA were enacted as complementary titles of the

CCPA, a comprehensive consumer-protection statute. While not

necessary to our conclusion, evidence from the legislative record dem

onstrates that some Members of Congress understood the relationship

between the FDCPA and existing provisions of the CCPA. See, e.g., 123

Cong. Rec. 10242 (1977) (remarks of Rep. Annunzio) (civil penalty

provisions in House version of bill were “consistent with those in the

[CCPA]”); Fair Debt Collection Practices Act: Hearings on S. 656 et al.

before the Subcommittee on Consumer Affairs of the Senate Committee

on Banking, Housing and Urban Affairs, 95th Cong., 1st Sess., 51, 707

(1977) (statement of Rep. Wylie) (describing “[c]ivil liability provisions”

in the House bill as “the standard provisions that attach to all the titles

of the [CCPA]”).

Cite as: 559 U. S. ____ (2010) 17

Opinion of the Court

sponding amendment to the FDCPA, Carlisle reasons, is

evidence of Congress’ intent to give a more expansive

scope to the FDCPA defense. For several reasons, we

decline to give the 1980 TILA amendment such interpreta

tive weight. For one, it is not obvious that the amendment

changed the scope of TILA’s bona fide error defense in a

way material to our analysis, given the uniform interpre

tations of three Courts of Appeals holding that the TILA

defense does not extend to mistakes of law.12 (Contrary to

——————

12 Although again not necessary to our conclusion, evidence from the

legislative record suggests some Members of Congress understood the

amendment to “clarif[y]” the meaning of TILA’s bona fide error defense

“to make clear that it applies to mechanical and computer errors,

provided they are not the result of erroneous legal judgments as to the

act’s requirements.” S. Rep. No. 96–73, pp. 7–8 (1979); see also Lock

hart, 153 A. L. R. Fed. 211–212, §2[a] (1999) (amendment “was in

tended merely to clarify what was then the prevailing view, that the

bona fide error defense applies to clerical errors, not including errors of

legal judgment”) (relying on S. Rep. No. 96–368, p. 32 (1979)).

The concurring and dissenting opinions perceive an inconsistency

between these references to clerical errors, as well as similar references

in the pre-FDCPA precedents interpreting TILA, n. 10, supra, and

reading the FDCPA’s bona fide error defense to include factual mis

takes. Post, at 2–4, and n. 2 (opinion of SCALIA, J.); post, at 20

(KENNEDY, J., dissenting). The quoted legislative history sources,

however, while stating expressly that the TILA defense excludes legal

errors, do not discuss a distinction between clerical and factual errors.

Similarly, the cited cases interpreting TILA do not address a distinction

between factual and clerical errors; rather, the courts were presented

with claims that the defense applied to mistakes of law or other nonfac

tual errors that the courts found not to be bona fide. See Ives, 522

F. 2d, at 756–757; Haynes, 503 F. 2d, at 1166–1167; Palmer, 502 F. 2d,

at 861. While factual mistakes might, in some circumstances, consti

tute bona fide errors and give rise to violations that are “not inten

tional” within the meaning of §1692k(c), we need not and do not decide

today the precise distinction between clerical and factual errors, or

what kinds of factual mistakes qualify under the FDCPA’s bona fide

error defense. Cf. generally R. Hobbs, National Consumer Law Center,

Fair Debt Collection §7.2 (6th ed. 2008 and Supp. 2009) (surveying case

law on scope of §1692k(c)).

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the dissent’s suggestion, post, at 21, this reading does not

render the 1980 amendment surplusage. Congress may

simply have intended to codify existing judicial interpreta

tions to remove any potential for doubt in jurisdictions

where courts had not yet addressed the issue.) It is also

unclear why Congress would have intended the FDCPA’s

defense to be broader than the one in TILA, which pre

sents at least as significant a set of concerns about impos

ing liability for uncertain legal obligations. See, e.g., Ford

Motor Credit Co. v. Milhollin, 444 U. S. 555, 566 (1980)

(TILA is “ ‘highly technical’ ”). Our reluctance to give

controlling weight to the TILA amendment in construing

the FDCPA is reinforced by the fact that Congress has not

expressly included mistakes of law in any of the numerous

bona fide error defenses, worded in pertinent part identi

cally to §1692k(c), elsewhere in the U. S. Code. Compare,

e.g., 12 U. S. C. §4010(c)(2) (bona fide error defense in

Expedited Funds Availability Act expressly excluding “an

error of legal judgment with respect to [obligations under

that Act]”) with 15 U. S. C. §§1693m(c), 1693h(c) (bona

fide error provisions in the Electronic Fund Transfer Act

that are silent as to errors of legal judgment).13 Although

——————

13 The Government observes that several federal agencies have con

strued similar bona fide error defenses in statutes they administer to

exclude errors of law. See Brief for United States as Amicus Curiae 28–

30. The Secretary of Housing and Urban Development, for instance,

has promulgated regulations specifying that the bona fide error defense

in the Real Estate Settlement Procedures Act of 1974, 12 U. S. C.

§2607(d)(3), does not apply to “[a]n error of legal judgment,” 24 CFR

§3500.15(b)(1)(ii) (2009). While administrative interpretations of other

statutes do not control our reading of the FDCPA, we find it telling that

no agency has adopted the view of the Court of Appeals. Of course,

nothing in our opinion today addresses the validity of such regulations

or the authority of agencies interpreting bona fide error provisions in

other statutes to adopt a different reading. See National Cable &

Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967,

982–983 (2005).

Cite as: 559 U. S. ____ (2010) 19

Opinion of the Court

Carlisle points out that Congress has amended the

FDCPA on several occasions without expressly restricting

the scope of §1692k(c), that does not suggest Congress

viewed the statute as having the expansive reading Car

lisle advances, particularly as not until recently had a

Court of Appeals interpreted the bona fide error defense to

include a violation of the FDCPA resulting from a mistake

of law. See Johnson v. Riddle, 305 F. 3d 1107, 1121–1124,

and nn. 14–15 (CA10 2002).

Carlisle’s reliance on Heintz, 514 U. S. 291, is also un

availing. We held in that case that the FDCPA’s defini

tion of “debt collector” includes lawyers who regularly,

through litigation, attempt to collect consumer debts. Id.,

at 292. We addressed a concern raised by the petitioner

(as here, a lawyer collecting a debt on behalf of a client)

that our reading would automatically render liable “any

litigating lawyer who brought, and then lost, a claim

against a debtor,” on the ground that §1692e(5) prohibits a

debt collector from making any “ ‘threat to take action that

cannot legally be taken.’ ” Id., at 295. We expressed skep

ticism that §1692e(5) itself demanded such a result. But

even assuming the correctness of petitioner’s reading of

§1692e(5), we suggested that the availability of the bona

fide error defense meant that the prospect of liability for

litigating lawyers was not “so absurd” as to warrant im

plying a categorical exemption unsupported by the statu

tory text. Ibid. We had no occasion in Heintz to address

the overall scope of the bona fide error defense. Our dis

cussion of §1692e(5) did not depend on the premise that a

misinterpretation of the requirements of the Act would fall

under the bona fide error defense. In the mine-run law

suit, a lawyer is at least as likely to be unsuccessful be

cause of factual deficiencies as opposed to legal error.

Lawyers can, of course, invoke §1692k(c) for violations

resulting from qualifying factual errors.

Carlisle’s remaining arguments do not change our view

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of §1692k(c). Carlisle perceives an inconsistency between

our reading of the term “intentional” in that provision and

the instruction in §1692k(b) that a court look to whether

“noncompliance was intentional” in assessing statutory

additional damages. But assuming §1692k(b) encom

passes errors of law, we see no conflict, only congruence, in

reading the Act to permit a court to adjust statutory dam

ages for a good-faith misinterpretation of law, even where

a debt collector is not entitled to the categorical protection

of the bona fide error defense. Carlisle is also concerned

that under our reading, §1692k(c) would be unavailable to

a debt collector who violates a provision of the FDCPA

applying to acts taken with particular intent because in

such instances the relevant act would not be uninten

tional. See, e.g., §1692d(5) (prohibiting a debt collector

from “[c]ausing a telephone to ring . . . continuously with

intent to annoy, abuse, or harass”). Including mistakes as

to the scope of such a prohibition, Carlisle urges, would

ensure that §1692k(c) applied throughout the FDCPA. We

see no reason, however, why the bona fide error defense

must cover every provision of the Act.

The parties and amici make arguments concerning the

legislative history that we address for the sake of com

pleteness. Carlisle points to a sentence in a Senate Com

mittee Report stating that “[a] debt collector has no liabil

ity . . . if he violates the act in any manner, including with

regard to the act’s coverage, when such violation is unin

tentional and occurred despite procedures designed to

avoid such violations.” S. Rep. No. 95–382, p. 5 (1977); see

also post, at 4–6 (opinion of SCALIA, J.) (discussing report).

But by its own terms, the quoted sentence does not unam

biguously support Carlisle’s reading. Even if a bona fide

mistake “with regard to the act’s coverage” could be read

in isolation to contemplate a mistake of law, that reading

does not exclude mistakes of fact. A mistake “with regard

to the act’s coverage” may derive wholly from a debt collec

Cite as: 559 U. S. ____ (2010) 21

Opinion of the Court

tor’s factually mistaken belief, for example, that a particu

lar debt arose out of a nonconsumer transaction and was

therefore not “covered” by the Act. There is no reason to

read this passing statement in the Senate Report as con

templating an exemption for legal error that is the product

of an attorney’s erroneous interpretation of the FDCPA—

particularly when attorneys were excluded from the Act’s

definition of “debt collector” until 1986. 100 Stat. 768.

Moreover, the reference to “any manner” of violation is

expressly qualified by the requirements that the violation

be “unintentional” and occur despite maintenance of ap

propriate procedures. In any event, we need not choose

between these possible readings of the Senate Report, as

the legislative record taken as a whole does not lend

strong support to Carlisle’s view.14 We therefore decline to

——————

14 For instance, an amendment was proposed and rejected during the

Senate Banking Committee’s consideration of the FDCPA that would

have required proof that a debt collector’s violation was “knowin[g].”

Senator Riegle, one of the Act’s primary sponsors, opposed the change,

explaining that the bill reflected the view that “certain things ought not

to happen, period. . . . [W]hether somebody does it knowingly, willfully,

you know, with a good heart, bad heart, is really quite incidental.” See

Senate Committee on Banking, Housing and Urban Affairs, Markup

Session: S. 1130—Debt Collection Legislation 60 (July 26, 1977) (here

inafter Markup); see also ibid. (“We have left a way for these disputes

to be adj[u]dicated if they are brought, where somebody can say, I

didn’t know that, or my computer malfunctioned, something happened,

I didn’t intend for the effect to be as it was”). To similar effect, a House

Report on an earlier version of the bill explained the need for new

legislation governing use of the mails for debt collection on grounds

that existing statutes “frequently require[d]” a showing of “specific

intent[,] which is difficult to prove.” H. R. Rep. No. 95–131, p. 3 (1977).

Elsewhere, to be sure, the legislative record contains statements more

supportive of Carlisle’s interpretation. In particular, a concern was

raised in the July 26 markup session that the TILA bona fide error

defense had been interpreted “as only protecting against a mathemati

cal error,” and that the FDCPA defense should “go beyond” TILA to

“allow the courts discretion to dismiss a violation where it was a

technical error.” Markup 20. In response, a staffer explained that the

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give controlling weight to this isolated passage.

B

Carlisle, its amici, and the dissent raise the additional

concern that our reading will have unworkable practical

consequences for debt collecting lawyers. See, e.g., Brief

for Respondents 40–41, 45–48; NARCA Brief 4–16; post, at

5–14. Carlisle claims the FDCPA’s private enforcement

provisions have fostered a “cottage industry” of profes

sional plaintiffs who sue debt collectors for trivial viola

tions of the Act. See Brief for Respondents 40–41. If debt

collecting attorneys can be held personally liable for their

reasonable misinterpretations of the requirements of the

Act, Carlisle and its amici foresee a flood of lawsuits

against creditors’ lawyers by plaintiffs (and their attor

neys) seeking damages and attorney’s fees. The threat of

such liability, in the dissent’s view, creates an irreconcil

able conflict between an attorney’s personal financial

interest and her ethical obligation of zealous advocacy on

behalf of a client: An attorney uncertain about what the

FDCPA requires must choose between, on the one hand,

exposing herself to liability and, on the other, resolving

the legal ambiguity against her client’s interest or advis

ing the client to settle—even where there is substantial

legal authority for a position favoring the client. Post, at

10–14.15

——————

FDCPA defense would “apply to any violation of the act which was

unintentional,” and answered affirmatively when the Chairman asked:

“So it’s not simply a mathematical error but any bona fide error without

intent?” Id., at 21. Whatever the precise balance of these statements

may be, we can conclude that this equivocal evidence from legislative

history does not displace the clear textual and contextual authority

discussed above.

15 The dissent also cites several other consumer-protection statutes,

such as TILA and the Fair Credit Reporting Act, 15 U. S. C. §1681 et

seq., which in its view create “incentives to file lawsuits even where no

actual harm has occurred” and are illustrative of what the dissent

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Opinion of the Court

We do not believe our holding today portends such grave

consequences. For one, the FDCPA contains several pro

visions that expressly guard against abusive lawsuits,

thereby mitigating the financial risk to creditors’ attor

neys. When an alleged violation is trivial, the “actual

damage[s]” sustained, §1692k(a)(1), will likely be de

minimis or even zero. The Act sets a cap on “additional”

damages, §1692k(a)(2), and vests courts with discretion to

adjust such damages where a violation is based on a good

faith error, §1692k(b). One amicus suggests that attor

ney’s fees may shape financial incentives even where

actual and statutory damages are modest. NARCA Brief

11. The statute does contemplate an award of costs and “a

reasonable attorney’s fee as determined by the court” in

the case of “any successful action to enforce the foregoing

liability.” §1692k(a)(3). But courts have discretion in

calculating reasonable attorney’s fees under this statute,16

——————

perceives to be a “troubling dynamic of allowing certain actors in the

system to spin even good-faith, technical violations of federal law into

lucrative litigation.” Post, at 5–6. The dissent’s concern is primarily

with Congress’ policy choice, embodied in statutory text, to authorize

private rights of action and recovery of attorney’s fees, costs, and in

some cases, both actual and statutory damages. As noted, in one of the

statutes the dissent cites, Congress explicitly barred reliance on a

mistake-of-law defense notwithstanding the “highly technical” nature of

the scheme. See 15 U. S. C. §1640(c) (TILA); Ford Motor Credit Co. v.

Milhollin, 444 U. S. 555, 566 (1980). Similarly, the plain text of the

FDCPA authorizes a private plaintiff to recover not only “actual dam

age[s]” for harm suffered but also “such additional damages as the

court may allow,” §1692k(a).

16 The Courts of Appeals generally review a District Court’s calcula

tion of an attorney fee award under §1692k for abuse of discretion. See,

e.g., Carroll v. Wolpoff & Abramson, 53 F. 3d 626, 628–629 (CA4 1995);

Emanuel v. American Credit Exchange, 870 F. 2d 805, 809 (CA2 1989).

Many District Courts apply a lodestar method, permitting downward

adjustments in appropriate circumstances. See, e.g., Schlacher v. Law

Offices of Phillip J. Rotche & Assoc., P. C., 574 F. 3d 852 (CA7 2009)

(relying on Hensley v. Eckerhart, 461 U. S. 424 (1983)); Ferland v.

Conrad Credit Corp., 244 F. 3d 1145, 1148–1151, and n. 4 (CA9 2001)

24 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of the Court

and §1692k(a)(3) authorizes courts to award attorney’s

fees to the defendant if a plaintiff’s suit “was brought in

bad faith and for the purpose of harassment.”

Lawyers also have recourse to the affirmative defense in

§1692k(c). Not every uncertainty presented in litigation

stems from interpretation of the requirements of the Act

itself; lawyers may invoke the bona fide error defense, for

instance, where a violation results from a qualifying fac

tual error. Jerman and the Government suggest that

lawyers can entirely avoid the risk of misinterpreting the

Act by obtaining an advisory opinion from the FTC under

§1692k(e). Carlisle fairly observes that the FTC has not

frequently issued such opinions, and that the average

processing time may present practical difficulties. Indeed,

the Government informed us at oral argument that the

FTC has issued only four opinions in the past decade (in

response to seven requests), and the FTC’s response time

——————

(per curiam); see generally Hobbs, Fair Debt Collection §6.8.6. In

Schlacher, for instance, the court affirmed a downward adjustment for

the “unnecessary use of multiple attorneys . . . in a straightforward,

short-lived [FDCPA] case.” 574 F. 3d, at 854–855. In Carroll, the court

found no abuse of discretion in a District Court’s award of a $500

attorney’s fee, rather than the lodestar amount, where the lawsuit had

recovered only $50 in damages for “at most a technical violation” of the

FDCPA. 53 F. 3d, at 629–631.

Lower courts have taken different views about when, and whether,

§1692k requires an award of attorney’s fees. Compare Tolentino v.

Friedman, 46 F. 3d 645 (CA7 1995) (award of fees to a successful

plaintiff “mandatory”), and Emanuel, supra, at 808–809 (same, even

where the plaintiff suffered no actual damages), with Graziano, 950 F.

2d, at 114, and n. 13 (attorney’s fees may be denied for plaintiff’s “bad

faith conduct”), and Johnson v. Eaton, 80 F. 3d 148, 150–152 (CA5

1996) (“attorney’s fees . . . are only available [under §1692k] where the

plaintiff has succeeded in establishing that the defendant is liable for

actual and/or additional damages”; this reading “will deter suits

brought only as a means of generating attorney’s fees”). We need not

resolve these issues today to express doubt that our reading

of §1692k(c) will impose unmanageable burdens on debt collecting

lawyers.

Cite as: 559 U. S. ____ (2010) 25

Opinion of the Court

has typically been three or four months. Tr. of Oral Arg.

27–28, 30. Without disregarding the possibility that the

FTC advisory opinion process might be useful in some

cases, evidence of present administrative practice makes

us reluctant to place significant weight on §1692k(e) as a

practical remedy for the concerns Carlisle has identified.

We are unpersuaded by what seems an implicit premise

of Carlisle’s arguments: that the bona fide error defense is

a debt collector’s sole recourse to avoid potential liability.

We addressed a similar argument in Heintz, in which the

petitioner urged that certain of the Act’s substantive

provisions would generate “ ‘anomalies’ ” if the term “debt

collector” was read to include litigating lawyers. 514

U. S., at 295. Among other things, the petitioner in Heintz

contended that §1692c(c)’s bar on further communication

with a consumer who notifies a debt collector that she is

refusing to pay the debt would prohibit a lawyer from

filing a lawsuit to collect the debt. Id., at 296–297. We

agreed it would be “odd” if the Act interfered in this way

with “an ordinary debt-collecting lawsuit” but suggested

§1692c(c) did not demand such a reading in light of several

exceptions in the text of that provision itself. Ibid. As in

Heintz, we need not authoritatively interpret the Act’s

conduct-regulating provisions to observe that those provi

sions should not be assumed to compel absurd results

when applied to debt collecting attorneys.

To the extent the FDCPA imposes some constraints on a

lawyer’s advocacy on behalf of a client, it is hardly unique

in our law. “[A]n attorney’s ethical duty to advance the

interests of his client is limited by an equally solemn duty

to comply with the law and standards of professional

conduct.” Nix v. Whiteside, 475 U. S. 157, 168 (1986).

Lawyers face sanctions, among other things, for suits

presented “for any improper purpose, such as to harass,

cause unnecessary delay, or needlessly increase the cost of

litigation.” Fed. Rules Civ. Proc. 11(b), (c). Model rules of

26 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of the Court

professional conduct adopted by many States impose outer

bounds on an attorney’s pursuit of a client’s interests.

See, e.g., ABA Model Rules of Professional Conduct 3.1

(2009) (requiring nonfrivolous basis in law and fact for

claims asserted); 4.1 (truthfulness to third parties). In

some circumstances, lawyers may face personal liability

for conduct undertaken during representation of a client.

See, e.g., Central Bank of Denver, N. A. v. First Interstate

Bank of Denver, N. A., 511 U. S. 164, 191 (1994) (“Any

person or entity, including a lawyer, . . . who employs a

manipulative device or makes a material misstatement (or

omission) on which a purchaser or seller of securities

relies may be liable as a primary violator under [Securities

and Exchange Commission Rule] 10b–5”).

Moreover, a lawyer’s interest in avoiding FDCPA liabil

ity may not always be adverse to her client. Some courts

have held clients vicariously liable for their lawyers’ viola

tions of the FDCPA. See, e.g., Fox v. Citicorp Credit

Servs., Inc., 15 F. 3d 1507, 1516 (CA9 1994); see also First

Interstate Bank of Fort Collins, N. A. v. Soucie, 924 P. 2d

1200, 1202 (Colo. App. 1996).

The suggestion that our reading of §1692k(c) will create

unworkable consequences is also undermined by the exis

tence of numerous state consumer protection and debt

collection statutes that contain bona fide error defenses

that are either silent as to, or expressly exclude, legal

errors.17 Several States have enacted debt collection

statutes that contain neither an exemption for attorney

debt collectors nor any bona fide error defense at all. See,

e.g., Mass. Gen. Laws, ch. 93, §49 (West 2008); Md. Com.

Law Code Ann. §14–203 (Lexis 2005); Ore. Rev. Stat.

——————

17 SeeBrief for Ohio Creditor’s Attorneys Association et al. as Amici

Curiae 4–6, and nn. 7–8 (identifying “134 state consumer protection

and debt collection statutes,” 42 of which expressly exclude legal errors

from their defenses for bona fide errors).

Cite as: 559 U. S. ____ (2010) 27

Opinion of the Court

§646.641 (2007); Wis. Stat. §427.105 (2007–2008). More

generally, a group of 21 States as amici supporting Jer

man inform us they are aware of “no [judicial] decisions

interpreting a parallel state bona fide error provision [in a

civil regulatory statute] to immunize a defendant’s mis

take of law,” except in a minority of statutes that ex

pressly provide to the contrary.18 See Brief for State of

New York et al. as Amici Curiae 11, and n. 6. Neither

Carlisle and its amici nor the dissent demonstrate that

lawyers have suffered drastic consequences under these

state regimes.

In the dissent’s view, these policy concerns are evidence

that “Congress could not have intended” the reading we

adopt today. Post, at 5. But the dissent’s reading raises

concerns of its own. The dissent focuses on the facts of

this case, in which an attorney debt collector, in the dis

sent’s view, “acted reasonably at every step” and commit

ted a “technical violation” resulting in no “actual harm” to

the debtor. Post, at 12, 6, 8. But the dissent’s legal theory

does not limit the defense to attorney debt collectors or

“technical” violations.19 Under that approach, it appears,

nonlawyer debt collectors could obtain blanket immunity

for mistaken interpretations of the FDCPA simply by

seeking the advice of legal counsel. Moreover, many debt

collectors are compensated with a percentage of money

recovered, and so will have a financial incentive to press

——————

18 See, e.g., Kan. Stat. Ann. §16a–5–201(7) (2007) (provision of Kansas

Consumer Credit Code providing a defense for a “bona fide error of law

or fact”); Ind. Code §24–9–5–5 (West 2004) (defense for creditor’s “bona

fide error of law or fact” in Indiana Home Loan Practices Act).

19 The dissent also downplays the predicate fact that respondents in

this case brought a foreclosure lawsuit against Jerman for a debt she

had already repaid. Neither the lower courts nor this Court have been

asked to consider, and thus we express no view about, whether Carlisle

could be subject to liability under the FDCPA for that uncontested

error—regardless of how reasonably Carlisle may have acted after the

mistake was pointed out by Jerman’s (privately retained) lawyer.

28 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of the Court

the boundaries of the Act’s prohibitions on collection tech

niques. It is far from obvious why immunizing debt collec

tors who adopt aggressive but mistaken interpretations of

the law would be consistent with the statute’s broadly

worded prohibitions on debt collector misconduct. Jerman

and her amici express further concern that the dissent’s

reading would give a competitive advantage to debt collec

tors who press the boundaries of lawful conduct. They

foresee a “race to the bottom” driving ethical collectors out

of business. Brief for Petitioner 32; Brief for Public Citi

zen et al. as Amici Curiae 16–18. It is difficult to square

such a result with Congress’ express purpose “to eliminate

abusive debt collection practices by debt collectors, [and]

to insure that those debt collectors who refrain from using

abusive debt collection practices are not competitively

disadvantaged,” §1692(e).

The dissent’s reading also invites litigation about a debt

collector’s subjective intent to violate the FDCPA and the

adequacy of procedures maintained to avoid legal error.

Cf. Barlow, 7 Pet., at 411 (maxim that ignorance of the

law will not excuse civil or criminal liability “results from

the extreme difficulty of ascertaining what is, bona fide,

the interpretation of the party”). Courts that read

§1692k(c) to permit a mistake-of-law defense have adopted

varying formulations of what legal procedures are “rea

sonably adapted to avoid any [legal] error.”20 Among other

uncertainties, the dissent does not explain whether it

——————

20 Compare Hartman v. Great Senaca Financial Corp., 569 F. 3d 606,

614–615 (CA6 2009) (suggesting that reasonable procedures might

include “perform[ing] ongoing FDCPA training, procur[ing] the most

recent case law, or hav[ing] an individual responsible for continuing

compliance with the FDCPA”), with Johnson v. Riddle, 443 F. 3d 723,

730–731 (CA10 2006) (suggesting that researching case law and filing a

test case might be sufficient, but remanding for a jury determination of

whether the “limited [legal] analysis” undertaken was sufficient and

whether the test case was in fact a “sham”).

Cite as: 559 U. S. ____ (2010) 29

Opinion of the Court

would read §1692k(c) to impose a heightened standard for

the procedures attorney debt collectors must maintain, as

compared to nonattorney debt collectors. The increased

cost to prospective plaintiffs in time, fees, and uncertainty

of outcome may chill private suits under the statutory

right of action, undermining the FDCPA’s calibrated

scheme of statutory incentives to encourage self

enforcement. Cf. FTC, Collecting Consumer Debts: The

Challenge of Change 67 (2009) (“Because the Commission

receives more than 70,000 third-party debt collection

complaints per year, it is not feasible for federal govern

ment law enforcement to be the exclusive or primary

means of deterring all possible law violations”). The state

amici predict that, on the dissent’s reading, consumers

will have little incentive to bring enforcement actions

“where the law [i]s at all unsettled, because in such cir

cumstances a debt collector could easily claim bona fide

error of law”; in the States’ view, the resulting “enforce

ment gap” would be “extensive” at both the federal and

State levels. See Brief for State of New York et al. as

Amici Curiae 7–10. In short, the policy concerns identified

by the dissent tell only half the story.21

In sum, we do not foresee that our decision today will

place unmanageable burdens on lawyers practicing in the

debt collection industry. To the extent debt collecting

lawyers face liability for mistaken interpretations of the

requirements of the FDCPA, Carlisle, its amici, and the

dissent have not shown that “the result [will be] so absurd

as to warrant” disregarding the weight of textual author

——————

21 The dissent adds in passing that today’s decision “creates serious

concerns . . . for First Amendment rights.” Post, at 13 (citing Legal

Services Corporation v. Velazquez, 531 U. S. 533, 545 (2001)). That

claim was neither raised nor passed upon below, and was mentioned

neither in the certiorari papers nor the parties’ merits briefing to this

Court. We decline to express any view on it. See Cutter v. Wilkinson,

544 U. S. 709, 718, n. 7 (2005).

30 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of the Court

ity discussed above. Heintz, 514 U. S., at 295. Absent

such a showing, arguments that the Act strikes an unde

sirable balance in assigning the risks of legal misinterpre

tation are properly addressed to Congress. To the extent

Congress is persuaded that the policy concerns identified

by the dissent require a recalibration of the FDCPA’s

liability scheme, it is, of course, free to amend the statute

accordingly.22 Congress has wide latitude, for instance, to

revise §1692k to excuse some or all mistakes of law or

grant broader discretion to district courts to adjust a

plaintiff’s recovery. This Court may not, however, read

more into §1692k(c) than the statutory language naturally

supports. We therefore hold that the bona fide error de

fense in §1692k(c) does not apply to a violation of the

FDCPA resulting from a debt collector’s incorrect interpre

tation of the requirements of that statute.

* * *

For the reasons discussed above, the judgment of the

United States Court of Appeals for the Sixth Circuit is

reversed, and the case is remanded for further proceedings

consistent with this opinion.

It is so ordered.

——————

22 The FDCPA has been amended some eight times since its enact

ment in 1977; the most recent amendment addressed a concern not

unrelated to the question we consider today, specifying that a pleading

in a civil action is not an “initial communication” triggering obligations

under §1692g requiring a written notice to the consumer. Financial

Services Regulatory Relief Act of 2006, §802(a), 120 Stat. 2006 (codified

at 15 U. S. C. §1692g(d)).

Cite as: 559 U. S. ____ (2010) 1

BREYER, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1200

_________________

KAREN L. JERMAN, PETITIONER v. CARLISLE, MC-

NELLIE, RINI, KRAMER & ULRICH LPA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[April 21, 2010]

JUSTICE BREYER, concurring.

As respondents point out, the Court’s interpretation of

the Fair Debt Collection Practices Act may create a di

lemma for lawyers who regularly engage in debt collection,

including through litigation. See Brief for Respondents

44–48; Heintz v. Jenkins, 514 U. S. 291 (1995). Can those

lawyers act in the best interests of their clients if they face

personal liability when they rely on good-faith interpreta

tions of the Act that are later rejected by a court? Or will

that threat of personal liability lead them to do less than

their best for those clients?

As the majority points out, however, the statute offers a

way out of—though not a panacea for—this dilemma.

Ante, at 13–14, 24–25. Faced with legal uncertainty, a

lawyer can turn to the Federal Trade Commission (FTC or

Commission) for an advisory opinion. 16 CFR §§1.1 to 1.4

(2009). And once he receives that opinion and acts upon it

the dilemma disappears: If he fails to follow the opinion,

he has not acted in good faith and can fairly be held liable.

If he follows the opinion, the statute frees him from any

such liability. 15 U. S. C. §1692k(e) (debt collectors im

mune from liability for “any act done or omitted in . . .

conformity with any advisory opinion of the [Federal

Trade] Commission”). See also R. Hobbs et al., National

Consumer Law Center, Fair Debt Collection §§6.12.2, 7.3

2 JERMAN v. CARLISLE, MCNELLIE, RINI,

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BREYER, J., concurring

(6th ed. 2008).

The FTC, of course, may refuse to issue such an opinion.

See, e.g., 16 CFR §1.1 (providing that the Commission will

issue advisory opinions “where practicable” and only when

“[t]he matter involves a substantial or novel question of

fact or law and there is no clear Commission or court

precedent” or “is of significant public interest”). Appar

ently, within the past decade, the FTC has received only

seven requests and issued four opinions. See Tr. of

Oral Arg. 27–28; see also Federal Trade Commis-

sion,Commission FDCPA Advisory Opinions, online at

http://www.ftc.gov/os/statutes/fdcpajump.shtm (as visited

Apr. 19, 2010, and available in Clerk of Court’s case file).

Yet, should the dilemma I have described above prove

serious, I would expect the FTC to receive more requests

and to respond to them, thereby reducing the scope of the

problem to the point where other available tools, e.g.,

damages caps and vicarious liability, will prove adequate.

See ante, at 23–27. On this understanding, I agree with

the Court and join its opinion.

Cite as: 559 U. S. ____ (2010) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1200

_________________

KAREN L. JERMAN, PETITIONER v. CARLISLE, MC-

NELLIE, RINI, KRAMER & ULRICH LPA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[April 21, 2010]

JUSTICE SCALIA, concurring in part and concurring in

the judgment.

I join the Court’s opinion except for its reliance upon two

legal fictions. A portion of the Court’s reasoning consists

of this: The language in the Fair Debt Collection Practices

Act (FDCPA or Act) tracks language in the Truth in Lend

ing Act (TILA); and in the nine years between the enact

ment of TILA and the enactment of the FDCPA, three

Courts of Appeals had “interpreted TILA’s bona fide error

defense as referring to clerical errors.” Ante, at 14. Rely

ing on our statement in Bragdon v. Abbott, 524 U. S. 624,

645 (1998), that Congress’s repetition, in a new statute, of

statutory language with a “ ‘settled’ ” judicial interpreta

tion indicates “ ‘the intent to incorporate its . . . judicial

interpretations as well,’ ” the Court concludes that these

three Court of Appeals cases “suppor[t] an inference that

Congress understood the statutory formula it chose for the

FDCPA consistent with Federal Court of Appeals interpre

tations of TILA.” Ante, at 14–16.

Let me assume (though I do not believe it) that what

counts is what Congress “intended,” even if that intent

finds no expression in the enacted text. When a large

majority of the Circuits, over a lengthy period of time,

have uniformly reached a certain conclusion as to the

meaning of a particular statutory text, it may be reason

2 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of SCALIA, J.

able to assume that Congress was aware of those holdings,

took them to be correct, and intended the same meaning in

adopting that text.1 It seems to me unreasonable, how

ever, to assume that, when Congress has a bill before it

that contains language used in an earlier statute, it is

aware of, and approves as correct, a mere three Court of

Appeals decisions interpreting that earlier statute over

the previous nine years. Can one really believe that a

majority in both Houses of Congress knew of those three

cases, and accepted them as correct (even when, as was

the case here, some District Court opinions and a State

Supreme Court opinion had concluded, to the contrary,

that the defense covered legal errors, see ante, at 14–15,

n. 10)? This is a legal fiction, which has nothing to be said

for it except that it can sometimes make our job easier.

The Court acknowledges that “the interpretations of three

Federal Courts of Appeals may not have ‘settled’ the

meaning of TILA’s bona fide error defense,” but says

“there is no reason to suppose that Congress disagreed

with those interpretations.” Ante, at 15–16. Perhaps not;

but no reason to suppose that it knew of and agreed with

them either—which is presumably the proposition for

which the Court cites them.

Even assuming, moreover, that Congress knew and

approved of those cases, they would not support the

Court’s conclusion today. All three of them said that

TILA’s bona fide error defense covered only clerical errors.

See Ives v. W. T. Grant Co., 522 F. 2d 749, 758 (CA2 1975)

(“only available for clerical errors”); Haynes v. Logan

——————

1 Of course where so many federal courts have read the language that

way, the text was probably clear enough that resort to unexpressed

congressional intent would be unnecessary. Or indeed it could be said

that such uniform and longstanding judicial interpretation had estab

lished the public meaning of the text, whether the Members of Con

gress were aware of the cases or not. That would be the understanding

of the text by reasonable people familiar with its legal context.

Cite as: 559 U. S. ____ (2010) 3

Opinion of SCALIA, J.

Furniture Mart, Inc., 503 F. 2d 1161, 1167 (CA7 1974)

(“basically only clerical errors”); Palmer v. Wilson, 502

F. 2d 860, 861 (CA9 1974) (“[C]lerical errors . . . are the

only violations this section was designed to excuse”). Yet

the Court specifically interprets the identical language in

the FDCPA as providing a defense not only for clerical

errors, but also for factual errors. See ante, at 19, 24; see

also ante, at 20–21 (suggesting the same). If the Court

really finds the three Courts of Appeals’ interpretations of

TILA indicative of congressional intent in the FDCPA, it

should restrict its decision accordingly. As for me, I sup

port the Court’s inclusion of factual errors, because there

is nothing in the text of the FDCPA limiting the excusable

“not intentional” violations to those based on clerical

errors, and since there is a long tradition in the common

law and in our construction of federal statutes distinguish

ing errors of fact from errors of law.

The Court’s opinion also makes fulsome use of that

other legal fiction, legislative history, ranging from a

single Representative’s floor remarks on the House bill

that became the FDCPA, ante, at 16, n. 11, to a single

Representative’s remarks in a Senate Subcommittee

hearing on the House bill and three Senate bills, ibid., to

two 1979 Senate Committee Reports dealing not with the

FDCPA but with the 1980 amendments to TILA, ante, at

17, n. 12, to remarks in a Committee markup of the Sen

ate bill on the FDCPA, ante, at 21–22, n. 14, to a House

Report dealing with an earlier version of the FDCPA, ibid.

Is the conscientious attorney really expected to dig out

such mini-nuggets of “congressional intent” from floor

remarks, committee hearings, committee markups, and

committee reports covering many different bills over many

years? When the Court addresses such far-afield legisla

tive history merely “for the sake of completeness,” ante, at

20, it encourages and indeed prescribes such wasteful

over-lawyering.

4 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of SCALIA, J.

As it happens, moreover, one of the supposedly most

“authoritative” snippets of legislative history, a Senate

Committee Report dealing with the meaning of TILA,

states very clearly that the 1980 amendment to TILA’s

bona fide error defense “clarified” the defense “to make

clear that it applies to mechanical and computer errors,”

S. Rep. No. 96–73, pp. 7–8 (1979). Likewise, the 1999

American Law Report the Court cites, ante, at 17, n. 12,

which relies on another Senate Committee Report, de

scribes the amendment as clarifying the “prevailing view”

that the defense “applies to clerical errors,” Lockhart, 153

A. L. R. Fed. 211–212, §2[a] (1999).2 Once again, the legal

fiction contradicts the Court’s conclusion that the lan

guage in the FDCPA, identical to the original TILA de

fense, applies to mistakes of fact.

But if legislative history is to be used, it should be used

impartially. (Legislative history, after all, almost always

has something for everyone!) The Court dismisses with a

wave of the hand what seems to me the most persuasive

legislative history (if legislative history could ever be

persuasive) in the case. The respondents point to the

Senate Committee Report on the FDCPA, which says that

“[a] debt collector has no liability . . . if he violates the act

in any manner, including with regard to the act’s coverage,

when such violation is unintentional and occurred despite

procedures designed to avoid such violations.” S. Rep. No.

95–382, p. 5 (1977) (emphasis added). The Court claims

that a mistake about “the act’s coverage” in this passage

might refer to factual mistakes, such as a debt collector’s

mistaken belief “that a particular debt arose out of a

nonconsumer transaction and was therefore not ‘covered’

——————

2 The page cited in the Senate Committee Report does not actually

support the American Law Report’s statement. It makes no mention of

clarification or judicial interpretations; it merely states that the

amendment is intended to “provide protection where errors are clerical

or mechanical in nature,” S. Rep. No. 96–368, p. 32 (1979).

Cite as: 559 U. S. ____ (2010) 5

Opinion of SCALIA, J.

by the Act,” ante, at 21. The Court’s explanation seems to

me inadequate. No lawyer—indeed, no one speaking

accurately—would equate a mistake regarding the Act’s

coverage with a mistake regarding whether a particular

fact situation falls within the Act’s coverage. What the

Act covers (“the act’s coverage”) is one thing; whether a

particular case falls within the Act’s coverage is something

else.

Even if (contrary to my perception) the phrase could be

used to refer to both these things, by what principle does

the Court reject the more plausible meaning? The fact

that “attorneys were excluded from the Act’s definition of

‘debt collector’ until 1986,” ibid., does not, as the Court

contends, support its conclusion that errors of law are not

covered. Attorneys are not the only ones who would have

been able to claim a legal-error defense; non-attorneys

make legal mistakes too. They also sometimes receive and

rely upon erroneous legal advice from attorneys. Indeed,

if anyone could satisfy the defense’s requirement of main

taining “procedures reasonably adapted to avoid” a legal

error, it would be a non-attorney debt collector who fol

lows the procedure of directing all legal questions to his

attorney.

The Court also points to “equivocal” evidence from the

Senate Committee’s final markup session, ante, at 21–22,

n. 14, but it minimizes a decidedly unhelpful discussion of

the scope of the defense during the session. In response to

concern that the defense would be construed, like the

TILA defense, as “only protecting against a mathematical

error,” a staff member explained that, because of differ

ences in the nature of the statutes, the FDCPA defense

was broader than the TILA defense and “would apply to

any violation of the act which was unintentional.” See

Senate Committee on Banking, Housing and Urban Af

fairs, Markup Session: S. 1130—Debt Collection Legisla

tion 20–21 (July 26, 1977) (emphasis added). The Chair

6 JERMAN v. CARLISLE, MCNELLIE, RINI,

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Opinion of SCALIA, J.

man then asked: “So it’s not simply a mathematical error

but any bona fide error without intent?” Id., at 21 (em

phasis added). To which the staff member responded:

“That’s correct.” Ibid. The repeated use of “any”—“any

violation” and “any bona fide error”—supports the natural

reading of the Committee Report’s statement regarding

“the act’s coverage” as including legal errors about the

scope of the Act, rather than just factual errors.

The Court ultimately dismisses the Senate Committee

Report on the ground that “the legislative record taken as

a whole does not lend strong support to Carlisle’s view.”

Ante, at 21. I think it more reasonable to give zero weight

to the other snippets of legislative history that the Court

relies upon, for the reason that the Senate Committee

Report on the very bill that became the FDCPA flatly

contradicts them. It is almost invariably the case that our

opinions benefit not at all from the make-weight use of

legislative history. But today’s opinion probably suffers

from it. Better to spare us the results of legislative-history

research, however painfully and exhaustively conducted it

might have been.

The Court’s textual analysis stands on its own, without

need of (or indeed any assistance from) the two fictions I

have discussed. Accordingly, I concur in the judgment of

the Court.

Cite as: 559 U. S. ____ (2010) 1

KENNEDY, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1200

_________________

KAREN L. JERMAN, PETITIONER v. CARLISLE, MC-

NELLIE, RINI, KRAMER & ULRICH LPA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[April 21, 2010]

JUSTICE KENNEDY, with whom JUSTICE ALITO joins,

dissenting.

The statute under consideration is the Fair Debt Collec

tion Practices Act (FDCPA), 15 U. S. C. §1692 et seq. The

statute excepts from liability a debt collector’s “bona fide

error[s],” provided that they were “not intentional” and

reasonable procedures have been maintained to avoid

them. §1692k(c). The Court today interprets this excep

tion to exclude legal errors. In doing so, it adopts a ques

tionable interpretation and rejects a straightforward,

quite reasonable interpretation of the statute’s plain

terms. Its decision aligns the judicial system with those

who would use litigation to enrich themselves at the ex

pense of attorneys who strictly follow and adhere to pro

fessional and ethical standards.

When the law is used to punish good-faith mistakes;

when adopting reasonable safeguards is not enough to

avoid liability; when the costs of discovery and litigation

are used to force settlement even absent fault or injury;

when class-action suits transform technical legal viola

tions into windfalls for plaintiffs or their attorneys, the

Court, by failing to adopt a reasonable interpretation to

counter these excesses, risks compromising its own insti

tutional responsibility to ensure a workable and just

litigation system. The interpretation of the FDCPA the

2 JERMAN v. CARLISLE, MCNELLIE, RINI,

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KENNEDY, J., dissenting

Court today endorses will entrench, not eliminate, some of

the most troubling aspects of our legal system. Convinced

that Congress did not intend this result, I submit this

respectful dissent.

I

A

The FDCPA addresses “abusive debt collection prac

tices,” §1692(e), by regulating interactions between com

mercial debt collectors and consumers. See ante, at 1–2.

The statute permits private suits against debt collectors

who violate its provisions. §1692k(a). An exception

to liability is provided by the so-called bona fide error

defense:

“A debt collector may not be held liable in any action

. . . if the debt collector shows by a preponderance of

evidence that the violation was not intentional and

resulted from a bona fide error notwithstanding the

maintenance of procedures reasonably adapted to

avoid any such error.” §1692k(c).

This language does not exclude mistakes of law and is

most naturally read to include them. Certainly a mis

taken belief about the law is, if held in good faith, a “bona

fide error” as that phrase is normally understood. See

Black’s Law Dictionary 582 (8th ed. 2004) (defining “error”

as “a belief that what is false is true or that what is true is

false,” def. 1); ibid. (“[a] mistake of law or of fact in a

tribunal’s judgment, opinion, or order,” def. 2); ibid. (list

ing categories of legal errors).

The choice of words provides further reinforcement for

this view. The bona fide error exception in §1692k(c)

applies if “the violation was not intentional and resulted

from a bona fide error.” The term “violation” specifically

denotes a legal infraction. See id., at 1600 (“An infraction

or breach of the law; a transgression,” def. 1). The statu

Cite as: 559 U. S. ____ (2010) 3

KENNEDY, J., dissenting

tory term “violation” thus stands in direct contrast to

other provisions of the FDCPA that describe conduct itself.

This applies both to specific terms, e.g., §1692e (“A debt

collector may not use any false, deceptive, or misleading

representation or means in connection with the collection

of any debt”), and to more general ones, e.g., §1692k(e)

(referring to “any act done or omitted in good faith”). By

linking the mens rea requirement (“not intentional”) with

the word “violation”—rather than with the conduct giving

rise to the violation—the Act by its terms indicates that

the bona fide error exception applies to legal errors as well

as to factual ones.

The Court’s precedents accord with this interpretation.

Federal statutes that link the term “violation” with a mens

rea requirement have been interpreted to excuse good

faith legal mistakes. See, e.g., McLaughlin v. Richland

Shoe Co., 486 U. S. 128, 129, 133 (1988) (the phrase “aris

ing out of a willful violation” in the Fair Labor Standards

Act applies where an employer “either knew or showed

reckless disregard for the matter of whether its conduct

was prohibited by the statute”); Trans World Airlines, Inc.

v. Thurston, 469 U. S. 111, 125, 126 (1985) (damages

provision under the Age Discrimination in Employment

Act, which applies “only in cases of willful violations,”

creates liability where an employer “knew or showed

reckless disregard for the matter of whether its conduct

was prohibited by the ADEA” (internal quotation marks

omitted)); cf. Liparota v. United States, 471 U. S. 419, 428

(1985) (prohibition on use of food stamps “ ‘knowing [them]

to have been received . . . in violation of’ ” federal law

“undeniably requires a knowledge of illegality” (emphasis

deleted)). The FDCPA’s use of “violation” thus distin

guishes it from most of the authorities relied upon by the

Court to demonstrate that mistake-of-law defenses are

disfavored. See, e.g., ante, at 7–8 (citing Kolstad v. Ameri

can Dental Assn., 527 U. S. 526 (1999)).

4 JERMAN v. CARLISLE, MCNELLIE, RINI,

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KENNEDY, J., dissenting

The Court’s response is that there is something distinc

tive about the word “willful” that suggests an excuse for

mistakes of law. This may well be true for criminal stat

utes, in which the terms “ ‘knowing,’ ‘intentional’ [and]

‘willful’ ” have been distinguished in this regard. Ante, at

10 (citing Safeco Ins. Co. of America v. Burr, 551 U. S. 47,

57 (2007)). But this distinction is specific to the criminal

context:

“It is different in the criminal law. When the term

‘willful’ or ‘willfully’ has been used in a criminal stat

ute, we have regularly read the modifier as limiting

liability to knowing violations. This reading of the

term, however, is tailored to the criminal law, where

it is characteristically used to require a criminal in

tent beyond the purpose otherwise required for guilt,

or an additional ‘bad purpose,’ or specific intent to vio

late a known legal duty created by highly technical

statutes.” Id., at 57–58, n. 9 (citations omitted).

For this reason, the Court’s citation to criminal cases,

which are themselves inconsistent, see Ratzlaf v. United

States, 510 U. S. 135 (1994), is unavailing. See ante, at

10–11, and n. 7.

In the civil context, by contrast, the word “willful” has

been used to impose a mens rea threshold for liability that

is lower, not higher, than an intentionality requirement.

See Safeco, supra, at 57 (“[W]here willfulness is a statu

tory condition of civil liability, we have generally taken it

to cover not only knowing violations of a standard, but

reckless ones as well”). Avoiding liability under a statute

aimed at intentional violations should therefore be easier,

not harder, than avoiding liability under a statute aimed

at willful violations. And certainly there is nothing in

Thurston or McLaughlin—both civil cases—suggesting

that they would have come out differently had the rele

vant statutes used “intentional violation” rather than

Cite as: 559 U. S. ____ (2010) 5

KENNEDY, J., dissenting

“willful violation.”

B

These considerations suffice to show that §1692k(c) is

most reasonably read to include mistakes of law. Even if

this were merely a permissible reading, however, it should

be adopted to avoid the adverse consequences that must

flow from the Court’s contrary decision. The Court’s read

ing leads to results Congress could not have intended.

1

The FDCPA is but one of many federal laws that Con

gress has enacted to protect consumers. A number of

these statutes authorize the filing of private suits against

those who use unfair or improper practices. See, e.g., 15

U. S. C. §1692k (FDCPA); §1640 (Truth in Lending Act);

§1681n (Fair Credit Reporting Act); 49 U. S. C. §32710

(Federal Odometer Disclosure Act); 11 U. S. C. §526(c)(2)

(Bankruptcy Abuse Prevention and Consumer Protection

Act of 2005). Several of these provisions permit a success

ful plaintiff to recover—in addition to actual damages—

statutory damages, attorney’s fees and costs, and in some

cases punitive damages. E.g., 15 U. S. C. §1640(a)(2)

(statutory damages); §1640(a)(3) (attorney’s fees and

costs); §1681n(a)(1)(B) (statutory and punitive damages);

§1681n(a)(1)(B)(3) (costs and attorney’s fees); 49 U. S. C.

§32710(a) (“3 times the actual damages or $1,500, which

ever is greater”); §32710(b) (costs and attorney’s fees); 11

U. S. C. §526(c)(3)(A) (costs and attorney’s fees). Some

also explicitly permit class-action suits. E.g., 15 U. S. C.

§1640(a)(2)(B); §1692k(a)(2)(B).

A collateral effect of these statutes may be to create

incentives to file lawsuits even where no actual harm has

occurred. This happens when the plaintiff can recover

statutory damages for the violation and his or her attorney

will receive fees if the suit is successful, no matter how

slight the injury. A favorable verdict after trial is not

6 JERMAN v. CARLISLE, MCNELLIE, RINI,

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KENNEDY, J., dissenting

necessarily the goal; often the plaintiff will be just as

happy with a settlement, as will his or her attorney (who

will receive fees regardless). The defendant, meanwhile,

may conclude a quick settlement is preferable to the costs

of discovery and a protracted trial. And if the suit attains

class-action status, the financial stakes rise in magnitude.

See, e.g., §1640(a)(2)(B) (class-action recovery of up to “the

lesser of $500,000 or 1 per centum of the net worth of the

[defendant]”); §1692k(a)(2)(B) (same).

The present case offers an object lesson. Respondents

filed a complaint in state court on behalf of a client that

mistakenly believed Jerman owed money to it. Jerman’s

attorney then informed respondents that the debt had

been paid in full. Respondents confirmed this fact with

the client and withdrew the lawsuit.

This might have been the end of the story. But because

respondents had informed Jerman that she was required

to dispute the debt in writing, she filed a class-action

complaint. It did not matter that Jerman had claimed no

harm as a result of respondents’ actions. Jerman sued for

damages, attorney’s fees, and costs—including class dam

ages of “$500,000 or 1% of defendants’ net worth which

ever is less.” Amended Complaint in No. 1:06–CV–01397

(ND Ohio), p. 4. In addition to merits-related discovery,

Jerman sought information from respondents concerning

the income and net worth of each partner in the firm. At

some point, Jerman proposed to settle with respondents

for $15,000 in damages and $7,500 in attorney’s fees.

Amended Joint App. in No. 07–3964 (CA6), pp. 256–262.

The case illustrates how a technical violation of a complex

federal statute can give rise to costly litigation with incen

tives to settle simply to avoid attorney’s fees.

Today’s holding gives new impetus to this already trou

bling dynamic of allowing certain actors in the system to

spin even good-faith, technical violations of federal law

into lucrative litigation, if not for themselves then for the

Cite as: 559 U. S. ____ (2010) 7

KENNEDY, J., dissenting

attorneys who conceive of the suit. See Federal Home

Loan Mortgage Corp. v. Lamar, 503 F. 3d 504, 513 (CA6

2007) (referring to the “cottage industry” of litigation that

has arisen out of the FDCPA (internal quotation marks

omitted)). It is clear that Congress, too, was troubled by

this dynamic. That is precisely why it enacted a bona fide

error defense. The Court’s ruling, however, endorses and

drives forward this dynamic, for today’s holding leaves

attorneys and their clients vulnerable to civil liability for

adopting good-faith legal positions later determined to be

mistaken, even if reasonable efforts were made to avoid

mistakes.

The Court seeks to brush aside these concerns by noting

that trivial violations will give rise to little in the way of

actual damages and that trial courts “have discretion in

calculating reasonable attorney’s fees under [the] statute.”

Ante, at 23. It is not clear, however, that a court is per

mitted to adjust a fee award based on its assessment of

the suit’s utility. Cf. Perdue v. Kenny A., post, at 9 (noting

a “ ‘strong presumption’ ” of reasonableness that attaches

to a lodestar calculation of attorney’s fees). Though the

Court, properly, does not address the question here, it

acknowledges that some courts have deemed fee awards to

victorious plaintiffs to be “ ‘mandatory,’ ” even if the plain

tiff suffered no damage. Ante, at 23–24, n. 16.

The Court’s second response is that the FDCPA guards

against abusive suits and that suits brought “ ‘in bad faith

and for the purpose of harassment’ ” can lead to a fee

award for the defendant. Ante, at 24 (quoting

§1692k(a)(3)). Yet these safeguards cannot deter suits

based on technical—but harmless—violations of the stat

ute. If the plaintiff obtains a favorable judgment or a

settlement, then by definition the suit will not have been

brought in bad faith. See Emanuel v. American Credit

Exch., 870 F. 2d 805, 809 (CA2 1989) (FDCPA defendant’s

“claim for malicious prosecution cannot succeed unless the

8 JERMAN v. CARLISLE, MCNELLIE, RINI,

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KENNEDY, J., dissenting

action subject of the claim is unsuccessful”).

Again the present case is instructive. Jerman brought

suit without pointing to any actual harm that resulted

from respondents’ actions. At the time her complaint was

filed, it was an open question in the Sixth Circuit whether

a debt collector could demand that a debt be disputed in

writing, and the district courts in the Circuit had reached

different answers. Ante, at 4, n. 2. The trial court in this

case happened to side with Jerman on the issue, 464

F. Supp. 2d 720, 722–725 (ND Ohio 2006), but it seems

unlikely that the court would have labeled her suit “abu

sive” or “in bad faith” even if it had gone the other way.

There is no good basis for optimism, then, when one

contemplates the practical consequences of today’s deci

sion. Given the complexity of the FDCPA regime, see 16

CFR pt. 901 (2009) (FDCPA regulations), technical viola

tions are likely to be common. Indeed, the Court acknowl

edges that they are inevitable. See ante, at 12. As long as

legal mistakes occur, plaintiffs and their attorneys will

have an incentive to bring suits for these infractions. It

seems unlikely that Congress sought to create a system

that encourages costly and time-consuming litigation over

harmless violations committed in good faith despite rea

sonable safeguards.

When construing a federal statute, courts should be

mindful of the effect of the interpretation on congressional

purposes explicit in the statutory text. The FDCPA states

an objective that today’s decision frustrates. The statu

tory purpose was to “eliminate abusive debt collection

practices” and to ensure that debt collectors who refrain

from using those practices “are not competitively disad

vantaged.” 15 U. S. C. §1692(e) (“Purposes”). The prac

tices Congress addressed involved misconduct that is

deliberate, see §1692(a) (“abusive, deceptive, and unfair

debt collection practices”); §1692(c) (“misrepresentation or

other abusive debt collection practices”), or unreasonable,

Cite as: 559 U. S. ____ (2010) 9

KENNEDY, J., dissenting

see §1692c(a)(1) (prohibiting debt collectors from commu

nicating with debtors at times “which should be known” to

be inconvenient); §1692e(8) (prohibiting the communica

tion of credit card information “which should be known to

be false”). That explains the statutory objective not to

disadvantage debt collectors who “refrain” from abusive

practices—that is to say, debt collectors who do not inten

tionally or unreasonably adopt them. It further explains

why Congress included a good-faith error exception,

which exempts violations that are not intentional or

unreasonable.

In referring to “abusive debt collection practices,” how

ever, surely Congress did not contemplate attorneys who

act based on reasonable, albeit ultimately mistaken, legal

interpretations. A debt collector does not gain a competi

tive advantage by making good-faith legal errors any more

than by making good-faith factual errors. This is ex

pressly so if the debt collector has implemented “proce

dures reasonably adapted to avoid” them. By reading

§1692k(c) to exclude good-faith mistakes of law, the Court

fails to align its interpretation with the statutory

objectives.

The Court urges, nevertheless, that there are policy

concerns on the other side. The Court frets about debt

collectors who “press the boundaries of the Act’s prohibi

tions” and about a potential “ ‘race to the bottom.’ ” Ante,

at 27–28 (quoting Brief for Petitioner 32). For instance, in

its view, interpreting §1692k(c) to encompass legal mis

takes might mean that “nonlawyer debt collectors could

obtain blanket immunity for mistaken interpretations of

the FDCPA simply by seeking the advice of legal counsel.”

Ante, at 27. It must be remembered, however, that

§1692k(c) may only be invoked where the debt collector’s

error is “bona fide” and where “reasonable procedures”

have been adopted to avoid errors. There is no valid or

persuasive reason to assume that Congress would want to

10 JERMAN v. CARLISLE, MCNELLIE, RINI,

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KENNEDY, J., dissenting

impose liability on a debt collector who relies in good faith

on the reasonable advice of counsel. If anything, we

should expect Congress to think that such behavior should

be encouraged, not discouraged.

The Court also suggests that reading §1692k(c) to in

clude legal errors would encourage litigation over a num

ber of issues: what subjective intent is necessary for liabil

ity; what procedures are necessary to avoid legal mistakes;

what standard applies to procedures adopted by attorney

debt collectors as compared to non-attorney debt collec

tors. Yet these questions are no different from ones al

ready raised by the statute. Whether the debt collector is

an attorney or not, his or her subjective intent must be

assessed before liability can be determined. Procedures to

avoid mistakes—whether legal or otherwise—must be

“reasonable,” which is always a context-specific inquiry.

The Court provides no reason to think that legal errors

raise concerns that differ in these respects from those

raised by non-legal errors.

2

There is a further and most serious reason to interpret

§1692k(c) to include good-faith legal mistakes. In Heintz

v. Jenkins, 514 U. S. 291 (1995), the Court held that at

torneys engaged in debt-collection litigation may be “debt

collectors” for purposes of the FDCPA. In reaching this

conclusion the Court confronted the allegation that its

interpretation would produce the anomalous result that

attorneys could be liable for bringing legal claims against

debtors if those claims ultimately proved unsuccessful.

Id., at 295. The Court rejected this argument. In doing so

it said that §1692k(c) provides debt collectors with a de

fense for their bona fide errors. Id., at 295.

Today the Court relies on Heintz to allay concerns about

the practical implications of its decision. Ante, at 25. Yet

the Court reads §1692k(c) to exclude mistakes of law,

Cite as: 559 U. S. ____ (2010) 11

KENNEDY, J., dissenting

thereby producing the very result that Heintz said would

not come about. Attorneys may now be held liable for

taking reasonable legal positions in good faith if those

positions are ultimately rejected.

Attorneys are duty-bound to represent their clients with

diligence, creativity, and painstaking care, all within the

confines of the law. When statutory provisions have not

yet been interpreted in a definitive way, principled advo

cacy is to be prized, not punished. Surely this includes

offering interpretations of a statute that are permissible,

even if not yet settled. The FDCPA is a complex statute,

and its provisions are subject to different interpretations.

See, e.g., ante, at 5, n. 4 (identifying splits of authority on

two different FDCPA issues); Brief for National Associa

tion of Retail Collection Attorneys as Amicus Curiae 5–6

(identifying another split); see also ante, at 12. Attorneys

will often find themselves confronted with a statutory

provision that is susceptible to different but still reason

able interpretations.

An attorney’s obligation in the face of uncertainty is to

give the client his or her best professional assessment of

the law’s mandate. Under the Court’s interpretation of

the FDCPA, however, even that might leave the attorney

vulnerable to suit. For if the attorney proceeds based on

an interpretation later rejected by the courts, today’s

decision deems that to be actionable as an intentional

“violation,” with personal financial liability soon to follow.

Indeed, even where a particular practice is compelled by

existing precedent, the attorney may be sued if that prece

dent is later overturned.

These adverse consequences are evident in the instant

case. When respondents filed a foreclosure complaint

against Jerman on behalf of their client, they had no

reason to doubt that the debt was valid. They had every

reason, furthermore, to believe that they were on solid

legal ground in asking her to dispute the amount owed in

12 JERMAN v. CARLISLE, MCNELLIE, RINI,

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KENNEDY, J., dissenting

writing. See, e.g., Graziano v. Harrison, 950 F. 2d 107,

112 (CA3 1991) (written objection is necessary for coherent

statutory scheme and protects the debtor by “creat[ing] a

lasting record of the fact that the debt has been disputed”).

When Jerman disputed the debt, respondents verified that

the debt had been satisfied and withdrew the lawsuit.

Respondents acted reasonably at every step, and yet may

still find themselves liable for a harmless violation.

After today’s ruling, attorneys can be punished for

advocacy reasonably deemed to be in compliance with the

law or even required by it. This distorts the legal process.

Henceforth, creditors’ attorneys of the highest ethical

standing are encouraged to adopt a debtor-friendly inter

pretation of every question, lest the attorneys themselves

incur personal financial risk. It is most disturbing that

this Court now adopts a statutory interpretation that will

interject an attorney’s personal financial interests into the

professional and ethical dynamics of the attorney-client

relationship. These consequences demonstrate how un

tenable the Court’s statutory interpretation is and counsel

in favor of a different reading. See Milavetz, Gallop &

Milavetz, P. A. v. United States, 559 U. S. ___, ___, n. 5

(2010) (slip op., at 16, n. 5) (rejecting a reading of federal

law that “would seriously undermine the attorney-client

relationship”).

The Court’s response is that this possibility is nothing

new, because attorneys are already duty-bound to comply

with the law and with standards of professional conduct.

Attorneys face sanctions for harassing behavior and frivo

lous litigation, and in some cases misconduct may give rise

to personal liability. Ante, at 25–26.

This response only underscores the problem with the

Court’s approach. By reading §1692k(c) to exclude mis

takes of law, the Court ensures that attorneys will face

liability even when they have done nothing wrong—

indeed, even when they have acted in accordance with

Cite as: 559 U. S. ____ (2010) 13

KENNEDY, J., dissenting

their professional responsibilities. Here respondents’ law

firm did not harass Jerman; it did not file a frivolous suit

against her; it did not intentionally mislead her; it caused

her no damages or injury. The firm acted upon a reason

able legal interpretation that the District Court later

thought to be mistaken. The District Court’s position, as

all concede, was in conflict with other published, reasoned

opinions. Ante, at 4, n. 2. (And in the instant case, nei

ther the Court of Appeals nor this Court has decided the

issue. See ante, at 5, n. 3.) If the law firm can be pun

ished for making a good-faith legal error, then to be safe

an attorney must always stick to the most debtor-friendly

interpretation of the statute, lest automatic liability follow

if some later decision adopts a different rule. This dy

namic creates serious concerns, not only for the attorney

client relationship but also for First Amendment rights.

Cf. Legal Services Corporation v. Velazquez, 531 U. S. 533,

545 (2001) (law restricting arguments available to attor

neys “prohibits speech and expression upon which courts

must depend for the proper exercise of the judicial

power”). We need not decide that these concerns rise to

the level of an independent constitutional violation, see

ante, at 29, n. 21, to recognize that they counsel against a

problematic interpretation of the statute. See Edward J.

DeBartolo Corp. v. Florida Gulf Coast Building & Constr.

Trades Council, 485 U. S. 568, 575 (1988) (“[W]here an

otherwise acceptable construction of a statute would raise

serious constitutional problems, the Court will construe

the statute to avoid such problems unless such construc

tion is plainly contrary to the intent of Congress”).

JUSTICE BREYER—although not the Court—argues that

an attorney faced with legal uncertainty only needs to

turn to the Federal Trade Commission (FTC) for an advi

sory opinion. An attorney’s actions in conformity with the

opinion will be shielded from liability. Ante, at 1 (concur

ring opinion) (citing 15 U. S. C. §1692k(e)). This argument

14 JERMAN v. CARLISLE, MCNELLIE, RINI,

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KENNEDY, J., dissenting

misconceives the practical realities of litigation. Filings

and motions are made under pressing time constraints;

arguments must be offered quickly in reply; and strategic

decisions must be taken in the face of incomplete informa

tion. Lawyers in practice would not consider this alterna

tive at all realistic, particularly where the defense is

needed most.

And even were there time to generate a formal request

to the FTC and wait an average of three or four months for

a response (assuming the FTC responds at all), the argu

ment assumes that an ambiguity in the statute is obvious,

not latent, that the problem is at once apparent, and that

a conscious decision to invoke FTC procedures can be

made. But the problem in many instances is that inter

pretive alternatives are not at once apparent. All this may

explain why, in the past decade, the FTC has issued only

four opinions in response to just seven requests. See Tr. of

Oral Arg. 27–28, 30. The FTC advisory process does not

remedy the difficulties that the Court’s opinion will cause.

Even if an FTC opinion is obtained, moreover, the ethi

cal dilemma of counsel is not resolved. If the FTC adopts

a position unfavorable to the client, the attorney may still

believe the FTC is mistaken. Yet under today’s decision,

the attorney who in good faith continues to assert a rea

sonable position to the contrary does so at risk of personal

liability. This alters the ethical balance central to the

adversary system; and it is, again, a reason for the Court

to adopt a different, but still reasonable, interpretation to

avoid systemic disruption.

II

The Court does not assert that its interpretation is

clearly commanded by the text. Instead, its decision relies

on an amalgam of arguments that, taken together, are

said to establish the superiority of its preferred reading.

This does not withstand scrutiny.

Cite as: 559 U. S. ____ (2010) 15

KENNEDY, J., dissenting

First, the Court relies on the maxim that “ ‘ignorance of

the law will not excuse any person, either civilly or crimi

nally.’ ” Ante, at 6 (quoting Barlow v. United States, 7 Pet.

404, 411 (1833)). There is no doubt that this principle “is

deeply rooted in the American legal system.” Cheek v.

United States, 498 U. S. 192, 199 (1991). Yet it is unhelp

ful to the Court’s position. The maxim the Court cites is

based on the premise “that the law is definite and know

able,” so that all must be deemed to know its mandate.

Ibid. See also O. Holmes, The Common Law 48 (1881)

(“[T]o admit the excuse [of ignorance] at all would be to

encourage ignorance where the law-maker has determined

to make men know and obey”). In other words, citizens

cannot avoid compliance with the law simply by demon

strating a failure to learn it.

The most straightforward application of this principle is

to statutory provisions that delineate a category of prohib

ited conduct. These statutes will not be read to excuse

legal mistakes absent some indication that the legislature

meant to do so. See, e.g., Armour Packing Co. v. United

States, 209 U. S. 56, 70, 85–86 (1908) (rejecting the defen

dant’s attempt to read a mistake-of-law defense into a

criminal statute forbidding shippers to “obtain or dispose

of property at less than the regular rate established”);

ante, at 7–8 (discussing a federal statute imposing liability

for “intentional discrimination”).

In the present case, however, the Court is not asked

whether a mistake of law should excuse respondents from

a general prohibition that would otherwise cover their

conduct. Rather, the issue is the scope of an express ex

ception to a general prohibition. There is good reason to

think the distinction matters. It is one thing to presume

that Congress does not intend to create an exception to a

general rule through silence; it is quite another to pre

sume that an explicit statutory exception should be con

fined despite the existence of other sensible interpreta

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KENNEDY, J., dissenting

tions. Cf. Kosak v. United States, 465 U. S. 848, 853, n. 9

(1984) (although the Federal Tort Claims Act waives

sovereign immunity, “the proper objective of a court at

tempting to construe [an exception to the Act] is to identify

those circumstances which are within the words and

reason of the exception—no less and no more” (internal

quotation marks omitted)). This is all the more true

where the other possible interpretations are more consis

tent with the purposes of the regulatory scheme. By its

terms, §1692k(c) encompasses—without limitation—all

violations that are “not intentional and resul[t] from a

bona fide error.” The Court provides no reason to read

this language narrowly.

The Court responds that “our precedents have made

clear for more than 175 years” that the presumption

against mistake-of-law defenses applies even to explicit

statutory exceptions. Ante, 6–7, n. 5. By this the Court

means that one case applied the presumption to an excep

tion more than 175 years ago. In Barlow, the Court de

clined to excuse an alleged mistake of law despite a statu

tory provision that excepted “false denomination[s] . . .

[that] happened by mistake or accident, and not from any

intention to defraud the revenue.” 7 Pet., at 406. In

construing this language, the Barlow Court noted that it

demonstrated congressional intent to exclude mistakes of

law:

“The very association of mistake and accident, in this

[connection], furnishes a strong ground to presume

that the legislature had the same classes of cases in

view . . . . Mistakes in the construction of the law,

seem as little intended to be excepted by the proviso,

as accidents in the construction of the law.” Id., at

411–412.

Unlike the provision at issue in Barlow, §1692k(c) gives no

indication that its broad reference to “bona fide error[s]”

Cite as: 559 U. S. ____ (2010) 17

KENNEDY, J., dissenting

was meant to exclude legal mistakes.

Even if statutory exceptions should normally be con

strued to exclude mistakes of law, moreover, that guide

line would only apply absent intent to depart from the

general rule. There is no doubt that Congress may create

a mistake-of-law defense; the question is whether it has

done so here. See Ratzlaf, 510 U. S, at 149. As explained

above, see Part I–A, supra, Congress has made its choice

plain by using the word “violation” in §1692k(c) to indicate

that mistakes of law are to be included.

Second, the Court attempts to draw a contrast between

§1692k(c) and the administrative penalties in the Federal

Trade Commission Act (FTC Act), 38 Stat. 717, 15 U. S. C.

§41 et seq. Under the FTC Act, a debt collector may face

civil penalties of up to $16,000 per day for acting with

“actual knowledge or knowledge fairly implied on the basis

of objective circumstances that [an] act is” prohibited

under the FDCPA. §§45(m)(1)(A), (C); 74 Fed. Reg. 858

(2009) (amending 16 CFR §1.98(d) (2009)). The Court

reasons that the FTC provision is meant to provide rela

tively harsh penalties for intentional violations. By con

trast, the argument continues, the penalties in the FDCPA

itself must cover—and hence §1692k(c) must not excuse—

unintentional violations. Ante, at 8–9.

The argument rests on a mistaken premise—namely,

that §1692k(c) must immunize all legal errors or none.

This misreads the statute. As the text states, it applies

only to “bona fide” errors committed despite “the mainte

nance of procedures reasonably adapted to avoid” these

mistakes. So under a sensible reading of the statute,

(1) intentional violations are punishable under the height

ened penalties of the FTC Act; (2) unintentional violations

are generally subject to punishment under the FDCPA;

and (3) a defendant may escape liability altogether by

proving that a violation was based on a bona fide error

and that reasonable error-prevention procedures were in

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place. There is nothing incongruous in this scheme.

Indeed, for the reasons described in Part I, supra, it is far

less peculiar than the Court’s reading, which would sub

ject attorneys to liability for good-faith legal advocacy,

even advocacy based on an accurate assessment of then

existing case law.

Third, in construing §1692k(c) to exclude legal errors,

the Court points to the requirement that a debt collector

maintain “procedures reasonably adapted to avoid any

such error.” The Court asserts that this phrase most

naturally evokes procedures to avoid clerical or factual

mistakes. There is nothing natural in reading this phrase

contrary to its plain terms, which do not distinguish be

tween different categories of mistakes. Nor is there any

thing unusual about procedures adopted to avoid legal

mistakes. The present case is again instructive. Accord

ing to the District Court, respondents designated a lead

FDCPA compliance attorney, who regularly attended

conferences and seminars; subscribed to relevant periodi

cals; distributed leading FDCPA cases to all attorneys;

trained new attorneys on their statutory obligations; and

held regular firm-wide meetings on FDCPA issues. See

538 F. 3d 469, 477 (CA6 2008). These procedures are not

only “reasonably adapted to avoid [legal] error[s],” but also

accord with the FDCPA’s purposes.

The Court argues, nonetheless, that the statute contem

plates only clerical or factual errors, for these are the type

of errors that can mostly naturally be addressed through

“ ‘a series of steps followed in a regular orderly definite

way.’ ” Ante, at 12 (quoting Webster’s Third New Interna

tional Dictionary 1807 (1976)). As made clear by the steps

that respondents have taken to ensure FDCPA compli

ance, this is simply not true. The Court also speculates

that procedures to avoid clerical or factual errors will be

easier to implement than procedures to avoid legal errors.

Even if this were not pure conjecture, it has nothing to do

Cite as: 559 U. S. ____ (2010) 19

KENNEDY, J., dissenting

with what the statute requires. The statute does not talk

about procedures that eliminate all—or even most—

errors. It merely requires procedures “reasonably adapted

to avoid any such error.” The statute adopts the sensible

approach of requiring reasonable safeguards if liability is

to be avoided. This approach, not the Court’s interpreta

tion, reflects the reality of debt-collection practices.

Fourth, the Court argues that construing §1692k(c) to

encompass a mistake-of-law defense “is at odds with” the

role contemplated for the FTC. Ante, at 13. This is so, it

contends, because the FTC is authorized to issue advisory

opinions, and the statute shields from liability “any act

done or omitted in good faith in conformity” with such

opinions. §1692k(e). But why, asks the Court, would a

debt collector seek an opinion from the FTC if immunity

under §1692k(c) could be obtained simply by relying in

good faith on advice from private counsel? Going further,

the Court suggests that debt collectors might “have an

affirmative incentive not to seek an advisory opinion to

resolve ambiguity in the law, which would then prevent

them from claiming good-faith immunity for violations.”

Ante, at 13.

There is little substance to this line of reasoning. As the

Court itself acknowledges, debt collectors would have an

incentive to invoke the FTC safe harbor even if §1692k(c)

is construed to include a mistake-of-law defense, because

the safe harbor provides a “more categorical immunity.”

Ante, at 13, n. 8. Additionally, if a debt collector avoids

seeking an advisory opinion from the FTC out of concern

that the answer will be unfavorable, that seems quite at

odds with saying that his or her ignorance is “bona fide.”

It should be noted further that the Court’s concern

about encouraging ignorance could apply just as well to

§45(m)(1)(A). That provision subjects a debt collector to

harsh penalties for violating an FTC rule “with actual

knowledge or knowledge fairly implied on the basis of

20 JERMAN v. CARLISLE, MCNELLIE, RINI,

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KENNEDY, J., dissenting

objective circumstances that such act is unfair or deceptive

and is prohibited by such rule.” No one contends that this

will encourage debt collectors to avoid learning the FTC’s

rules. Yet there is no doubt that §45(m)(1)(A) permits a

mistake-of-law defense.

All this assumes, of course, that obtaining an FTC advi

sory opinion will be a reasonably practical possibility. For

the reasons stated above, see Part I–B–2, supra, this is to

be doubted. Even the Court recognizes the limited role

that the FTC has played. Ante, at 25 (“[E]vidence of pre

sent administrative practice makes us reluctant to place

significant weight on §1692k(e) as a practical remedy”).

Fifth, the Court asserts that “[a]ny remaining doubt”

about its preferred interpretation is dispelled by the

FDCPA’s statutory history. The Court points to the fact

that §1692k(c) mirrors a bona fide error defense provision

in the earlier enacted Truth in Lending Act (TILA), argu

ing that Congress sought to incorporate into the FDCPA

the view of the Courts of Appeals that the TILA defense

applied only to clerical errors. Ante, at 14–15. As JUSTICE

SCALIA points out, the Court’s claims of judicial uniformity

are overstated. See ante, at 2–3 (opinion concurring in

part and concurring in judgment). They rest on three

Court of Appeals decisions, which are contradicted by

several District Court opinions and a State Supreme Court

opinion—hardly a consistent legal backdrop against which

to divine legislative intent. The Court also ignores the fact

that those three Courts of Appeals had construed the

TILA provision to apply only to clerical errors. See Ives v.

W. T. Grant Co., 522 F. 2d 749, 758 (CA2 1975); Haynes v.

Logan Furniture Mart, Inc., 503 F. 2d 1161, 1167 (CA7

1974); Palmer v. Wilson, 502 F. 2d 860, 861 (CA9 1974).

The Court therefore cannot explain why it reads §1692k(c)

more broadly to encompass factual mistakes as well.

It is of even greater significance that in 1980 Congress

amended the TILA’s bona fide error exception explicitly to

Cite as: 559 U. S. ____ (2010) 21

KENNEDY, J., dissenting

exclude “an error of legal judgment with respect to a per

son’s obligations under [the TILA].” See Truth in Lending

Simplification and Reform Act, §615 (c), 94 Stat. 181. This

amendment would have been unnecessary if Congress had

understood the pre-1980 language to exclude legal errors.

The natural inference is that the pre-amendment TILA

language—the same language later incorporated nearly

verbatim into §1692k(c)—was understood to cover those

errors.

The Court’s responses to this point are perplexing. The

Court first says that the 1980 amendment did not “obvi

ous[ly]” change the scope of the TILA’s bona fide error

defense, given the “uniform interpretation” that the de

fense had been given in the Courts of Appeals. Ante, at

17. The Court thus prefers to make an entire statutory

amendment surplusage rather than abandon its dubious

assumption that Congress meant to ratify a nascent Court

of Appeals consensus. Cf. Corley v. United States, 556

U. S. ___, ___ (2009) (slip op., at 9) (“[O]ne of the most

basic interpretive canons [is] that [a] statute should be

construed so that effect is given to all its provisions, so

that no part will be inoperative or superfluous, void or

insignificant” (internal quotation marks omitted; second

alteration in original)). (Without any evidence, the Court

speculates that perhaps the amendment was intended to

codify existing judicial interpretations that excluded legal

errors. Ante, at 17–18. If those judicial interpretation

were truly as uniform as the Court suggests—and

the presumption against mistake-of-law defenses as

ironclad—there would have been no need for such a

recodification.)

The Court is hesitant as well to give the 1980 amend

ment weight because Congress “has not expressly included

mistakes of law in any of the numerous bona fide error

defenses, worded in pertinent part identically to §1692k(c),

elsewhere in the U. S. Code.” Ante, at 18 (emphasis in

22 JERMAN v. CARLISLE, MCNELLIE, RINI,

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original). In other words, the Court refuses to read

§1692k(c) to cover mistakes of law because other bona fide

error statutes do not expressly refer to such mistakes. But

the reverse should be true: If other bona fide error provi

sions included mistake-of-law language but §1692k(c) did

not, we might think that the omission in §1692k(c) sig

naled Congress’s intent to exclude mistakes of law. The

absence of mistake-of-law language in §1692k(c) is conse

quently less noteworthy because other statutes also omit

such language.

The Court emphasizes that some bona fide error de

fenses, like the one in the current version of the TILA,

expressly exclude legal errors from their scope. Ante, at

18 (citing 12 U. S. C. §4010(c)(2)). Yet this also can prove

the opposite of what the Court says it does: If a bona fide

error defense were generally assumed not to include legal

mistakes (as the Court argues), there would be no need to

expressly exclude them. It is only if the defense would

otherwise include such errors that exclusionary language

becomes necessary. By writing explicit exclusionary lan

guage into the TILA (and some other federal provisions),

Congress has indicated that those provisions would other

wise cover good-faith legal errors.

* * *

For these reasons, §1692k(c) is best read to encompass

mistakes of law. I would affirm the judgment of the Court

of Appeals.