Amicus Curiae Brief — Sheriff v. Gillie, 136 S. Ct. 614 (2015) (No. 15-338)

FILED

MAR 2 ~ 2016

| OFFICE OF THE CLERK

No. 15-338

In the Supreme Court of the United States

MARK J. SHERIFF, ET AL., PETITIONERS

Vv.

PAMELA GILLIE, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CUR’ \E SUPPORTING RESPONDENTS

DONALD B. VERRILLI, JR.

MARY MCLEOD Solicitor General

General Counsel Counsel of Record

TO-QUYEN TRUONG MALCOLM L. STEWART

Deputy General Counsel Deputy Solicitor General

JOHN R. COLEMAN SARAH E. HARRINGTON

Assistant General Connsel Assistant to the Solicitor

NANDAN M. JOSHI General

LAWRENCE DEMILLE-WAGMAN Department of Justice

Counsel Washington, D.C. 20530-0001

Consumer Financial SupremeCtBriefs@ usdoj.gov

Protection Bureau 202) 514-2217

Washington, D.C. 20552

QUESTIONS PRESENTED

1. Whether “special counsel” appointed by the At-

torney General of Ohio to collect debts owed to the

State are exempted from the definition of “debt collec-

tor” under the Fair Debt Collection Practices Act

(FDCPA), 15 U.S.C. 1692 et seqg., because they are

“officer[s}” of the State.

2. Whether special counsel’s use of the Ohio Attor-

ney General’s letterhead on their communications to

debtors violated the FDCPA.

()

TABLE OF CONTENTS

Page

TA l

EEE 2

i sinieerrenereipnetenmstnmiennemmansenenmnemanen 8

C—O ET 11

I. Ohio's debt-collection special counsel are “debt

collector{s}” subject to the FDCPA’s requirements

a 12

A. Ohio’s debt-collection special counsel are

not state “officer{s]” within the meaning of

areas certiatieanrcererseems 12

B. The structure and purposes of the FDCPA

confirm that Ohio’s special counsel are not

state “officers” within the meaning of Section

I 20

C. Application of the FDCPA to Ohio’s debt-

collection special counsel does not intrude on

Ohio’s sovereign interest .................c0cceesseeseesees 23

II. A reasonable jury could conclude that Ohio’s

debt-collection special counsel violated the FDCPA

by using the letterhead of the Office of the Attorney

A. Whether a debt-collection practice is false,

deceptive, or misleading should be judged

from the perspective of an unsophisticated

B. Because a reasonable jury could find that

Ohio’s debt-collection special counsel violated

the FDCPA, the court of appeals correctly

reversed the district court’s award of summary

judgment for petitioners ....................ccccccecsseeeeeeees 30

EE 35

Appendix — Statutory provisions. ...................ccccsssssesseseeeeeees la

(IIT)

IV

TABLE OF AUTHORITIES

Cases: Page

Baker v. G.C. Servs. Corp., 677 F.2d 775

TC 28

Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993)......... 29

Donohoe v. Quick Collect, Inc., 592 F.3d 1027

Xk ELC ener 27

Eades v. Kennedy, PC Law Offices, 799 F.3d 161

SETI PIIII, HITT niiccrnensinsusiinsiinadatasiatintiitidigmesinnediiatamieneeneess 27

Exposition Press, Inc. v. FTC, 295 F.2d 869

(2d. Cir. 1961), cert. denied, 370 U.S. 917 (1962)........ 28

Fouts v. Express Recovery Servs., Inc. 602 Fed.

Rage, GSFC CR. BRS cxvesscecerszvecesessnszesscsenscesssssesee 27

FTC v. Standard Educ. Soc’y, 302 U.S. 112 (1937)....... 28

Fuldauer v. City of Cleveland, 290 N.E.2d 546

UE TITTTITIEDssnssieinairittehieeniinettnnieiereiaiaateieciaeiamrmmmass 16

Gammon v. G.C. Servs. Ltd. P’ship, 27 F.3d 1254

EE: Siti wsisncntniuntcsnmncctessndtainiseiniesmsammnnnases 27, 29

Goswami v. American Collections Enter., Inc.,

377 F.3d 488 (5th Cir. 2004), cert. denied,

8 Ee See 27

Gregory v. Ashcroft, 501 U.S. 452 (1991)................08. 8, 24

Hall v. Wisconsin, 103 (13 Otto) U.S. 5 (1880) ....... 13, 17

Hana Fin., Inc. v. Hana Bank, 135 S. Ct. 907

STITT scisipniiiicaiiinieaiaiiieeiiaiat inca thiiaitaiieraimaremaiats 30, 31

Jensen v. Pressler & Pressler, 791 F.3d 413

GERI TT ccnciicitinicnesinsteninienasinesuiiaeisiiiaiemnemenens 27, 28

Jeter v. Credit Bureau, Inc. 760 F.2d 1168

eee eee 28

McKinney v. Cadleway Props., Inc., 548 F.3d 496

ye aa hcsetisistininerenicnenadmssenigingpsieemeannntintinds 29, 30

Cases—Continued: Page

McMahon v. LVNV Funding, LLC, 744 F.3d 1010

SEE EL TET ened ncuretipinieditnetneenibniianennacaiianeninaninenbeimananen 30

Merrill Lynch, Pierce, Fenner & Smith Inc. v.

Ef | 22

Metcalf & Eddy v. Mitchell, 269 U.S. 514

ITI ctreteeenpaiepensamuaieemnansnuensansinitaitedddpiniinetbndmmanebines 13, 15, 17

Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d

Eee 27

Neder v. United States, 527 U.S. 1 (1999)........0.......0.... 13

Peters v. General Serv. Bureau, Inc., 277 F.3d

Se ee ES rererteenrncrtrencevemsecenneninmmnnenesnemenenns 27

Pollard v. Law Office of Mandy L. Spaulding,

So ee 27, 28

Robers v. United States, 134 S. Ct. 1854 (2014)............ 22

Russell v. Absolute Collection Servs., Inc.,

763 F.3d 385 (4th Cir. 2014)................cccccccsssceeseccesncees 27

Scofield v. Strain, 51 N.E. 1012 (Ohio 1943)................. 17

Slough, In re, 70 F.T.C. 1318 (1966), enforced,

Slough v. FTC, 369 F.2d 870 (5th Cir.), cert.

denied, 393 U.S. 980 (1968)...............ccccccccssseseresesseees 28

State v. Jennings, 49 N.E. 404 (Ohio 1898)................... 14

State v. Wilson, 29 Ohio St. 347 (1876).................... 14, 16

State ex rel. Landis v. Board of Comm'rs of Butler

Cty., 115 N.E. 919 (Ohio 1917)................cccccccessseees 13, 16

State ex rel. Newman v. Skinner, 191 N.E. 127

RE TEESE een ele tr Fee een ee 13

United States v. Germaine, 99 U.S. (9 Otto) 508

TI siirinritierteenerasianisinainseaanian daniel temraiaatiiiatialitinaeaie 14, 15, 19, 20

United States v. Hartwell, 73 U.S. (6 Wall.) 385

isin aaanaartiaaatarataaadilirnnaiasiimititaiae 13, 15, 16, 17

United States v. Maurice, 26 F Cas. 1211

ERASERS care 14, 16

Case—Continued: Page

Wilson v. Quadramed Corp. 225 F.3d 350

PETG: TTI icierticsinsnasiocinnisiciiainiianbiiciieaiinniaiaieeanitininimmineeneti 29, 31

Statutes:

Act of Mar. 3, 1873, ch. 234, § 35, 17 Stat. 576................... 19

Age Discrimination in Employment Act of 1967,

ee ETI cicaiicesiiiinteatiniaiinanieistuensiitnansiasanniapanenanitnaiatl 24

i (ass Ce KG 6, 13, 17

Fair Debt Collection Practices Act, 15 U.S.C. 1692

OB GRD eccncencsensenssntsessessrensmeensemesmnsneseeemememneemennete 1

BE I iciccricnssinninihinaiincnsiceminiainiiaiimaniiiiaiamaiall 2, 28

ee I iciicnirmntiitnianinediainniinitnasinniniinestits 2, 28

ITIL TIT osc iiicensentinesncatntipntinniibiuntisianinitecesianiteilinidi 2

SE TITInT IIIT siseriinsisitissnieiendlinpnseriiepiriereieriiaieanthiiaiitiilla 2

eT niiit cncns icinericeinininainiabeniesiitinnmiiiniiiis 2,12

Be I nciisincnsininaeniseibiaiinamanicinions 2, 9, 21, 22

ls eT cictnsniniieininnentinionicummusicbinsiisiias passim

a MT licnesthishssciniiinsinnininiisinensnatiiainiii 8, 5, 10, 26, 33

— § En 8, 5, 10, 27, 32

TTT isincocsnctiateinieensintnaiabeieietibaamnibntianaiiads 31

EE aD passim

De TID isn cscrincatnsecentpintsssnitnimnesiteediiahinteniaeas 32

Cd iiciinneriiiieedenaidalincdsineiindaainbinniidil 32

Bs I ictcrcininsintinntnpesseistetetsnseldaiencnabitibaiiidiiteciiniaiiiai 3

ERE TE ee Cone a 1

ee a 1

Federal Trade Commission Act, 15 U.S.C. 41

OB GID, ccrenntsnntinttenasssrnnmmmemmemnens 10

I anise tain iaitatainimiicnaiamsidatias 27

Ie is I iia cacti biiathlati ainialindreicaniabiials 1

8 WI, See cncencscesereccesnsessensarsnssmnnscserememsemessnesns 1

Vil

Statutes—Continued: Page

Ohio Rev. Code Ann. (LexisNexis 2014):

EAR ae eR 3, 4, 7, 16

| EEE ree eT ae ee nD 3

Miscellaneous:

53 Fed. Reg. 50,097 (Dec. 13, 1988) ..............ccccccesseeseeeeeenees 20

Letter from Thomas E. Krane, Attorney, Division of

Financial Practices, FTC, to Richard T. deMayo,

ionic ieicaiaanteercsiasiattcinleiaiaiaiiatainbintasines 20

Floyd R. Mechem, A Treatise on the Law of Public

Offices and Officers (1890)..............c.ecseseeerees 14, 15, 21, 25

Opinion of the Justices, 3 Green|. (Me.) 481 (1822)..... 14, 20

S. Rep. No. 382, 95th Cong., 1st Sess. (1977).......... 11, 21, 25

In the Supreme Court of the Anited States

No. 15-338

MARK J. SHERIFF, ET AL., PETITIONERS

Vv.

PAMELA GILLIE, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

The Fair Debt Collection Practices Act (FDCPA or

Act), 15 U.S.C. 1692 et seq., authorizes the Consumer

Financial Protection Bureau (CFPB) to “prescribe

rules with respect to the collection of debts by debt

collectors, as defined in” the FDCPA. 15 U.S.C.

1692l(d). The CFPB and other federal regulatory

agencies are responsible for enforcing the Act through

administrative proceedings and civil litigation. 15

U.S.C. 1692l(a)-(c). In addition, private counsel who

assist in collecting debts owed to the United States

are subject to the Act’s requirements. See 31 U.S.C.

3718(b)(1)(A) and (6). The United States therefore

has a substantial interest in the Court’s resolution of

the questions presented.

(1)

2

STATEMENT

1. a. Congress enacted the FDCPA in 1977 based

on “abundant evidence of the use of abusive, decep-

tive, and unfair debt collection practices by many debt

collectors.” 15 U.S.C. 1692(a). Congress concluded

that “[e]xisting laws * * * are inadequate to protect

consumers,” and that “the effective collection of

debts” does not require “misrepresentation or other

abusive debt collection practices.” 15 U.S.C. 1692(b)

and (c). The Act subjects debt collectors to various

procedural and substantive requirements that are

designed to “eliminate abusive debt collection practic-

es by debt collectors” while “insur[ing] that those debt

collectors who refrain from using abusive debt collec-

tion practices are not competitively disadvantaged.”

15 U.S.C. 1692(e).

The FDCPA applies to any “debt collector,” a term

that the Act generally defines as “any person who

uses any instrumentality of interstate commerce or

the mails in any business the principal purpose of

which is the collection of any debts, or who regularly

collects or attempts to collect, directly or indirectly,

debts owed or due or asserted to be owed or due an-

other.” 15 U.S.C. 1692a(6). The Act’s definition of

“debt collector” specifically excludes, inter alia, “any

officer or employee of a creditor while, in the name of

the creditor, collecting debts for such creditor,” 15

U.S.C. 1692a(6)(A), and “any officer or employee of

the United States or any State to the extent that col-

lecting or attempting to collect any debt is in the per-

formance of his official duties,” 15 U.S.C. 1692a(6)(C).

The FDCPA prohibits debt collectors from “us[ing]

any false, deceptive, or misleading representation or

means in connection with the collection of any debt.”

3

15 U.S.C. 1692e. In addition to that general prohibi-

tion, Congress has identified 16 specific practices that

violate Section 1692e. As relevant here, the prohibit-

ed practices include the “use or distribution of any

written communication which simulates or is falsely

represented to be a document authorized, issued, or

approved by any court, official, or agency of the Unit-

ed States or any State, or which creates a false im-

pression as to its source, authorization, or approval,”

15 U.S.C. 1692e(9), and the “use of any business, com-

pany, or organization name other than the true name

of the debt collector’s business, company, or organiza-

tion,” 15 U.S.C. 1692e(14). The Act authorizes civil

actions against “any debt collector who fails to comply

with any provision of [the FDCPA] with respect to any

person.” 15 U.S.C. 1692k.

b. The Attorney General of Ohio is charged by

state law with collecting debts owed to the State. Ohio

Rev. Code Ann. § 131.02 (LexisNexis 2014). Ohio law

authorizes the Attorney General to “appoint special

counsel to represent the state in connection with all

claims of whatsoever nature which are certified to the

attorney general for collection under any law or which

the attorney general is authorized to collect.” Jd. at

§ 109.08. Section 109.08 further provides that “[sJuch

special counsel shall be paid for their services from

funds collected by them in an amount approved by the

attorney general.” Jbid.

The statute directs the Ohio Attorney General to

provide special counsel appointed to collect tax debts

“the official letterhead stationery of the attorn»y

general.” Ohio Rev. Code Ann. § 109.08 (LexisNexis

2014). It also requires such counsel to “use the letter-

head stationery, but only in connection with the collec-

4

tion of such claims arising out of those taxes.” J/bid.

Individuals hired by Ohio as special counsel have been

orally directed by the Attorney General to use the

letterhead of the Office of the Attorney General in

connection with all collections. Pet. App. 24a.

To choose the individuals who will assist Ohio offi-

cials in collecting debts owed to the State, the Attor-

ney General issues a “Request for Qualifications” for

collections special counsel. Pet. App. 23a. Applicants

selected as special counsel enter into a “Retention

Agreement” with the Attorney General, ibid.; see J.A.

170-205, under which “Special Counsel and its em-

ployees” agree to “conduct any and all legal and col-

lection work assigned by the Attorney General,” and

to “render [such] services * * * as an independent

contractor,” J.A. 171, 173.

2. In 2012, each respondent received a debt-

collection letter signed by an individual who was or

purported to be a special counsel hired by the Ohio

Attorney General. See Pet. App. 25a-26a, 7la-76a.

The letter sent to respondent Pamela Gillie includ-

ed letterhead from the Ohio Attorney General’s office.

Pet. App. 73a. The letterhead contained the Attorney

General’s name and title, as well as the official state

seal. [bid. The letter was signed by “Eric A. Jones,

Outside Counsel for the Attorney General’s Office,”

and contained a payment coupon listing the “Law

Office of Eric A. Jones, L.L.C.” as the payee’s ad-

dress. /bid. Gillie’s affidavit stated that she believed

that the letter was from the Attorney General and

that Eric Jones “was someone from the Ohio Attorney

General’s Office,” but that she was confused by the

inclusion of the other names. J.A. 136; Pet. App. 26a.

5

The letter sent to respondent Hazel Meadows in-

cluded a different version of the Ohio Attorney Gen-

eral’s letterhead, containing the state seal with the

designation “Office of the Ohio Attorney General,

Collection Enforcement Section.” Pet. App. 76a. That

letter was signed by Sarah Sheriff of Wiles, Boyle,

Burkholder & Bringardner Co., I.P.A., with the title

of “Special Counsel to the Attorney General of the

State of Ohio.” Jbid. It is undisputed that the special

counsel assigned to the Meadows debt was Mark

Sheriff, not Sarah Sheriff. Jd. at 78a, 97a. Meadows

stated in an affidavit that “it was hard to tell” who had

sent the letter te her because “the top of the letter

* * * showed it was from the Ohio Attorney Gen-

eral’s Office,” but the envelope the letter came in

indicated it was from the law firm. J.A. 139; Pet. App.

26a.

3. In March 2013, respondents filed this action

against petitioners Eric Jones, Sarah Sheriff, Mark

Sheriff, and their respective law firms, alleging that

the use by Ohio’s debt-collection special counsel of

letterheads from the Office of the Attorney General

(OAG) violated various prohibitions in 15 U.S.C.

1692e. Pet. App. 80a. In particular, plaintiffs alleged

that use of the OAG letterhead “created a false im-

pression that the OAG was the source of the letters,”

in violation of 15 U.S.C. 1692e(9), and that the letters

used a name other than the “true name” of the debt

collector’s business or company, in violation of 15

U.S.C. 1692e(14). Pet. App. 80a. The Ohio Attorney

General intervened in support of the attorneys and

law firms. /d. at 27a, 81a.

The district court granted petitioners’ motion for

summary judgment. The court held that Ohio’s spe-

6

cial counsel are “officer[s]” of the State within the

meaning of 15 U.S.C. 1692a(6)(C) and therefore are

excluded from the FDCPA’s definition of “debt collec-

tor.” Pet. App. 27a, 84a-90a. The district court also

concluded that, even if the special counsel were “debt

collector{s]” under the FDCPA, their use of OAG

letterhead did not violate the Act because the letters

“accurately reflect” special counsel’s role “as repre-

sentatives of the State of Ohio appointed by the OAG

to collect debts owed to the State.” Jd. at 27a-28a,

91a-98a. The court explained that “[a]ny initial confu-

sion” caused by the letterhead “is dispelled by special

counsel’s signature in which they identify themselves

and their relationship to the OAG.” Jd. at 98a.

4. The court of appeals reversed. Pet. App. 18a-

54a.

a. The court of appeals held that Ohio’s special

counsel do not qualify for the state-officer exemption

from the FDCPA’s definition of “debt collector” be-

cause they are not “officer[s]” as defined by the Dic-

tionary Act, 1 U.S.C. 1. That statute defines “officer”

to “include[] any person authorized by law to perform

the duties of the office.” Jbid. The court explained

that the Ohio statutes authorizing the appointment of

special counsel to collect debts owed to the State “do

not authorize special counsel to fulfill the duties of any

office.” Pet. App. 31a; see id. at 3la-44a. On the con-

trary, the court reasoned, the relevant provision of

state law “simply establishes the framework under

which the Attorney General, within his or her discre-

tion, may delegate the collection of debts to a third-

party debt collector.” Jd. at 32a.

The court of appeals rejected petitioners’ argument

that special counsel qualify as officers because they

7

exercise a “sovereign power.” Pet. App. 35a-36a. The

court explained that the “authority to collect consum-

er debts is not a sovereign power” because it “can be

exercised by any creditor.” Jd. at 35a. The court

further held that, even if the Dictionary Act did not

apply, Ohio’s special counsel would not qualify as

officers because they are “independent contractors” of

the State. Jd. at 38a.

On the merits of respondents’ FDCPA claims, the

court concluded that the dunning letters would violate

the FDCPA if they contained a representation that

“has the tendency to confuse the least sophisticated

consumer.” Pet. App. 48a. The court noted that the

letters contained misrepresentations “in a technical

sense” because the Attorney General’s name in the

letterhead was “not the true name of any Defendant”

and because “Sarah Sheriff is not a special counsel.”

Ibid. The court concluded, however, that each letter,

when read as a whole, may have “clariflied] the con-

fusing impact of the letterhead for the least sophisti-

cated consumer.” /d. at 50a. Finding that question to

be one “for the jury,” id. at 5la, the court remanded

the case for trial, id. at 54a.

b. Judge Sutton dissented. Pet. App. 55a-70a. Ap-

plying the Dictionary Act’s definition of “officer,”

Judge Sutton would have held that Ohio’s special

counsel are “authorized by law” because Ohio Revised

Code Ann. § 109.08 (LexisNexis 2014) “permits any

action [special counsel] take when they invoke their

attorney-general-given authority.” Pet. App. 57a; id.

at 56a-63a. He also concluded that special counsel

fulfill the “duties of the office” because “fijJn their

hands rests nothing less than a portion of the Attor-

ney General’s sovereign power to ‘enforce’ the civil

8

code the Ohjo legislature has crafted.” Jd. at 57a.

Relying on gory v. Ashcroft, 501 U.S. 452 (1991),

Judge Sutton would have required a clear statement

that Congress intended the FDCPA to cover these

special counsel because doing so would amount to

federal regulation of “core state functions.” Pet. App.

58a.

Judge Sutton also would have held that no reason-

able jury could find the special counsel’s use of OAG

letterhead to be materially misleading. Pet. App. 63a-

70a. In his view, Ohio’s special counsel are agents of

the Attorney General, and “an agent who uses his

principal’s letterhead speaks the truth.” /d. at 64a.

c. The court of appeals denied petitioners’ petition

for rehearing en banc. Pet. App. la. Judge Sutton,

joined by four other judges, filed an opinion dissenting

from the denial of rehearing. /d. at 7a-lla. Judge

Clay filed an opinion concurring in the denial. Jd. at

2a-7a.

SUMMARY OF ARGUMENT

I. Ohio’s debt-collection special counsel are subject

to the FDCPA because they fall within the Act’s basic

definition of “debt collector” and they are not state

“officer[s]” exempt from the Act’s requirements and

prohibitions. Courts have traditionally determined

whether an individual was a government “officer” by

examining the nature, quality, and source of the indi-

vidual’s duties and authority. Ohio special counsel do

not occupy any state “office,” and they do not exercise

any portion of the State’s sovereignty. Rather, their

duties are defined solely by contracts that expressly

declare special counsel to be “independent contrac-

tor[s].” J.A. 173.

9

The FDCPA’s structure and purposes reinforce the

conclusion that Ohio’s debt-collection special counsel

are not state “officer[s}” within the meaning of Section

1692a(6)(C). The FDCPA draws a fundamental dis-

tinction, with respect to both private and governmen-

tal creditors, between a creditor’s use of in-house per-

sonnel to collect debts owed to it and a creditor’s re-

tention of outside contractors to perform the same

basic function. And for both private and governmen-

tal creditors, Congress has used the phrase “officer or

employee” to describe the persons who may collect

debts for the creditor without triggering the Act’s

requirements. See 15 U.S.C. 1692a(6)(A) and (C). If

applied to private creditors under Section 1692a(6)(A),

petitioners’ expansive conception of “officer” would

wholly subvert Congress’s purposes, because it would

exempt the very persons (independent contractors

retained for debt-collection purposes) whom Congress

principally sought to regulate. There is no basis for

giving the same term different meanings in the two

provisions.

Application of the FDCPA to Ohio’s debt-collection

special counsel does not intrude on Ohio’s sovereignty.

The State remains entirely free to use its own officers

and employees to collect debts owed to it without

triggering the FDCPA’s coverage. And if a State

retains private independent contractors to assist in

those efforts (as Ohio has done), the only consequence

is that those contractors must abide by the norms that

apply to private debt collectors generally. Petitioners

cite no decision of this Court suggesting that applica-

tion of federal law to a State’s independent contrac-

tors intrudes on state sovereignty or implicates any

clear-statement rule.

10

II. In addition to its general prohibition of the use

of a “false, deceptive, or misleading representation or

means in connection with the collection of any debt,”

15 U.S.C. 1692e, Section 1692e identifies 16 specific

representations or practices as per se violations.

Those include false representations that a document

was issued by a state official, 15 U.S.C. 1692e(9), and

“(t]he use of any business, company, or organization

name other than the true name of the debt collector’s

business, company, or organization,” 15 U.S.C.

1692e(14). Because a reasonable jury could conclude

that the letters at issue here violated one or both of

those prohibitions, the court of appeals correctly re-

versed the district court’s grant of summary judgment

for petitioners.

Whether the letters at issue here were false, decep-

tive, or misleading should be judged from the perspec-

tive of an unsophisticated consumer (also referred to

as the “least sophisticated consumer”). The Federal

Trade Commission took that approach in enforcing the

Federal Trade Commission Act, 15 U.S.C. 41 et seq.,

before Congress enacted the FDCPA in 1977. Partic-

ularly because the FDCPA contains congressional

findings that prior laws had been inadequate to pro-

tect consumers against abusive debt-collection prac-

tices, the FDCPA should not be construed to adopt a

standard that is less protective of consumers.

A reasonable jury could conclude that the use of

Ohio Attorney General letterhead by debt-collection

special counsel violated the FDCPA. Petitioners

argue that use of the letterhead was not misleading

because it accurately identified the entity (the Office

of the Ohio Attorney General) for whom special coun-

sel were performing debt-collection services. The

11

established function of a letterhead, however, is to

identify the sender of a communication. Use of Ohio

Attorney General letterhead therefore falsely implied

that special counsel worked within that government

office, when in fact they had been retained as inde-

pendent contractors. And while petitioners contend

that consumers would not care whether dunning let-

ters were sent by a government official or a private

contractor, Congress reached a different judgment.

The FDCPA specifically prohibits false representa-

tions as to the source of debt-collection letters, as well

as false representations that a communication was

issued by a state official, and the Act draws a funda-

mental distinction between creditors’ use of their own

personnel to collect debts and similar efforts by third-

party independent contractors.

ARGUMENT

The FDCPA reflects Congress’s effort to protect

consumers from “debt collection abuse by third party

debt collectors.” S. Rep. No. 382, 95th Cong., Ist

Sess. 2 (1977) (Senate Report). “Unlike creditors, who

generally are restrained by the desire to protect their

good will when collecting past due accounts,” third-

party debt collectors may “have no future contact with

the consumer and often are unconcerned with the

consumer’s opinion of them.” Jbid. The FDCPA ac-

cordingly regulates the debt-collection activities of

third-party contractors, but not the efforts of credi-

tors to collect debts owed to themselves.

The FDCPA’s fundamental distinction between

creditors and third-party debt collectors is crucial to

the proper resolution of both questions presented

here. Because Ohio special counsel are not part of the

State’s government, but instead are retained as inde-

12

pendent contractors, they are subject to the FDCPA’s

requirements. A reasonable jury could conclude that,

by creating the false impression that the letters were

sent by public officials, those special counsel violated

the Act. The judgment of the court of appeals there-

fore should be affirmed.

I. OHIO’S DEBT-COLLECTION SPECIAL COUNSEL ARE

“DEBT COLLECTOR(S)” SUBJECT TO THE FDCPA’S

REQUIREMENTS AND PROHIBITIONS

Subject to enumerated exceptions, the FDCPA de-

fines the term “debt collector” to include any person

“who regularly collects or attempts to collect, directly

or indirectly, debts owed or due or asserted to be

owed or due another.” 15 U.S.C. 1692a(6). Petitioners

do not dispute that this language encompasses Ohio

debt-collection special counsel. Petitioners rely in-

stead on Section 1692a(6)(C), which states that the

term “debt collector” does not include “any officer or

employee of * * * any State to the extent that col-

lecting or attempting to collect any debt is in the per-

formance of his official duties.” 15 U.S.C. 1692a(6)(C).

Petitioners are incorrect. Because Ohio’s debt-

collection special counsel are not part of the state

government, but instead are third-party debt collec-

tors hired as independent contractors, they are sub-

ject to the FDCPA’s requirements and prohibitions.

A. Ohio’s Debt-Collection Special Counsel Are Not State

“Officer{[s]” Within The Meaning Of Section

1692a(6)(C)

1. Although the FDCPA does not define the term

“officer,” the Dictionary Act states that, “unless the

context indicates otherwise,” the term “‘officer’ in-

cludes any person authorized by law to perform the

13

duties of the office.” 1 U.S.C. 1. The Dictionary Act

does not specify what qualifies as an “office” for pur-

poses of that definition or what it means for a person

to be “authorized by law” to perform certain duties.

To give meaning and context to those concepts, the

Court should look to the common law’s definition of

public “office” and “officer” because, “[wJhere Con-

gress uses terms that have accumulated settled mean-

ing under the common law, a court must infer,

unless the statute otherwise dictates, that Congress

means to incorporate the established meaning of these

terms.” Neder v. United States, 527 U.S. 1, 21 (1999)

(citations omitted; brackets in original).

2. At common law, courts determined whether an

individual was a government officer—as opposed to a

government employee or an independent contractor—

by examining the nature, quality, and source of the

individual’s duties and authority. See, e.g., United

States v. Germaine, 99 U.S. (9 Otto) 508, 511 (1879)

(examining the “nature of [the individual’s] employ-

ment” to conclude that “he is not an officer”); State ex

rel. Landis v. Board of Comm’rs of Butler Cnty., 115

N.E. 919, 919-920 (Ohio 1917) (examining the “quality”

and source of the individual’s duties to determine that

he was not an officer); State ex rel. Newman v. Skin-

ner, 191 N.E. 127, 128 (Ohio 1934) (same). The term

“office” generally “embraces the ideas of tenure, dura-

tion, emolument, and duties.” United States v. Hart-

well, 73 U.S. (6 Wall.) 385, 393 (1868); see Hall v.

Wisconsin, 103 (13 Otto) U.S. 5, 9 (1880); Metcalf &

Eddy v. Mitchell, 269 U.S. 514, 520 (1926). The term

typically refers to a position that is defined or pre-

scribed by law rather than by contract, Metcalf &

Eddy, 269 U.S. at 520; with fixed compensation, Hall,

14

103 U.S. (13 Otto) at 9; Germaine, 99 U.S. (9 Otto) at

512; and with duties that are permanent and continu-

ing even when the office-holder changes, Germaine,

99 U.S. (9 Otto) at 512; see United States v. Maurice,

26 F Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747)

(Marshall, C.J.); State v. Wilson, 29 Ohio St. 347, 349

(1876).

A leading 19th Century treatise on public officers

explained:

A public office is the right, authority and duty, cre-

ated and conferred by law, by which for a given pe-

riod, either fixed by law or enduring at the pleas-

ure of the creating power, an individual is invested

with some portion of the sovereign functions of the

government, to be exercised by him for the benefit

of the public. The individual so invested is a public

officer.

Floyd R. Mechem, A Treatise on the Law of Public

Offices and Officers § 1, at 1-2 (1890) (Mechem) (foot-

notes omitted). As the Supreme Court of Maine ob-

served in one influential opinion, “the term ‘office’

implies a delegation of a portion of the sovereign pow-

er to, and possession of it by the person filling the

office.” Opinion of the Justices, 3 Greenl. (Me.) 481,

482 (1822). An individual is considered to exercise a

delegated portion of the sovereign power when his

authority is granted by law and the exercise of that

authority binds third parties or the government with-

out the need for additional authorization by the indi-

vidual’s principal. Jd. at 482; State v. Jennings, 49

N.E. 404, 405-406 (Ohio 1898) (“[P]rominence is given

to the fact that a public officer is one who exercises, in

an independent capacity, a public function, in the

interest of the people, by virtue of law, which is only

15

saying, in another form, that he exercises a portion of

the sovereignty of the people delegated to him by

law.”). This Court explained in Germaine, for exam-

ple, that a “pensions surgeon” was not an officer of the

United States because the nature of his duties made

him merely the “agent of the [C]ommissioner” of Pen-

sions, appointed “to procure information needed to aid

in the performance of [the Commissioner’s] own offi-

cial duties” rather than appointed to carry out his own

independent functions. 99 U.S. (9 Otto) at 512.

Common-law courts and relevant secondary sourc-

es have frequently contrasted public officers, whose

duties are defined and conferred by law, with inde-

pendent contractors, whose duties are defined and

conferred by contract. The Mechem treatise ex-

plained that “[a] public office * * * is never con-

ferred by contract, but finds its source and limitations

in some act or expression of the governmental power.”

Mechem § 5, at 5. This Court echoed those senti-

ments in Hartwell, explaining that “[a) government

office is different from a government contract,” both

because “(t]he latter from its nature is necessarily

limited in its duration and specific in its objects” and

because the contract “terms agreed upon define the

rights and obligations of both parties, and neither may

depart from them without the assent of the other.” 73

U.S. (6 Wall.) at 393.

The Court in Metcalf & Eddy similarly held that

consulting engineers were independent contractors,

not officers, because “[t]heir duties were prescribed

by their contracts and it does not appear to what ex-

tent, if at all, they were defined or prescribed by stat-

ute.” 269 U.S. at 520. Summarizing the characteris-

tics that distinguish an officer from an independent

16

contractor, Chief Justice Marshall (riding circuit)

explained:

But if a duty be a continuing one, which is defined

by rules prescribed by the government, and not by

contract, which an indiviaual is appointed by gov-

ernment to perform, who enters on the duties ap-

pertaining to his station, without any contract de-

fining them, if those duties continue, though the

person be changed; it seems very difficult to distin-

guish such a charge or employment from an office,

or the person who performs the duties from an of-

ficer.

Maurice, 26 F Cas. at 1214.'

3. Under the approach described above, Ohio’s

debt-collection special counsel are not state officers

because they do not hold positions that “embrace[] the

ideas of tenure, duration, emolument, and duties.”

Hartwell, 73 U.S. (6 Wall.) at 393.

a. Ohio’s debt-collection special counsel serve for a

period of time that is established solely by contract

and is terminable at the will of the Attorney General.

J.A. 171, 185-186. Ohio law leaves the decision wheth-

er to appoint any special counsel at all, or whether to

replace a special counsel whose contract is terminated,

entirely to the discretion of the State’s Attorney Gen-

eral. See Ohio Rev. Code Ann. § 109.08 (LexisNexis

2014). The compensation scheme for Ohio special

counsel also differs from the “emolument” usually

' Ohio law is to the same effect. See, e.g., Fuldauer v. City of

Cleveland, 290 N.E.2d 546, 551 (Ohio 1972) (“{A) public officer or

employee holds his office or position as a matter of law and not of

contract.”); see also Wilson, 29 Ohio St. at 349 (same); Board of

Comm'rs of Butler Cty., 115 N.E. at 919 (same).

17

associated with government officers because it is

established by contract and is not “fixed by law.”

Hartwell, 73 U.S. (6 Wall.) at 393; see Metcalf & Ed-

dy, 269 U.S. at 520; Hall, 103 U.S. (13 Otto) at 9; see

also Scofield v. Strain, 51 N.E. 1012, 1015 (Ohio 1943).

Ohio Revised Code § 109.08 provides that “special

counsel shall be paid for their services from funds

collected by them in an amount approved by the At-

torney General,” and the Retention Agreement states

that each special counsel will receive defined percent-

ages of the amounts he collects. J.A. 180-183.

b. Ohio’s debt-collection special counsel are not

“authorized by law to perform the duties of [any]

office,” 1 U.S.C. 1, and they do not exercise delegated

sovereign authority.

The Ohio legislature has authorized the State’s At-

torney General to “appoint” private lawyers for the

purpose of collecting debts owed to the State of Ohio.

See Ohio Rev. Code Ann. § 109.08 (LexisNexis 2014);

Pet. Br. 27-28; Pet. App. 57a (Sutton, J., dissenting).

The term “office,” however, has traditionally been

understood to “embrace[] the idea of * * * duties

fixed by law,” and “(t]he term ‘officer’ is one insepara-

bly connected with an office.” Metcalf & Eddy. 269

U.S. at 520. A contract for performance of services is

not sufficient to create an “office,” even when “en-

tered into by authority of law and prescribing [the

individuals’] duties.” bid. Where a position “lack[s]

* * * the essential elements of a public station, per-

manent in character, created by law, whose incidents

and duties were prescribed by law,” the individuals

holding the position are “in the position of independ-

ent contractors.” /bid.

18

Ohio Revised Code § 109.08 authorizes the State’s

Attorney General to hire outside attorneys to assist in

a particular subset of the duties assigned to the Office

of the Attorney General. But the statute does not

create an “office of special counsel” and does not spec-

ify the range of duties that any particular individual

hired as a special counsel is entitled to perform. Nor

does it confer governmental authority upon any par-

ticular individual hired as a special counsel. Rather,

as the court of appeals explained, “Section 109.08

simply establishes the framework under which the

Attorney General, within his or her discretion, may

delegate the collection of debts to a third-party debt

collector.” Pet. App. 32a.

c. Even assuming, arguendo, that Section 109.08

would have authorized the Ohio Attorney General to

take further steps to create positions having the char-

acteristics of government “offices,” the Attorney Gen-

eral has not done so. To the contrary, in the Reten-

tion Agreement used to hire special counsel, the At-

torney General retains complete discretion to decide

which debts, if any, a particular special counsel may

pursue. J.A. 171, 173-174. Special counsel are not

authorized to settle any claim or to initiate litigation

on behalf of the State with respect to any claim with-

out first obtaining “the prior approval of the Attorney

General.” J.A. 179.

The Retention Agreement specifies, moreover, that

“Special Counsel will render services pursuant to this

appointment as an independent contractor. No Spe-

cial Counsel, whether for purpose of applications of

Ohio Revised Code Chapter 102, R.C. 9.86 or 9.07 or

for any other purpose, shall be regarded as in the

employment of, or as an employee of, the Attorney

19

General or the State Clients.” J.A. 173. The Ohio

Revised Code provisions that the Retention Agree-

ment declares to be inapplicable address indemnifica-

tion of state officers and employees. Rather than

providing that the State will indemnify special coun-

sel, the contract requires special counsel to indemnify

the Attorney General and the State of Ohio for “any

and all claims for injury or damages arising from this

Retention Agreement that are attributable to Special

Counsel’s own actions.” J.A. 190. The Retention

Agreement thus reflects the Attorney General’s clear

intent to disclaim any inference that appointed spe-

cial counsel are part of the State’s government.

Special counsel are similar to the “pensions sur-

geons” that the Court in Germaine found not to be

officers. 99 U.S. (9 Otto) at 511-512. Like Ohio Re-

vised Code § 109.08, a federal statute authorized a

government officer (the Commissioner of Pensions)

“to appoint” pensions surgeons to perform certain

tasks delegated to the surgeons at the principal’s

discretion. 99 U.S. (9 Otto) at 508 (citing Act of Mar.

3, 1873, ch. 234, § 35, 17 Stat. 576). The Commission-

er of Pensions, like the Ohio Attorney General, was

authorized to “appoint one or a dozen persons to do

the same thing.” Jd. at 512. And like Ohio’s debt-

collection special counsel, the pensions surgeon in

Germaine had duties that were “occasional and inter-

mittent” and were designed “to aid in the performance

of [the principal’s] own official duties.” /bid.

Ohio’s debt-collection special counsel also have

been delegated no portion of Ohio’s sovereignty. They

are not authorized by law, or even by contract, to

undertake any independent action that will bind a

third party, the Ohio Attorney General, or the State of

20

Ohio. See, e.g., Mechem § 4, at 5; Opinion of the

Justices, 3 Greenl. (Me.) at 482; Germaine, 99 U.S. (9

Otto) at 512; p. 18, supra. As explained above, special

counsel must confer with the Attorney General’s office

and “receive the prior approval of the Attorney Gen-

eral” before settling any claim or initiating litigation.

J.A. 179. Although special counsel undoubtedly assist

the Office of the Attorney General in pursuing debts

owed to the State, they do not exercise any sovereign

authority in doing so and therefore cannot properly be

considered “officers.”*

B. The Structure And Purposes Of The FDCPA Confirm

That Ohio’s Special Counsel Are Not State “Officers”

Within The Meaning Of Section 1692a(6)(C)

Petitioners identify no sound reason to construe

the term “officer” in Section 1692a(6)(C) as sweeping

? A different analysis may sometimes be required to determine

whether an individual is excluded from the FDCPA’s definition of

“debt collector” as an “employee” of the creditor. Staff of the FTC

previously stated that the creditor “employee[s]” excluded under

Section 1692e(6)(A) could include a “de facto employee” who

“works for a creditor to collect in the creditor's name at the credi-

tor's office under the creditor's supervision.” 53 Fed. Reg. 50,097,

50,102 (Dec. 13, 1988). In a subsequent letter, FTC staff stated

that the “de facto employee” concept does not “encompass broader

categories, such as the creditor's representatives or agents,” but

only those collection-agency employees who are “treated essential-

ly the same as creditor employees.” Letter from Thomas E. Kane,

Attorney, Division of Financial Practices, FTC, to Richard T. de

Mayo, Esq. (May 23, 2002), at 2-3. The CFPB, which is the first

agency with general rulemaking authority under the FDCPA, has

not addressed this rationale. No question concerning the proper

application of the “de facto employee” concept is presented here,

because petitioners do not argue that Ohio’s debt-collection special

counsel are “employee[s]” of the State within the meaning of

Section 1692a(6)(C).

21

beyond the established common-law understanding to

encompass individuals, like Ohio special counsel, who

are retained as independent contractors rather than

made part of the state government. To the contrary,

the FDCPA’s structure and purposes reinforce the

conclusion that such independent contractors are not

state “officer{s]” within the meaning of Section

1692a(6)(C).

The distinction between a creditor’s use of in-house

personnel to collect debts and its hiring of third-party

debt collectors is fundamental to the FDCPA’s opera-

tion. In addition to the exemption for state officers

and employees that is at issue in this case, a separate

provision exempts from the FDCPA’s coverage “any

officer or employee of a creditor while, in the name of

the creditor, collecting debts for such creditor.” 15

U.S.C. 1692a(6)(A). That provision ensures that pri-

vate creditors, like state governments, can use their

own personnel to collect debts owed to them without

becoming subject to the FDCPA.

A reading of Section 1692a(6)(A) that encompassed

debt collectors retained as independent contractors

would wholly subvert Congress’s purposes. If such

contractors were treated as “officers” of a private

creditor, simply because they had been retained by:

the creditor to assist in its debt-collection activities,

Section 1692a(6)(A) would exempt from the FDCPA’s

coverage the very persons whom Congress primarily

sought to regulate. See Senate Report 3 (“The prima-

ry persons intended to be covered [by the Act] are

independent debt collectors.”); see id. at 2 (“The

committee has found that debt collection abuse by

third party debt collectors is a widespread and serious

national problem.”).

22

Petitioners’ argument thus depends on the view

that, although Congress used the phrase “officer or

employee” in both Section 1692a(6)(A) and Section

1692a(6)(C), it intended the word “officer” to encom-

pass independent contractors in the second provision

but not in the first. That approach flouts bedrock

principles of statutory construction. “Generally,

‘identical words used in different parts of the same

statute are presumed to have the same mean-

ing.” Robers v. United States, 134 S. Ct. 1854, 1857

(2014) (quoting Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Dabit, 547 U.S. 71, 86 (2006)). That

interpretive canon has particular force here, because

the two provisions appear close together within a list

of exemptions from the FDCPA’s definition of “debt

collector.”

If Congress had wished to adopt the broad exemp-

tion that petitioners advocate, it could easily have

drafted Section 1692a(6)(C) to encompass “any person

authorized to collect a debt owed to a State or state

agency.” Congress’s decision instead to use in Section

1692a(6)(C) the same phrase (“officer or employee”)

that it used in Section 1692a(6)(A) makes clear that

Congress intended the collection of debts owed to

States to be subject to the same basic FDCPA regime

that governs collection of debts owed to private credi-

tors. Both private and governmental creditors may

use in-house personnel to collect debts without trig-

gering the Act’s coverage. But when either type of

creditor elects to hire an outside attorney to engage in

debt collection as an independent contractor, those

contractors must comply with the Act.

23

C. Application Of The FDCPA To Ohio’s Debt-Collection

Special Counsel Does Not Intrude On Ohio’s Sovereign

Interests

Petitioners argue (Br. 1-3, 19-22, 27-30) that Ohio’s

debt-collection special counsel should be treated as

state “officer[s]” within the meaning of Section

1692a(6)(C) to avoid impairment of the State’s sover-

eign function of collecting money owed to it. See Pet.

App. 58a (Sutton, J., dissenting) (“Special counsel

[are] hired to perform core sovereign functions” “con-

cerning the People’s money.”). The collection of debts

owed to a State is undoubtedly essential to the State’s

financial soundness and thus to its effective opera-

tions. Petitioners identify no sound basis for conclud-

ing, however, that application of the FDCPA to Ohio

special counsel will impede that function or otherwise

impair the State’s sovereign dignity.

Petitioners argue (Br. 24, 34) that States have a

sovereign interest in determining their structure of

government and the appropriate division of authority

within that structure. But the FDCPA leaves the

States entirely free to designate their own officers and

employees to collect debts owed to them. If a State

chooses that approach, the FDCPA is inapplicable to

its collection efforts. Provisions like Section

1692a(6)(C), which exempts state officers and employ-

ees from the FDCPA, are a traditional means by

which Congress seeks to preserve intergovernmental

comity and to avoid unnecessary interference with the

operation of state governments.

The FDCPA likewise leaves Ohio free to contract

with persons outside the government for assistance in

collecting debts owed to the State. The consequence

of that decision, however, is that those private con-

24

tractors (although not the State itself) may be held

liable under the FDCPA if they violate the norms that

apply to private third-party debt collectors generally.

The Retention Agreement between the Ohio Attorney

General and special counsel directs that “Special

Counsel must comply with the same standards of

behavior as set forth in,” inter alia, the FDCPA. J.A.

194. Thus, while the Ohio Attorney General opposes a

legal rule that would subject special counsel to liabil-

ity under the FDCPA, he evidently does not view the

Act’s substantive requirements as inconsistent with

effective debt collection. More fundamentally, peti-

tioners cite no decision of this Court suggesting that

application of federal law to a State’s independent

contractors intrudes on state sovereignty or triggers

any clear-statement rule.

Petitioners’ reliance (Br. 24, 30) on Gregory v. Ash-

croft, 501 U.S. 452 (1991), is particularly misplaced.

Gregory presented the question whether the Age

Discrimination in Employment Act of 1967 (ADEA),

29 U.S.C. 621 et seg., overrode a Missouri constitu-

tional provision that imposed a mandatory retirement

age on the justices of its state supreme court. 501

U.S. at 455. The Court observed that the policy

judgment reflected in the Missouri retirement-age

provision was “a decision of the most fundamental sort

for a sovereign entity” because “(tJhrough the struc-

ture of its government, and the character of those who

exercise government authority, a State defines itself

as a sovereign.” /d. at 460. Absent an unambiguous

statement of congressional intent to countermand the

State’s judgment, the Court declined to read the

ADEA to dictate that result. /d. at 460-467.

25

In this case, by contrast, Ohio officials have de-

clared debt-collection special counsel to be independ-

ent contractors, and the State has chosen not to vest

those special counsel with governmental power. Noth-

ing in Gregory suggests that application of the

FDCPA is disfavored in these circumstances simply

because Ohio special counsel provide useful practical

assistance in the performance of an important state

function. In that regard, special counsel are not

meaningfully different from many other individuals

(e.g., truck drivers or construction workers) who are

employed by private companies but occasionally per-

form work pursuant to contracts with the State. Ap-

plication of federal law to such persons has not tradi-

tionally been thought to impair state sovereign pre-

rogatives.

Petitioners’ emphasis on the State’s sovereign in-

terest in collecting debts owed to it is flawed in anoth-

er respect as well. Section 1692a(6)(C) exempts from

the FDCPA’s definition of “debt collector” any state

officer or employee “to the extent that collecting or

attempting to collect any debt is in the performance of

his official duties.” Although Section 1692a(6)(C)

encompasses state officers and employees who collect

debts owed to the State itself, it is not limited to such

persons. Rather, Section 1692a(6)(C) also exempts

from the FDCPA’s definition of “debt collector” any

state officer or employee who is tasked by state law

with collecting debts owed to private persons. Cf.

Senate Report 3 (noting that Congress did not intend

the FDCPA to cover “marshals and sheriffs, while in

the conduct of their official duty” or “process serv-

ers”). That aspect of Section 1692a(6)(C) highlights

Congress’s decision to make the exemption turn on an

26

individual’s status as a state “officer or employee”—

i.e., as part of the state government—rather than on

the identity of the creditor to whom the debt is owed.

Il. A REASONABLE JURY COULD CONCLUDE THAT

OHIO’S DEBT-COLLECTION SPECIAL COUNSEL

VIOLATED THE FDCPA BY USING THE LETTER-

HEAD OF THE OFFICE OF THE ATTORNEY GEN-

ERAL

Petitioners argue that, as a matter of law, the use

by Ohio’s debt-collection special counsel of the Ohio

Attorney General’s letterhead in communications with

debtors cannot constitute a violation of the FDCPA.

The court of appeals correctly rejected that conten-

tion.

The FDCPA provides, inter alia, that “[a] debt col-

lector may not use any false, deceptive, or misleading

representation or means in connection with the collec-

tion of any debt.” 15 U.S.C. 1692Ze. In addition to that

general prohibition, Section 1692e includes a non-

exhaustive list of 16 specific representations or prac-

tices that are per se violations. Two such practices

are relevant here:

(9) The use or distribution of any written

communication which simulates or is falsely repre-

sented to be a document authorized, issued, or ap-

proved by any court, official, or agency of the Unit-

ed States or any State, or which creates a false im-

pression as to its source, authorization or approval.

* *

(14) The use of any business, company, or or-

ganization name other than the true name of the

debt collector’s business, company, or organization.

27

15 U.S.C. 1692e(9) and (14). In light of Section 1692e’s

general and specific prohibitions, the court of appeals

correctly held that a reasonable jury could find the

use by Ohio’s debt-collection special counsel of letter-

head from the Office of the Attorney General to be a

violation of the FDCPA.

A. Whether A Debt-Collection Practice Is False, Decep-

tive, Or Misleading Should Be Judged From The Per-

spective Of An Unsophisticated Consumer

The FDCPA does not specify from whose perspec-

tive a judge or jury should assess whether a particular

debt-collection practice is deceptive, is misleading, or

creates a false impression. Every court of appeals to

consider the question has adopted an “unsophisticated

consumer” test (also known as a “least sophisticated

consumer” test). Pollard v. Law Office of Mandy L.

Spaulding, 766 F.3d 98, 103 & n.4 (1st Cir. 2014);

Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 173

(2d Cir. 2015); Jensen v. Pressler & Pressler, 791 F.3d

413, 418 (3d Cir. 2015); Russell v. Absolute Collection

Servs., Inc., 763 F.3d 385, 395 (4th Cir. 2014); Gos-

wami v. American Collections Enter., Inc., 377 F.3d

488, 495 (5th Cir. 2004), cert. denied, 546 U.S. 811

(2005); Pet. App. 46a-48a; Gammon v. GC Servs. Ltd.

P’ship, 27 F.3d 1254, 1257 (7th Cir. 1994); Peters v.

General Serv. Bureau, Inc., 277 F.3d 1051, 1055 (8th

Cir. 2002); Donohoe v. Quick Collect, Inc., 592 F.3d

1027, 1033 (9th Cir. 2010); Fouts v. Express Recovery

Servs., Inc., 602 Fed. Appx. 417, 421 (10th Cir. 2015);

Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291,

1306 (11th Cir. 2015).*

* Courts of appeals agree that there is no practical difference

between the “unsophisticated consumer” and “least sophisticated

28

Petitioners urge the Court to adopt a test that

would examine debt-collection practices from the

perspective of “the average consumer who has de-

faulted on a debt.” Br. 41. Petitioners do not explain

how, as a practical matter, such a test would differ

from an unsophisticated-consumer test. No court of

appeals has adopted petitioners’ formulation, and

there is no reason for this Court to do so. Rather, the

established focus on the likely reactions of reasonable

but unsophisticated consumers best serves the intent

of the Congress that enacted the FDCPA.

Before the FDCPA’s enactment in 1977, the Fed-

eral Trade Commission (FTC or Commission) moni-

tored debt collectors under Section 5 of the Federal

Trade Commission Act (FTC Act), 15 U.S.C. 45, which

prohibits unfair or deceptive acts or practices in or

affecting commerce. By the time the FDCPA was

enacted, the Commission had recognized that its “du-

ty” under the FTC Act was “to protect the ‘gullible

and credulous as well as the cautious and knowledge-

able.’” In re Slough, 70 F.T.C. 1318, 1355 (1966) (cita-

tion omitted), enforced, Slough v. FTC, 396 F.2d 870

(5th Cir. 1968), cert. denied, 393 U.S. 980 (1968). In

upholding an FTC finding that an advertising practice

was unfair, false, and misleading, this Court admon-

ished that “[lJaws are made to protect the trusting as

well as the suspicious.” FTC v. Standard Educ. Soc’y,

302 U.S. 112, 116 (1937). Lower courts reviewing

similar FTC findings held that, “[iJn evaluating the

tendency of language to deceive, the Commission

should look not to the most sophisticated readers but

rather to the least.” Exposition Press, Inc. v. FTC,

consumer” standards. See, e.g., Pollard, 766 F.3d at 103 n.4;

Jensen, 791 F.3d at 419 n.3.

29

295 F.2d 869, 872 (2d Cir. 1961), cert. denied, 370 U.S.

917 (1962).

The FDCPA contains congressional findings that

“(e)xisting laws and procedures for redressing * * *

injuries” caused by “abusive, deceptive, and unfair

debt collection practices” were “inadequate to protect

consumers.” 15 U.S.C. 1692(a) and (b). Based in part

on those statutory findings, courts of appeals have

correctly inferred that Congress did not intend to

adopt an FDCPA standard less protective of consum-

ers than the standard previously applied under the

FTC Act. Jeter v. Credit Bureau, Inc., 760 F.2d 1168,

1173-1174 (11th Cir. 1985) (“It would be anomalous for

the Congress, in light of its belief that existing state

and federal law was inadequate to protect consumers,

to have intended that the legal standard under the

FDCPA be less protective of consumers than under

the existing ‘inadequate’ legislation.”); see Baker v.

G.C. Servs. Corp., 677 F.2d 775, 778 (9th Cir. 1982)

(adopting least-sophisticated-consumer standard from

FTC’s analysis of deceptive-advertising claims).

As applied by courts of appeals in FDCPA cases,

the unsophisticated-consumer standard is an objective

standard that incorporates an element of reasonable-

ness. The standard is designed to protect “‘con-

sumers of below-average sophistication or intelli-

gence’ who are ‘especially vulnerable to fraudulent

schemes,’” Gammon, 27 F.3d at 1257 (quoting Clomon

v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993)), but it

“prevents liability for bizarre or idiosyncratic inter-

pretations of collection notices by preserving a quo-

tient of reasonableness and presuming a basic level of

understanding and willingness to read with care,”

Wilson v. Quadramed Corp., 225 F.3d 350, 354-355 (3d

30

Cir. 2000) (citation omitted). Courts thus consider

whether a hypothetical unsophisticated consumer who

is not inclined to bizarre or idiosyncratic interpreta-

tions would be confused or misled by a debt collector's

communication. McKinney v. Cadleway Props., Inc.,

548 F.3d 496, 503 (7th Cir. 2008); see McMahon v.

LVNV Funding, LLC, 744 F.3d 1010, 1019 (7th Cir.

2014) (considering perspective of person of modest

education and limited commercial savvy).

B. Because A Reasonable Jury Could Find That Ohio's

Debt-Collection Special Counsel Violated The FDCPA,

The Court Of Appeals Correctly Reversed The District

Court's Award Of Summary Judgment For Petitioners

Like any standard that refers to a reasonable per-

son or a reasonable consumer, the “reasonable unso-

phisticated consumer” standard is suitable for applica-

tion by a properly instructed jury (or by a judge as

factfinder in a bench trial). See Hana Fin., Inc. v.

Hana Bank, 135 S. Ct. 907, 911 (2015). In this case,

petitioners and respondents both argued to the court

of appeals that they were entitled to summary judg-

ment on respondents’ claim that an unsophisticated

consumer would be misled by special counsel’s use of

the Attorney General’s letterhead. The court rejected

both arguments, holding instead that a jury should

decide whether special counsel’s use of the letterhead

violated the FDCPA. Pet. App. 54a. Because re-

spondents did not file a petition or cross-petition for a

writ of certiorari, the only question before this Court

is whether the court of appeals erred in denying peti-

tioners’ request for entry of summary judgment. The

31

court of appeals’ ruling on that question should be

affirmed.‘

1. The FDCPA prohibits “[t]he use of any busi-

ness, company, or organization name other than the

true name of the debt collector’s business, company,

or organization.” 15 U.S.C. 1692e(14). Although that

prohibition is not limited to circumstances where a

third-party debt collector misrepresents itself to be

the creditor, it has particular salience in that context.

A third-party debt collector is subject to the FDCPA’s

requirements precisely because he is not the creditor.

But while that distinction is fundamental to the

FDCPA, it can be confusing for the debtor. Although

the consumer typically has a pre-existing relationship

with the original creditor, he is unlikely to know or be

familiar with a third-party debt collector. To mini-

mize the possibility of confusion, Congress not only

prohibited misrepresentations as to source, but af-

firmatively required debt collectors to disclose in

every communication with a debtor “that the commu-

nication is from a debt collector.” 15 U.S.C. 1692e(11).

* Some circuits have suggested that the district court can always

determine, as a matter of law, whether particular language in a

debt-collection letter violates the FDCPA. See, e.g., Wilson, 225

F.3d at 353 n.2. That is incorrect. This Court “ha[s) long recog-

nized across a variety of doctrinal contexts that, when the relevant

question is how an ordinary person or community would make an

assessment, the jury is generally the decisionmaker that ought to

provide the fact-intensive answer.” Hana Fin., 135 S. Ct. at 911.

Even when a jury trial has been requested, however, the district

court may determine, on a motion for summary judgment or for

judgment as a matter of law, whether a reasonable jury could find

for the non-moving party on the question whether a particular

communication violates Section 1692e. See ibid.

32

Of course, a debt collector’s communication may in-

clude the name of its client to the extent it identifies

for the debtor “the name of the creditor to whom the

debt is owed.” 15 U.S.C. 1692g(a)(2) (requiring debt

collector to inform the consumer of the name of the

creditor in the debt collector’s initial communication

with the consumer). But a debt collector’s use of the

creditor’s name to suggest that the creditor is the

actual sender of the letter is prohibited by Section

1692e(14).° Blurring the line between sender and rep-

resented party is especially problematic when the

creditor is a government entity because Section

1692e(9) separately prohibits the use of any communi-

cation that falsely suggests that the communication

was “issued * * * by any * * * official * * * of

* * * any State.” 15 U.S.C. 1692e(9).

2. Petitioners principally argue (Br. 46) that spe-

cial counsel’s use of the Attorney General’s letterhead

accurately conveyed that the letters were “sent on

behalf of the organization identified (the Attorney

General’s Office) by the individuals listed in the signa-

ture block (special counsel).” That argument rests on

the premise that, when the sender of a letter acts in a

representative capacity, the accepted function of a

letterhead is to identify the organization “on behalf

of” which the letter is sent—i.e., the client rather than

the representative. That is not so. By convention, the

established function of a letterhead is to identify the

sender of the letter. When a communication uses the

letterhead of an office or organization (including a law

firm), it implies that the individual sender of the letter

* Conversely, 15 U.S.C. 1692] makes it unlawful for a creditor to

give a consumer the false impression that the creditor has hired a

third-party debt collector.

33

is a member or employee of the organization, not that

the individual has been retained as an outside contrac-

tor to represent the organization.

Petitioners are also wrong in arguing (Br. 47) that,

notwithstanding special counsel’s use of the Ohio

Attorney General’s letterhead, the name of the special

counsel in the signature block dispels any possible

misconception about the sender’s identity and status.

Petitioner Jones’s letter identified him as “Outside

Counsel for the Attorney General’s Office,” Pet. App.

14a, and petitioner Sarah Sheriff’s letter identified

her (incorrectly) as “Special Counsel for the Attorney

General for the State of Ohio,” id. at 17a. Neither

letter states explicitly that the sender is a third-party

independent contractor rather than a government

officer or employee, and there is no basis for assuming

that a reasonable unsophisticated consumer would

understand the terms “Outside Counsel” and “Special

Counsel” to dispel the inference that the Ohio Attor-

ney General letterhead would otherwise create.

Indeed, petitioners have argued throughout this lit-

igation, including in this Court, that debt-collection

special counsel are “officers” of the State of Ohio, at

least for purposes of Section 1692a(6)(C). It therefore

is unsurprising that the letters sent by special counsel

conveyed that impression. At a minimum, a reasona-

ble jury could conclude, based on its assessment of the

inferences that a reasonable unsophisticated consum-

er could draw, that the letters violated Section

1692(e)(9) and/or Section 1692(e)(14).

3. Petitioners argue that Section 1692e contains a

“materiality element” such that the provision bars

only communications “concern[ing] matters that could

affect a debtor’s decisionmaking.” Br. 43; see Br. 43-

34

44. As explained above, Section 1692e contains a non-

exhaustive list of 16 types of false representations or

omissions that constitute violations of that provision.

To determine whether a particular communication

violates one of those prohibitions, a jury or judge must

assess how a reasonable unsophisticated consumer

would understand the communication—not what ac-

tions the consumer would likely take in response. To

be sure, the enumeration of those categories presum-

ably reflects the enacting Congress’s belief that, as a

general matter, the prohibited practices have a natu-

ral tendency to influence debtors’ decisionmaking. If

a particular communication is determined to fall with-

in one of the enumerated categories, however, the

statute does not contemplate any further inquiry into

the likelihood that the specific communication would

alter any decision of either the actual recipient or the

reasonable unsophisticated consumer.

Petitioners suggest (Br. 51) that it does not “mat-

ter to consumers” whether letters like those at issue

here are sent by state officials or by independent

contractors. Congress, however, has made a different

judgment, because the FDCPA specifically prohibits

false representations as to the source of dunning let-

ters, as well as false representations that a communi-

cation was issued by a state official. Those prohibi-

tions appear, moreover, within a statute that draws a

fundamental distinction between creditors’ efforts to

collect debts through their own personnel and credi-

tors’ use of independent contractors as third-party

debt collectors. Because petitioners’ letters could

have given a reasonable unsophisticated consumer the

false impression that the letters were sent by the

Office of the Ohio Attorney General, the court of ap-

35

peals correctly reversed the district court’s award of

summary judgment for petitioners.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

DONALD B. VERRILLI, JR.

MARY MCLEoD Solicitor General

General Counsel MALCOLM L. STEWART

TO-QUYEN TRUONG Deputy Solicitor General

Deputy General Counsel SARAH E. HARRINGTON

JOHN R. COLEMAN Assistant to the Solicitor

Assistant General Counsel General

NANDAN M. JOSHI

LAWRENCE DEMILLE-WAGMAN

Counsel

Consumer Financial

Protection Bureau

MARCH 2016

APPENDIX

1. 15 U.S.C. 1692 provides:

Congressional findings and declaration of purpose

(a) Abusive practices

There is abundant evidence of the use of abusive,

deceptive, and unfair debt collection practices by many

debt collectors. Abusive debt collection practices

contribute to the number of personal bankruptcies, to

marital instability, to the loss of jobs, and to invasions

of individual privacy.

(b) Inadequacy of laws

Existing laws and procedures for redressing these

injuries are inadequate to protect consumers.

(c) Available non-abusive collection methods

Means other than misrepresentation or other abu-

sive debt collection practices are available for the ef-

fective collection of debts.

(d) Interstate commerce

Abusive debt collection practices are carried on to a

substantial extent in interstate commerce and through

means and instrumentalities of such commerce. Even

where abusive debt collection practices are purely in-

trastate in character, they nevertheless directly affect

interstate commerce.

(la)

2a

(e) Purposes

It is the purpose of this subchapter to eliminate abusive

debt collection practices by debt collectors, to insure that

those debt collectors who refrain from using abusive debt

collection practices are not competitively disadvantaged,

and to promote consistent State action to protect consum-

ers against debt collection abuses.

2. 15 U.S.C. 1692a provides in pertinent part:

Definitions

As used in this subchapter—

* * * * *

(6) The term “debt collector” means any person

who uses any instrumentality of interstate commerce

or the mails if any business the principal purpose of

which is the collection of any debts, or who regularly

collects or attempts to collect, directly or indirectly,

debts owed or due or asserted to be owed or due ano-

ther. Notwithstanding the exclusion provided by

clause (F') of the last sentence of this paragraph, the

term includes any creditor who, in the process of col-

lecting his own debts, uses any name other than his

own which would indicate that a third person is col-

lecting or attempting to collect such debts. For the

purpose of section 1692f(6) or this title, such term also

includes any person who uses any instrumentality of

interstate commerce or the mails in any business the

principal purpose of which is the enforcement of secu-

rity interests. The terms does not include—

3a

(A) any officer or employee of a creditor while,

in the name of the creditor, collecting debts for such

creditor;

(B) any person while acting as a debt collector for

another person, both of whom are related by common

ownership or affiliated by corporate control, if the per-

son acting as a debt collector does so only for persons

to whom it is so related or affiliated and if the principal

business of such person is not the collection of debts;

(C) any officer or employee of the United States

or any State to the extent that collecting or attempting

to collect any debt is in the performance of his official

duties;

(D) any person while serving or attempting to

serve legal process on any other person in connection

with the judicial enforcement of any debt;

(E) any nonprofit organization which, at the re-

quest of consumers, performs bona fide consumer

credit counseling and assists consumers in the liquida-

tion of their debts by receiving payments from such

consumers and distributing such amounts to creditors;

and

(F) any person collecting or attempting to collect

any debt owed or due or asserted to be owed or due

another to the extent such activity (i) is incidental to a

bona fide fiduciary obligation or a bona fide escrow

arrangement; (ii) concerns a debt which was originated

by such person; (iii) concerns a debt which was not in

default at the time it was obtained by such person; or

(iv) concerns a debt obtained by such person as a se-

4a

cured party in a commercial credit transaction involv-

ing the creditor.

* e e * +

3. 15 U.S.C. 1692e provides:

False or misleading representations

A debt collector may not use any false, deceptive, or

misleading representation or means in connection with

the collection of any debt. Without limiting the gen-

eral application of the foregoing, the following conduct

is a violation of this section:

(1) The false representation or implication

that the debt collector is vouched for, bonded by, or

affiliated with the United States or any State, in-

cluding the use of any badge, uniform, or facsimile

thereof.

(2) The false representation of—

(A) the character, amount, or legal status of

any debt; or

(B) any services rendered or compensation

which may be lawfully received by any debt col-

lector for the collection of a debt.

(3) The false representation or implication

that any individual is an attorney or that any com-

munication is from an attorney.

(4) The representation or implication that non-

payment of any debt will result in the arrest or im-

prisonment of any person or the seizure, garnish-

ment, attachment, or sale of any property or wages

5a

of any person unless such action is lawful and the

debt collector or creditor intends to take such ac-

tion.

(5) The threat to take any action that cannot

legally be taken or that is not intended to be taken.

(6) The false representation or implication

that a sale, referral, or other transfer or any inter-

est in a debt shall cause the consumer to—

(A) lose any claim or defense to payment of

the debt; or

(B) become subject to any practice prohib-

ited by this subchapter.

(7) The false representation or implication

that the consumer committed any crime or other

conduct in order to disgrace the consumer.

(8) Communicating or threatening to commu-

nicate to any person credit information which is

known or which should be known to be false, in-

cluding the failure to communicate that a disputed

debt is disputed.

(9) The use or distribution of any written com-

munication which simulates or is falsely represent-

ed to be a document authorized, issued, or approved

by any court, official, or agency of the United States

or any State, or which creates a false impression as

to its source, authorization, or approval.

(10) The use of any false representation or de-

ceptive means to collect or attempt to collect any

debt or to obtain information concerning a consum-

er.

6a

(11) The failure to disclose in the initial written

communication with the consumer and, in addition,

if the initial communication with the consumer is

oral, in that initial oral communication, that the

debt collector is attempting to collect a debt and

that any information obtained will be used for that

purpose, and the failure to disclose in subsequent

communications that the communication is from a

debt collector, except that this paragraph shall not

apply to a formal pleading made in connection with

a legal action.

(12) The false representation or implication

that accounts have been turned over to innocent

purchasers for value.

(13) The false representation or implication

that documents are legal process.

(14) The use of any business, company, or or-

ganization name other than the true name of the

debt collector’s business, company, or organization.

(15) The false representation or implication

that documents are not legal process forms or do

not require action by the consumer.

(16) The false representation or implication

that a debt collector operates or is employed by a

consumer reporting agency as defined by section

1681a(f) of this title.

7a

4. 15 U.S.C. 1692j provides:

Furnishing certain deceptive forms

(a) It is unlawful to design, compile, and furnish

any form knowing that such form would be used to cre-

ate the false belief in a consumer that a person other

than the creditor of such consumer is participating in

the collection of or in an attempt to collect a debt such

consumer allegedly owes such creditor, when in fact

such person is not so participating.

(b) Any person who violates this section shall be

liable to the same extent and in the same manner as a

debt collector is liable under section 1692k of this title

for failure to comply with a provision of this subchap-

ter.