# Amicus Curiae Brief — Sheriff v. Gillie, 136 S. Ct. 614 (2015) (No. 15-338) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0614%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2015 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0614%3A12. Public record. Not legal advice.