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

No. 15-338

—

In the —— Court of - Gnited States

—s —— eer eae ee ee +

MARK J. SHERIFF, et al

Petitioners,

Vv.

PAMELA GILLIE AND HAZEL MEADOWS,

or.

~~ - oo —_--- wee ewe oe ee

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

— ee ee eee Cee a

BRIEF OF NATIONAL CONSUMER LAW CENTER,

NATIONAL ASSOCIATION OF CONSUMER

ADVOCATES, AND PUBLIC GOOD LAW CENTER AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

eee eee ae ae ee CUO

RICHARD J. RUBIN DEEPAK GUPTA

1300 Canyon Road Counsel of Record

Santa Fe, NM 87501 JONATHAN F.. TAYLOR

505) 983-4418 NEIL K, SAWHNEY

GUPTA WESSLER PLLC

1735 20th Street, NW

Washington, DC 20009

(202) 888-1741

decpak@guptawessler.com

Counsel for Amici Curiae

March 2, 2016

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TABLE OF CONTENTS

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Introduction and summary of argument.....................00+++ 1

eT IIIT Unrnicrncitopnnieniecesiuaiinanntninepeniiesbiniusidil 2

TENET are TENET T 3

ei ccisiesitsahiceniiaitindeianniiiceiittaalataiaiiesieasiiiaailiaiidiaaaieinniaal 4

I. Because the petitioners committed per se

violations of the FDCPA, this Court need

not address whether materiality may be

required under different circumstances. ................. 4

II. This Court should not entertain the

petitioners’ proposal to adopt a new

I rine cccracissiestsalitrintietnltetenaianiiat 7

i arccnennrsinteasvinainntinnssnaianiniganatasainipaeieiniateniias 13

ii-

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Mineta,

8 ERTS SAS aC NTO

Avila v. Rubin,

84 FBd 222 (Tth Cir. 1996) .............cccereeserceeessssencscesenenes

Campuzano—Burgos v. Midland Credit

Mangement, Inc.,

A 10

City & County of San Francisco v. Sheehan,

ee as MITT scscoirsicenicinitieneserlicastadancnpabiicpsccininintctael

Clark v. Capital Credit & Collection Services,

Inc.,

460 F.3d 1162 (Sth Cir. 2006) ..............0cccccccccccccscecseeess 10

Clomon v. Jackson,

988 F.2d 1314 (2d Cir. 19938)...............c.ccccccccccseseseeees 8, 10

Evory v. RJM Acquisitions Funding L.L.C.,

ee ae Se Gh Ce cceceenrencsnerntatninscrnaninccsenntated

Gammon v. GC Services Limited Partnership,

pe fe 10

Gonzales v. Arrow Financial Services, LLC,

GBD FD 1665 (Othe Clr. BRAT) .nncccecccccesccecceseccscccccssccssecees

Grden v. Leikin Ingber & Winters PC,

es ee a rerrrctcnneccnennstctnnrernncntmnseeneennts

Jerman v. Carlisle, McNellie, Rini, Kramer &

Ulrich LPA,

ERE ee EE 2,12

-jii-

Jeter v. Credit Bureau, Inc.,

760 F.2d 1168 (11th Cir. 1985) .00..... ccc eeeeeenees 9,10

LeBlanc v. Unifund CCR Partners,

601 F.3d 1185 (11th Cir. 2010)... eee 10

Peters v. General Service Bureau, Inc.,

og gL 10

Pollard v. Law Office of Mandy L. Spaulding,

766 F.2d GB (lat Cir. 2014)................0000..ccccccecceeeesss0 9,10

Smith v. Transworld Systems, Inc.,

ee I BI cccccrnicsencsicttariticieniitiniantintannen 10

Taylor v. Perrin, Landry, deLaunay & Durand,

Se II, CIE cnnierscisntisinncntinnsinnitnennssoneteinl 10

United States v. National Financial Services,

Inc.,

I i tec 10

United States v. Wells,

ET ae ee nea REED eR 5

United States v. Williams,

EE nee eee 8

Warren v. Sessoms & Rogers P.A.,

eT 6

Wilson v. Quadramed Corp.,

eee: 9

Statutes

EEE Ne See ae oe eee NE 10

I hn cierincnciahirceeshneeeinsitetiiiuaniedel passim

ee 3,4

es Oe SN eisecsesiniiciessesicninniiceiiihdenetaiiecii 3,4

Rules

Seah Hs. Cali ieciisbncinseteinieinenitnsionpetencnenisansaianieiciicininemeiniasinameniii 9

Legislative Materials

Be A i EE caniniierciresitanienicninniennienseinemnnigiiaienninnen 12

Other authorities

Karl Boedecker & Laurie Lucas, Consumer

Behavior and the Regulation of Consumer

Financial Services, Economics, Law, and

International Business, Paper 2 (2009)............

Jeffrey Dinwoodie, /gnorance Is Not Bliss:

Financial Illiteracy, the Mortgage Market

Collapse, and the Global Economic Crisis, 18

U. Miami Bus. L. Rev. 181 (2010) .....................

Government Accountability Office, Credit Cards:

Increased Complexity in Rates and Fees

Heightens Need for More Effective

Disclosure to Consumers, GAO-06-929 (2006)

George Lowenstein, Cass Sunstein & Russell

Golman, Disclosure: Psychology Changes

Everything, Annual Rev. of Econ. (Harvard

Pub. Law Working Paper No. 13-30 Aug. 18,

Annamaria Lusardi & Olivia Mitchell, Financial

Literacy and Retirement Preparedness:

Evidence and Implications for Financial

Education, 42 Bus. Econ. 35 (Jan. 2007)..........

-V-

Annamaria Lusardi & Peter Tufano, Debt

Literacy, Financial Experiences, and

Overindebtedness, Nat’] Bureau of Econ.

I 11, 12

Alan White & Cathy Lesser Mansfield, Literacy

and Contract, 13 Stan. L. & Pol’y Rev. 233

-]-

INTRODUCTION AND SUMMARY OF ARGUMENT

This brief, by three consumer-advocacy groups, ad-

dresses the second question presented: whether private

debt collectors enlisted by Ohio’s Attorney General as

“collections special counsel” violated the Fair Debt Col-

lection Practices Act by sending collection letters to Ohio

consumers on Attorney General letterhead.’

If the Court reaches this question, it should decline

the petitioners’ invitation to create an extratextual “ma-

teriality” requirement. That issue is not implicated here:

The letters constituted per se violations of two specific

FDCPA prohibitions. Congress expressly concluded that

this conduct “is a violation” of the FDCPA. 15 U.S.C.

§ 1692e. The Court therefore need not address whether

materiality might be required in a different, hypothetical

case.

The Court should also decline to entertain the peti-

tioners’ proposal to adopt an “average consumer” stand-

ard—an argument neither presented nor passed on

below, nor even mentioned in the petition for certiorari.

The petitioners give no content to their proposed stand-

ard, which has not been adopted by any court. Over the

last three decades, the lower courts have consistently

employed a “least-sophisticated consumer” standard in

FDCPA cases. There is no reason for this Court to de-

part from that settled consensus now. Quite the contra-

ry: Given the empirical evidence showing low financial-

literacy levels among U.S. consumers, ensuring the

continued use of the least-sophisticated-consumer stand-

ard is essential to vindicating the Act’s purposes.

‘ All parties consent to this brief, and no party’s counsel au-

thored it in whole or part. Apart from amici, no person contributed

money to fund its preparation or submission.

-2-

INTEREST OF AMICI CURIAE

National Consumer Law Center (NCLC) is a non-

profit research and advocacy organization focusing on

the legal needs of consumers—especially low-income and

elderly consumers. For over 45 years, NCLC has been

the consumer-law resource center to which state and

federal consumer-protection officials, advocates, public

policy makers, reporters, and community groups have

turned for legal answers, policy analysis, and technical

and legal support. NCLC is recognized nationally as an

expert in fair-debt-collection issues and is the author of

Fair Debt Collection (8th ed. 2014), a comprehensive

treatise on which this Court has relied. See Jerman v.

Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559

U.S. 578, 591 n.12 (2010).

National Association of Consumer Advocates

(NACA) is a nonprofit corporation whose members are

lawyers, law professors, and students whose practice or

area of study involves consumer protection. NACA’s

mission is to promote justice for consumers by maintain-

ing a forum for information sharing among consumer

advocates and to serve as a voice for its members and

consumers in the struggle to curb unfair and oppressive

business practices. Compliance with the FDCPA has

been a continuing focus of NACA since its inception.

Public Good Law Center is a public-interest organ-

ization dedicated to the proposition that all are equal

before the law. Through amicus participation in cases of

particular significance for consumer protection and civil

rights, Public Good seeks to ensure that the law remains

available to everyone. Public Good has been particularly

involved in cases involving unfair debt-collection practic-

es, including instances of deceptive use of the trappings

of government agencies.

-3-

STATEMENT

Respondents Pamela Gillie and Hazel Meadows re-

ceived similar debt-collection letters, which bore the

State of Ohio’s seal and represented that they were from

the Office of the Ohio Attorney General. They were both

“alarmed” by these letters; Meadows in particular was

“seared = that the Ohio Attorney General might charge

[her] with a crime for not paying what he said [she]

owed.” JA 43-45, 139. But the letters had actually been

sent by special counsel—private lawyers that the State

of Ohio enlists to collect debts. See Pet. App. 22a—26a.

Gillie and Meadows brought a putative class action

against the special counsel, alleging that their use of

Attorney General letterhead violated specific prohibi-

tions set forth in section 1692e of the FDCPA. In par-

ticular, they alleged that the letters violated the Act’s

prohibitions on “[tJhe 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 United States or any

State, or which creates a false impression as to its

source, authorization, or approval,” 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,” id. § 1692e(14).

Holding that they were not “debt collectors” under

the FDCPA, the district court granted special counsel’s

motion for summary judgment. In the alternative, the

court concluded that the letters did not violate section

1692e because “the least sophisticated consumer would

not be materially misled.” Pet. App. 96a.

The Sixth Circuit reversed on both grounds. With

respect to liability under section 1692e, the Sixth Circuit

(like the district court) asked whether “the least sophis-

ticated consumer” would be confused by the letters. Pet.

-4-

App. 48a. Noting that “[t]he use of the letterhead has no

apparent purpose beyond misleading a consumer into

believing it is the Attorney General who is collecting on

the account,” the court held that “a jury could reasonably

find that special counsel’s use of the letterhead is confus-

ing; and therefore a violation of § 1692e.” Pet. App. 46a,

54a. The Sixth Circuit remanded the case for a jury trial.

ARGUMENT

I. Because the petitioners committed per se

violations of the FDCPA, this Court need not

address whether materiality may be required

under different circumstances.

The respondents allege that special counsel’s use of

Attorney General letterhead violated two provisions of

the FDCPA: section 1692e(9)’s prohibition against send-

ing a communication that “simulates a document

issued” by “any State” or “creates a false impression as

to its source,” and section 1692e(14)’s requirement that a

communication use only “the true name of the debt col-

lector’s business.” There is enough evidence in the rec-

ord for a jury to agree. As the Sixth Circuit observed,

“({t]here is no compelling reason for special counsel to use

the [Attorney General] letterhead, other than to misrep-

resent their authority and place pressure on those indi-

viduals receiving the letters.” Pet. App. 45a. And the

petitioners themselves have all but conceded that the

letters violate both subsections’ plain terms. See Resp.

Br. 40-47. That should be the end of the analysis: Under

the FDCPA, a violation of either subsection constitutes

“a violation of [section 1692e].” 15 U.S.C. § 1692e.

Eschewing this straightforward analysis, the peti-

tioners ask the Court to write into the statute an addi-

tional requirement that is nowhere to be found in the

text. To establish a section 1692e violation, they contend,

it is not enough for plaintiffs to prove that the defendant

5-

engaged in conduct that Congress said “is a violation of”

the statute. /d. They must also prove that the communi-

cations were “materially misleading.” Pet. Br. 39; see

also id. at 43-44. The petitioners derive this asserted

materiality requirement from section 1692e’s general

catch-all provision: that “{a] debt collector may not use

any false, deceptive, or misleading representation or

means in connection with the collection of any debt.” 15

U.S.C. § 1692e. On their reading, the “false, deceptive, or

misleading” language incorporates a background princi-

ple of materiality that extends to cover other provisions

beyond the catch-all, including those that Congress

deemed per se violations of the statute. Pet. Br. 39, 43.

This Court should reject that reading. For starters,

it is doubtful that Congress intended to silently import

into the FDCPA any common-law concept of materiality,

even with respect to the catch-all provision. As this

Court has cautioned, when a statute does not “so much

as mention materiality’—as is the case with the

FDCPA—“a natural reading of the full text” suggests

that “materiality would not be an element.” United

States v. Wells, 519 U.S. 482, 490 (1997). Absent clear

evidence to the contrary, this Court should refrain from

injecting an extratextual materiality requirement into

the statute. See also Resp. Br. 50-51.

In any event, whether Congress intended to cabin

the general catch-all provision by an unexpressed mate-

riality requirement is not at issue here. The respondents

allege that special counsel violated the law’s specific

prohibitions set forth in subsections (9) and (14)—not the

catch-all provision. And Congress expressly concluded

that any conduct described in those subsections “is a

violation of this section.” 15 U.S.C. § 1692e. Congress did

not mention materiality in either subsection, directly or

indirectly, and the petitioners do not contend that it did.

4.

Instead, they make an appeal to the congressional

policies behind the Act, arguing (at 43) that “[a) materi-

ality element furthers the Act’s purposes” by protecting

“conscientious debt collectors” from liability. But, by

spelling out specific conduct as per se unlawful, Congress

determined that this conduct—including the conduct

specified in subsections (9) and (14)—is necessarily

harmful to consumers. Put differently, debt collectors

who engage in such practices are, in Congress’s judg-

ment, inherently not “conscientious.”

The question here, then, is whether the allegedly un-

lawful conduct matches that proscribed by subsection (9)

or (14). If so, the petitioners have violated the FDCPA.

That is true irrespective of whether the Act’s catch-all

language is limited by a materiality requirement. So this

Court need not—and therefore should not—decide the

hypothetical question whether materiality would be

required in a different case. It should instead hold that a

per se violation is what Congress said it is: “a violation of

this section.” 15 U.S.C. § 1692e; see Warren v. Sessoms

& Rogers P.A., 676 F.3d 365, 374 (4th Cir. 2012)

(“(W]hether a materiality requirement attaches to other

violations of § 1692e has no impact on [the plaintiffs’]

allegations that the defendants violated [a specific sub-

section of § 1692e].”), abrogated on other grounds by

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016).

Contrary to the petitioners’ claim, a plain-text read-

ing would not allow the FDCPA to reach “any technical

falsehood.” Pet. Br. 44. Unlike the petitioners’ proposed

“materiality” requirement, the Act already contains an

express limitation on liability, demanding that any repre-

sentation be made “in connection with the collection of

any debt.” 15 U.S.C. § 1692e. Courts have held that this

language restricts liability to those communications that

have the “animating purpose” of “induc[ing] payment by

the debtor” or that “aim[] to make a [debt-collection]

7.

attempt more likely to succeed.” Grden v. Leikin Ingber

& Winters PC, 643 F.3d 169, 173 (6th Cir. 2011). Given

this language—and the specific language that Congress

used in crafting the per se violations—there is simply no

need for this Court, in this case, to judicially impose an

extratextual limitation for policy reasons.

II. This Court should not entertain the petitioners’

proposal to adopt a new “average consumer” test.

A. The petitioners not only seek the creation of a

new materiality requirement, they also ask this Court to

adopt a new liability standard for deceptive conduct

under the Act—their so-called “average consumer” test.

Pet. Br. 41. The Court should decline the request. The

petitioners appear to have invented that test only after

this Court granted certiorari. They did not mention it in

their petition or reply brief, nor did they discuss it in

their briefing below. And neither the panel opinion nor

the dissent says anything about such a test.

Indeed, in seeking certiorari, the petitioners urged

this Court to resolve an asserted “circuit split” that had

(in their words) created “conflicting tests for assessing

whether debtors would find a statement misleading: the

‘least sophisticated consumer’ test and the ‘unsophisti-

cated consumer’ test.” Pet. for Cert. 24; Reply 10. To

induce this Court to grant review, the petitioners sig-

naled that they were prepared to advocate for the second

test, arguing that, under that test, the letters are not

misleading. Pet. for Cert. 28.

Now that this Court has granted certiorari, the peti-

tioners instead purport to advance a third test: “one

asking whether an average consumer” in the relevant

market would be misled. Pet. Br. 41. But the only case

the petitioners cite to support their test does no such

thing. Specifically, that case says that the standard fo-

cuses on “the average consumer in the lowest quartile

-8-

(or some other substantial bottom fraction) of consumer

competence.” Evory v. RJM Acquisitions Funding

L.L.C., 505 F.3d 769, 774 (7th Cir. 2007) (emphasis add-

ed). The standard, in other words, focuses on “consumers

of below-average sophistication.” Clomon v. Jackson, 988

F.2d 1314, 1319 (2d Cir. 1993). No circuit has held other-

wise.

The petitioners do not flesh out the contours of their

proposed test, but under any plausible iteration it should

be rejected here. On the one hand, if the “average con-

sumer” test sets a meaningfully higher bar than the tests

argued below, the petitioners have waived the argument.

‘(This is a court of final review and not first view.”

Adarand Constructors, Inc. v. Mineta, 534 U.S. 108, 110

(2001) (per curiam). It “does not ordinarily decide ques-

tions that were not passed on below.” City & Cnty. of

S.F v. Sheehan, 135 S. Ct. 1765, 1773 (2015); see also

United States v. Williams, 504 U.S. 36, 41 (1992). Doing

so in this case would be especially inappropriate because

the precise liability standard is irrelevant: The respond-

ents are not relying on the catch-all provision. And even

if determining whether a letter “creates a false impres-

sion as to its source” (under subsection (9)) were to re-

quire the application of a liability standard, determining

whether the debt collector used a “name other than [its]

true name” (under subsection (14)) does not.

If, on the other hand, the petitioners’ “average con-

sumer” test is not meaningfully different from the stand-

ards argued below, then they are simply playing a “se-

mantics game.” Pet. for Cert. 27. Although they ask this

Court to “reject” the least-sophisticated-consumer

standard, complaining that it “misleads” and “lacks any

historical pedigree,” they do not identify what exactly is

wrong with how the standard is applied by lower courts.

Pet. Br. 42. To the contrary, they concede that the

standard “reject{s] liability ‘for bizarre or idiosyncratic

9.

interpretations.” Jd. (quoting Wilson v. Quadramed

Corp., 225 F.3d 350, 354-55 (3d Cir. 2000)). And even the

courts that have adopted the unsophisticated-consumer

test (rather than the least-sophisticated-consumer test)

have acknowledged that the difference between the two

formulations is merely one of “[lJabels,” Pollard v. Law

Office of Mandy L. Spaulding, 766 F.3d 98, 103 n.4 (1st

Cir. 2014), with no “practical difference in application,”

Avila v. Rubin, 84 F.3d 222, 227 (7th Cir. 1996); see also

Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061

n.2 (9th Cir. 2011) (noting that the two tests differ “only

in semantics”).

Once the semantics are set aside, the petitioners’ po-

sition is exposed as nothing more than a factbound, case-

specific plea for this Court to address an alleged “misap-

plication of a properly stated rule of law.” Sup. Ct. R. 10.

Had that been made clear in the petition, this Court may

well have denied review on the second question. But as it

is, the Court should make clear (if it reaches the issue)

that liability under the FDCPA is assessed from the

standpoint of the “unsophisticated” or “least sophisticat-

ed” consumer—not the average consumer.

B. For more than 30 years, the lower courts have

consistently held that the relevant standard under the

FDCPA takes the perspective of an unsophisticated or

least-sophisticated consumer. See Jeter v. Credit Bu-

reau, Inc., 760 F.2d 1168 (11th Cir. 1985). This standard

“protects all consumers, the gullible as well as the

shrewd _ the ignorant, the unthinking and the credu-

lous.” Clark v. Capital Credit & Collection Servs., Inc.,

460 F.3d 1162, 1171 (9th Cir. 2006). It “does not rely on

assumptions about the ‘average’ or ‘normal’ consumer.”

Clomon, 988 F.2d at 1319.

-10-

Today, that is the rule in every circuit.’ And for good

reason: When Congress enacted the FDCPA, it did so

because it found that “[e]xisting laws and procedures”

were “inadequate to protect consumers.” 15 U.S.C.

§ 1692(b). As the Eleventh Circuit long ago explained,

“{iJt 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 con-

sumers than under the existing ‘inadequate’ legislation.”

Jeter, 760 F.2d at 1173-74 (emphasis in original). Despite

multiple amendments to the FDCPA over the last few

decades, Congress has never acted to disturb this bed-

rock rule. This Court should not do so either.

The prevailing standard has not only proved worka-

ble over time but also reflects contemporary realities.

Nearly half of American consumers read at no more than

an eighth-grade level. Gov’t Accountability Office, Credit

Cards: Increased Complexity in Rates and Fees Height-

ens Need for More Effective Disclosure to Consumers,

* Most circuits use the “least sophisticated consumer” lan-

guage. See, e.g., Clomon, 988 F.2d at 1318-19 (2d Cir.); Campuzano-

Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 298 (3d Cir.

2008); United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 136-37

(4th Cir. 1996); Taylor v. Perrin, Landry, deLaunay & Durand, 103

F.3d 1232, 1236 (5th Cir. 1997); Smith v. Transworld Sys., Inc., 953

F.2d 1025, 1028 (6th Cir. 1992); Clark, 460 F.3d at 1171 (9th Cir.);

LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193 (11th Cir.

2010). The First, Seventh, and Eighth Circuits use the “unsophisti-

cated consumer” language. Pollard, 766 F 3d at 103-04 (lst Cir.);

Gammon v. GC Servs. Lid. P’ship, 27 F.3d 1254, 1257 (7th Cir.

1994); Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1055 (8th

Cir. 2002). However labeled, these standards are “designed to

protect consumers of below average sophistication or intelligence,”

while still “contain{ing] an objective element of reasonableness.”

Peters, 277 F.3d 1051 at 1055.

-1}-

GAO-06-929, at 38 (2006); see also Lowenstein, Sunstein

& Golman, Disclosure: Psychology Changes Everything,

Annual Rev. of Econ. 21-29 (Harvard Pub. Law Working

Paper No. 13-30 Aug. 18, 2013). And “research measur-

ing the literacy of the U.S. population demonstrates that

even consumers who might take the time and trouble to

‘read’ contemporary consumer contract documents are

unlikely to understand them.” White & Mansfield, Liter-

acy and Contract, 13 Stan. L. & Pol’y Rev. 233, 234

(2002). Indeed, some studies have found that “about half

of the American adult population could not be expected

to consistently extract information from lists, forms,

tables, and similar documents __[that] are less complex

than many modern consumer contract forms.” /d. at 237.

These basic deficiencies are magnified in the con-

sumer-finance context, because “(t]he evidence indicates

that financial literacy levels among U.S. consumers are

low.” Boedecker & Lucas, Consumer Behavior and the

Regulation of Consumer Financial Services, Economics,

Law, and International Business, Paper 2 (2009),

http://repository.usfca.edu/elib/2/, at 20.° A National

Bureau of Economic Research study, for example, found

“strikingly low levels of debt literacy across the U.S.

population”; only one-third of respondents could answer

basic questions measuring financial knowledge related to

debt. Lusardi & Tufano, Debt Literacy, Financial Expe-

riences, and Overindebtedness, Nat’] Bureau of Econ.

* See also Dinwoodie, [gnorance Is Not Bliss: Financial IIlit-

eracy, the Mortgage Market Collapse, and the Global Economic

Crisis, 18 U. Miami Bus. L. Rev. 181, 184-85 (2010); Lusardi &

Mitchell, Financial Literacy and Retirement Preparedness: Evi-

dence and Implications for Financial Education, 42 Bus. Econ. 35,

36-37 (Jan. 2007) (“{A}ctual financial knowledge was sorely deficient

for both high school students and working-age adults.”).

-12-

Res. (March 2009), http:/Awww.nber.org/papers/w14808,

at 1, 5-8. Yet many groups, “like the elderly, think they

know considerably more than they actually do,” which

“may help explain the incidence of financial frauds per-

petuated against [them).” /d. at 24. The evidence, the

authors concluded, “provides some reason for concern in

an economy in which consumers routinely borrow and

save using debt-like instruments.” /d. at 8.

In light of this empirical evidence, the Court should

refrain from disturbing the settled consensus on the

least-sophisticated-consumer standard. When it enacted

the FDCPA, Congress was aware that private debt

collectors—who are typically paid on commission—have

every incentive to exploit consumers’ deficiencies by

“press[ing] the boundaries of the Act’s prohibitions on

collection techniques.” Jerman, 559 U.S. at 602; see also

S. Rep. No. 95-382, at 2. Departing from the standard

that has prevailed for the last 30 years, as the petitioners

propose, would only encourage debt collectors to press

those boundaries further still—the very opposite of what

Congress intended.

-13-

CONCLUSION

The Court should affirm the decision below.

March 2, 2016

Respectfully submitted,

DEEPAK GUPTA

Counsel of Record

JONATHAN E. TAYLOR

NEIL K. SAWHNEY

GUPTA WESSLER PLLC

1735 20th Street, NW

Washington, DC 20009

(202) 888-1741

deepak@guptawessler.com

RICHARD J. RUBIN

1300 Canyon Road

Santa Fe, NM 87501

(505) 983-4418

Counsel for Amici Curiae