MARK J. SHERIFF, ET AL., PETITIONERS
PAMELA GILLIE, ET AL
March 29, 2016
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
L.Ed.2d 626] The Fair Debt Collection Practices Act (FDCPA or
Act) aims to eliminate " abusive debt collection
practices," 15 U.S.C. § 1692(a)-(d), by, as
relevant [194 L.Ed.2d 627] here, barring " false,
deceptive, or misleading representation[s] . . . in
connection with the collection of any debt," §
1692e. Governing " debt collectors," the Act
excludes from the definition of that term " any officer
. . . of . . . any State to the extent that collecting . . .
any debt is in the performance of his official duties."
Ohio law, overdue debts owed to state-owned agencies and
instrumentalities are certified to the State's Attorney
General for collection or disposition. Carrying out this
responsibility, the Attorney General appoints, as independent
contractors, private attorneys, naming them " special
counsel" to act on the Attorney General's behalf.
The Attorney General requires special counsel to use the
Attorney General's letterhead in communicating with
debtors. Among the special counsel appointed by the Attorney
General in 2012 were petitioners Mark Sheriff and Eric Jones.
Consistent with the Attorney General's direction,
Sheriff's law firm and Jones sent debt collection letters
on the Attorney General's letterhead to respondents Hazel
Meadows and Pamela Gillie, respectively. The signature block
of each letter contained the name and address of the
signatory as well as the designation " special" or
" outside" counsel to the State Attorney General.
Each letter also identified the sender as a debt collector
seeking payment for debts to a state institution. Meadows and
Gillie filed a putative class action in Federal District
Court, alleging that defendants had, by using the Attorney
General's letterhead, employed deceptive and misleading
means to attempt to collect consumer debts, in violation of
the FDCPA. The Ohio Attorney General intervened, seeking a
declaratory judgment that special counsel's use of the
Attorney General's letterhead is neither false nor
misleading, and urging that special counsel be deemed
officers of the State exempted from the Act. The District
Court granted summary judgment for defendants, holding that
special counsel are " officers" of the State and,
in any event, their use of the Attorney General's
letterhead is not false or misleading. The Sixth Circuit
vacated that judgment, concluding that special counsel, as
independent contractors, are not entitled to the FDCPA's
state-officer exemption. The appeals court remanded for trial
the question whether use of the Attorney General's
letterhead would mislead a debtor into believing that it is
the Attorney General who is collecting the debt.
Assuming, arguendo, that special counsel do not
rank as " state officers" within the meaning of
the Act, petitioners' use of the Attorney General's
letterhead, nevertheless, does not offend § 1692e.
counsel's use of the Attorney General's letterhead
at the Attorney General's direction does not offend
§ 1692e's general prohibition against " false
. . . or misleading representation[s]." The letterhead
identifies the principal--Ohio's Attorney General--and
the signature block names the agent--a private lawyer hired
as outside counsel to the Attorney General. The character
of the relationship between special counsel and the
Attorney General bolsters the Court's determination.
Special counsel work closely with attorneys in the Attorney
General's Office, providing legal services on the
Attorney General's behalf in furtherance of the
Attorney General's debt collection responsibilities
[194 L.Ed.2d 628] for the State. A debtor's impression
that a letter from special counsel is a letter from the
Attorney General's Office is thus scarcely inaccurate.
counsel's use of the Attorney General's letterhead
is also consistent with § 1692e(9)'s specific
prohibition against " falsely represent[ing]"
that a communication is " authorized, issued, or
approved" by a State. Because the Attorney General
authorized--indeed required--special counsel to use his
letterhead, special counsel create no false impression in
doing just that. Nor did special counsel use an untrue name
in their letters, in violation of § 1692e(14). Special
counsel do not employ a false name when they use the
Attorney General's letterhead at his instruction, for
special counsel act as the Attorney General's agents in
debt-related matters. The Court sees no reason,
furthermore, to construe the FDCPA in a manner that would
interfere with the Attorney General's chosen method of
fulfilling his statutory obligation to collect the
Sixth Circuit raises the specter of consumer confusion and
the risk of intimidation from special counsel's use of
the Attorney General's letterhead, but its exposition
is unconvincing. Pp. 6-11.
785 F.3d 1091, reversed and remanded.
Murphy argued the cause for petitioners.
Joshua Rosenkranz argued the cause for respondents.
E. Harrington argued the cause for the United States, as
law authorizes the State's Attorney General to retain, as
independent contractors, " special counsel" to act
on the Attorney General's behalf in collecting certain
debts owed to Ohio or an instrumentality of the State. Ohio
Rev. Code Ann. § 109.08 (Lexis 2014). As required by the
Attorney General, special counsel use the Attorney
General's letterhead in communicating with debtors. App.
93. The Fair Debt Collection Practices Act, 91 Stat. 874, 15
U.S.C. § 1692 et seq. (FDCPA or Act), aims to
eliminate " abusive debt collection practices."
§ 1692(a)-(d). To that end, the Act imposes various
procedural and substantive obligations on debt collectors.
See, e.g., § 1692d (prohibiting harassing,
oppressive, or abusive conduct); § 1692e (barring "
false, deceptive, or misleading representation[s] . . . in
connection with the collection of any debt" ); §
1692g(a) (setting out requirements for the contents of
initial notices to consumers). The FDCPA excludes from the
definition of " debt collector" " any officer
or employee of the United States or any State to the extent
that collecting . . . any debt is in the performance of his
official duties." § 1692a(6)(C).
case involves litigation between debtors to Ohio institutions
and special counsel who sought to collect money owed to the
institutions. The petition raises two questions: (1) Do
special counsel appointed by Ohio's Attorney General
qualify as " state officers" exempt from the
FDCPA's governance? (2) Is special counsel's use of
the Attorney General's letterhead a false or misleading
representation proscribed by § 1692e?
Assuming, arguendo, that special [194 L.Ed.2d 629]
counsel do not rank as " state officers," we hold,
nevertheless, that their use of the Attorney General's
letterhead does not offend § 1692e. Not fairly described
as " false" or " misleading," use of the
letterhead accurately conveys that special counsel, in
seeking to collect debts owed to ...