Pamela Gillie v. Law Office of Eric A. Jones

thаt defendants’ that possibility achieving objective could find “the actions quite minimal, crime, ... consciously impair meant is a and jury were so wage war.” found. I capacity the nation’s would affirm the convictions and I therefore respectfully dissent. defendant Testimony speci- as to each fied their intent: “I the criminal

Walli: wanted all activi-

ties to stop,” and

“I the rule of hoped to institute law” you hope did

answering question “to Y-12”; operations at interfere with the

n that weap- and Walli had stated nuclear unlawful; ons were GILLIE; Meadows, Pamela Hazel Boertje-Obed: went to ... oppose “we Plaintiffs-Appellants, directly ... weapons [tjhrough nuclear action”; direct ... begin JONES,

Rice: “we were able to the LAW A. OFFICE OF ERIC disarmament”; LLC; Jones; Wiles, Boyle, work of Eric A. Bringardner Co., LPA; Burkholder & interfere, Their intent and to obstruct Jeffrey Sheriff; Sheriff, Mark Sarah however however quixotic, couched and Defendants-Appellees, juror was something thus that rational could find existed. General, Ohio Intervenor- in- clearly Defendants stated their Appellee. any way tent impede, was to could, production weapons, of nuclear No. 14-3836. they regarded illegal,

which undesirable of Appeals, United States Court counterproductive, majority, Sixth Circuit. page willing at to be appears concede an “intent” to shut down the facili- Argued: March 2015. ty degree for a week. The existence 8, May Decided and Filed: presented of intent to obstruct was to the jury, and I override its judg- would not

ment matter of declaring as a law

no jury rational could find the intent

obstruct, simply because obstruction general

here disrupting opera- was

tion of facility, destroying rather than specific item.

Finally, I agree majority, with 1088-89,

pages creating publicity bad government

for the not chargeable

“obstruction” or under “interference” However,

Sabotage invading Act. because facility production involved in the of nu-

clear weapons, stopping the intent of activities,”

“all the criminal even if the

OPINION CLAY, Judge. Circuit Plaintiffs Pamela Gillie and Hazel Mead- appeal ows the district court order enter- in ing summary judgment favor of Defen- Jones; A. dants Eric the Law Office of (“Jones Jones, Office”); Eric A. LLC Law Sheriff; Sheriff; Wiles, Mark J. Sarah and Co., Boyle, Bringardner Burkholder & (“Wiles Firm”). LPA Law Plaintiffs brought action this under the Fair Debt (“FDCPA”), Collection Practices Act 1692 et seq., alleging that Defen- U.S.C. deceptive, dants utilized a misleading, or representation false or means in attempt- ing to collect consumer debts Plaintiffs Nobile, E. ARGUED: James Nobile & operated by owed to entities owned and Co., L.P.A., Hilliard, Ohio, Thompson for the State of Ohio. The Conomy, P. Appellants. Christopher Of- Defendants, on behalf intervened assert- General, fice of the Ohio Colum- ing alleged misrepresentation— bus, Ohio, Boyd for Intervenor-Appellee. consisting sending debt-collection no- Gentry, Boyd Gentry, W. Law Office Of W. tices on the General’s letter- LLC, Beavercreek, Ohio, Appel- for Jones head —was not a at all misrepresentation Close, Burk- lees. Michael L. Isaac Wiles was, fact, in and authorized the Attor- Teetor, Columbus, Ohio, Ap- holder & ney General. The district court found that pellees BRIEF: Wiles and Sheriff. ON exempt Defendants were from FDCPA Nobile, Willison, E. James Eric E. Nobile Ohio; coverage as “officers” of the State of Co., LPA, Hilliard, Ohio, for Thompson & that, event, and their use of the Appellants'. Christopher Conomy, P. Attorney General’s letterhead did not vio- Sherry At- Phillips, M. Office of the Ohio late the FDCPA. General, Columbus, Ohio, torney for Inter- venor-Appellee. Boyd Gentry, Law W. below, For the reasons set ‍‌​​​​‌‌‌‌​​​‌​​‌‌‌​‌​​‌​​‌‌​​​‌‌‌​‌‌​‌​‌‌​​​​‌​​‍forth we Boyd LLC, Gentry, Office Of W. Beaver- summary judgment favor VACATE creek, Ohio, Appellees. for Jones Michael of Defendants and REMAND this case to Close, Cook, L. Dale D. Burk- Isaac Wiles proceedings court for further district Teetor, Columbus, Ohio, Ap- & holder opinion. consistent with this pellees Wiles and Sheriff. BACKGROUND CLAY, GILMAN,

Before: SUTTON, Judges. Circuit 20, 1977, enact- September Congress On Act, Practices

ed the Fair Debt Collection (codified 95-109, at 15 CLAY, J., Pub.L. 91 Stat. 874 of the opinion delivered seq.), U.S.C. 1692 et J., Title GILMAN, joined. VIII court in which Act. Abusive SUTTON, Credit Protection (pp.1110-17), J. delivered Consumer time, at the practices debt collection were separate dissenting opinion. “any regularly ... who person fined as a “serious national today,1 remain many collect, directly the lives attempts that “touches problem” collects 95-382, at 2 S.Rep. No. Americans.” or asserted indirectly, debts owed or due (1977), 1977 U.S.C.C.A.N. 1692a(6). or due another.” to be owed target all sought to specifically FDCPA provi- of this overwhelming breadth debt col- “independent party” “third intent to given Congress’s fitting, sion is cited as “the lectors,” the Senate whom prac- all abusive debt collection extinguish egregious prac- collection prime source of practices consisted of tices. One of these was The Senate’s contention tices.” Id. “misrepresent- collectors independent debt have little debt collectors were, fact, they “government ing” fairly, given “are to act incentive 95-382, (1977), S.Rep. No. at 8 official[s].” with the no future contact likely to have concern, This 1977 U.S.C.C.A.N. 1695. are unconcerned with consumer and often qualify the issue of who would along with Id. at 2. opinion of them.” the consumer’s exemption, among are for the state sector Moreover, independent collector’s com- opinion. the issues we address this many to collect as missions-based incentive because it possible problematic, debts as Special and the Ohio Attor- Counsel collec- likelihood of abusive increases the ney General concerns, practices. tion Id. The same however, for “in house present are not I, Chapter of the Ohio Revised Title collectors,” to be excluded from who were governs the collection of debts3 owed Code definition of the term the FDCPA’s broad include to the State of Ohio. These debts (internal quota- collector.” Id. at 3 “debt taxes, governmen- fees on unpaid overdue omitted). officials, tion “Government marks fines, services, tal and administrative sheriffs,” of- marshals and were such as arising consumer debts from trans- well as example the lone by fered the Senate as entities actions with various State-owned working public in the “in house” collectors from a universi- (e.g., overdue tuition State statutory language at 3. The sector. Id. ty unpaid or medical bills from State ex- ultimately adopted exemption’ for this hospital). This case is about consumer collector, of debt cluded from the definition by Debts that remain uncollected debts. employee any of ... State “any officer or entity the debt is owed the State to whom collecting attempting or to the extent that to the Office of eventually “certified” any performance to collect debt is in the (“OAG”). Attorney Ohio the Ohio General 15 U.S.C. his official duties.” 131.02(A). Attorney The Gen- Rev.Code 1692a(6)(C). language remains the This collecting responsible eral is thereafter The term only exemption for state actors. disposing of it other means the debt collector,” from which these “debt securing judgment, selling or trans- ultimately (e.g., was de- exempted, actors are Release, FTC, Attorney com/opinion/economic-mtelligence/2014/03/ New York 1.See Press 24/the-consumer-protection-bureau-should- Collec- General Crack Down on Abusive Debt (Feb. 2015), end-abusive-debt-collection. https://www. available at tors ftc.gov/news-events/press-releases/2015/02/ftc- report committee that was new-york-attorney-general-crackdown- 2. This is the final abusive-debt-collectors; legislation its presented with the before enact- & El- Rebecca Thiess Taverna, ment. Cleaning Up Debt Collection: len necessary to end abusive debt New rules are (Mar. generally referred to as practices, U.S. News 3. These debts are collection EDT), throughout the Ohio Revised Code. http://www.usnews. "claims” 10:45 a.m. debt, (“No ferring causing PagelD the claim the # 634 services rendered canceled). (F). 131.02(C), §§ Special the debt to be Counsel after the date of Termi- nation shall be authorized or payable with- Attorney personally General is not out an agreement additional from the At- required to collect the debts certified to General.”)). torney Second, “Special the OAG. Section 109.08 of the Ohio Re- engaged by Counsel shall be provides vised Code solely General on an contrac- “special enlist counsel” to (“No tor basis.” at PagelD # 635 (Id. collect on the debts Special Counsel ... shall regarded be The statute reads in full: behalf. in the employment, of, or as an employee attorney general may appoint spe- General or the State state, represent cial counsel to Clients.”)). Third, appointment “the connection with all claims of whatsoever Special Counsel is in nature and personal nature which are certified to the attor- does not any extend to law firm that the ney general for collection under law Special Counsel is associated with.” (Id. attorney general or which the author- 634). Fourth, PagelD # claims are as- ized to collect. counsel; signed however, all col- paid Such counsel shall be lections must be forwarded and endorsed their services from funds collected to the Attorney General before the approved by them in аn amount counsel is entitled to receive a percentage attorney general. Fifth, of the collections-based fee. attorney general provide The shall to retention agreement requires special coun- special appointed repre- counsel “comply sel to with the same standards of sent the state in connection with claims behavior as in ... set forth the Fair Debt out arising [specific tax debts] Collection Practices Act.” at PagelD (Id. stationery official letterhead of the at- 646). # In provisions, addition to these torney general. special The counsel though not in agreement, special coun- shall use the stationery, letterhead but orally sel have been by directed the Attor- only in connection with the collection of ney General to utilize OAG letterhead in arising such claims out of those taxes. connection with all (including collections Ohio Rev.Code 109.08. debts, though contrary even it is consumer code4). Special counsel appoint- receive their to Ohio’s by submitting ment a response successful 13, 2012, April On a OAG announced Qualifications. to a Request for Once se- “Request Qualifications Special lected, they agree- enter into “retention (“RFQ”). Counsel of Fiscal Year 2013” Attorney ment” with the General that de- (R. 48-11, RFQ, Response Jones Pa- scope engagement. fines the of their 658). gelD RFQ # respons- solicited agreement The retention qualified attorneys contains few es from who wished to provisions that germane perform to this dis- enter into a contract to debt col- First, pute. actions taken special coun- lection on behalf of the state. The rela- only through tionship sel are authorized would be “defined contract” agreеment only “appointment” “only retention for its dura- and the would be- (R. 48-8, Agreement, upon tion. 2013 Retention come effective execution Re- [the] (emphasis 4. "The the letterhead shall use toes.” Ohio Rev.Code 109.08 stationery, only added). but in connection with the arising collection of such claims out of those (Id. incurred. PagelD date on which the debt was Gil- Agreement.” tention 663). thought might lie that it have been related # pregnancy. to her She believed submitted a Mark J. Sheriff Defendant letter was from the General but RFQ May on 2012. response to the inclusion of the other names confused Firm, Sheriff, Law had at Wiles partner her. appointed as a previously been 20, 2012, July worked for On Plaintiff Hazel Mead- Sheriff also counsel. Sarah ows received a debt collection letter from Law Firm at the time Defendant Wiles Law Firm. The of Mark Sheriff. De- Sarah Sheriff with Wiles under the direction letterhead for the “Collec- A. submitted a re- letter used OAG fendant Eric Jones Jones, Enforcement Section” and likewise RFQ May tions sponse to the (R. image an of Ohio’s Great Seal. operated Defendant Jones included who owned 48-4, Ltr., Office, PagelD spe- had likewise served as a Wiles Collection Law 614). read, body # years. Sheriff and the letter previous cial counsel your request, counsel to the Attor- Per this is a Jones became “Sir/Madam: year the current owed for ney upon for fiscal letter with balance agreements they your University of Akron loan that has execution of the retention received, following placed their selection based on been with the Ohio Gener- responses RFQ. you to the al. free to contact me ... should respective their Feel (Id.) It questions.” have further was 24, 2012, Plaintiff Pamela May On Gillie signed by signature Sarah Sheriff and the bankruptcy рroceedings engaged was block noted her association with Wiles received a debt collection letter when she Law Firm and indicated that she was from Jones. The collection letter was “Special Counsel to the General.” letterhead, written on OAG which included (Id.) It was also noted the letter that the image of the both Great Seal sender a debt collector. was Meadows State of Ohio and the was confused the letter and did not large name—Mike DeWine—in font at the asking anyone recall “ever for infor- top page. The letter stated: “Dear (R. 48-3, mation” about her debts. Mead- Sir/Madam, ignore to re- You have chosen 612). Affidavit, PagelD ows # Sarah peated attempts resolving to the refer- averred, however, Sheriff the letter you enced ... medical claim. If cannot phone in to a call response was drafted payment make immediate full call DEN- and that Meadows could not have been Jones, Eric A. ISE HALL at L.L.C.... previously confused because she made .had my arrangements pay make office to payment entering same debt after (R. 48-2, Ltr., this debt.” Jones Collection agreed judgment payment plan into an and 611). # PagelD paragraph The next 6, on March 2008. font, capital the letter continued bold 5, A “THIS IS COMMUNICATION FROM Plaintiffs filed this suit on March (Id.) 2013, signa- alleging A DEBT The that Defendants violated COLLECTOR.” provisions ture block read “Eric A. Jones Outside various of the FDCPA utiliz- Office,” Attorney ing Attorney letterhead. The Counsel General’s OAG successfully moved to payment provided and the return stub General thereafter intervene as Defendant and payments should be made to the Law Of- Counterclaim- (Id. 2013, Jones, September fice of Erie A. at Pa- ant. On the district L.L.C. 611-12). gelD spe- stayed discovery # The notice did not court and ordered briеf- cifically identify original ing creditor or the to determine whether the issues of liability damages presented, should be bifurcated. facts the moving party is enti judgment was ordered on December tled to Bifurcation as a matter of law. Fed. delay costly class-certification R.Civ.P. 56. The court look to “the until the court could process pleadings, depositions, decide answers to inter legal presented: “spe- issues whether rogatories, file, two and admissions on together collectors under the cial counsel” debt with the affidavits” when ruling on the FDCPA and whether the use of letterhead motion. Id. The facts must be viewed in from the Office of the light most favorable to the non-moving special counsel violates the FDCPA. The party and all reasonable inferences shall stay district court also continued the Combs, be afforded to those facts. discovery filing disposi- But, ordered the F.3d at 576-77. a mere “scintilla of sixty days. tive motions within evidence” that against militates the clear weight of the evidence the record does opposing Plaintiffs and Defendants filed a genuine create issue of fact. summary judgment motions for and made Inc., v. Liberty Lobby, Anderson 477 U.S. appropriate responses. 242, 252, 91 L.Ed.2d 202 judgment General also moved for a on the (1986). pleadings, and Plaintiffs moved to dismiss counter-complaint Analysis for failure to a claim. The district granted court Defendants’ motions for I. “Debt Collectors” and the “Officer summary judgment, denied the Employee” Exemption judgment General’s motion for on the prevent FDCPA was enacted to pleadings, denied Plaintiffs’ motion for “abusive debt collection practices” and en- summary judgment, and denied as moot sure that those debt fairly collectors who Plaintiffs’ motion to dismiss for failure engage practice collecting state a claim. The court first held competitively disadvantaged” by “are not special counsel are not “debt collectors” their peers’ malfeasance. 15 U.S.C. meaning within the of the FDCPA because A “any person “debt collector” is Ohio, they are officers of the State of ... regularly attempts who collects or explicitly exempt state officers are from collect debts owed or ... due another” coverage. FDCPA The court then went 1692a(6). profit. Any individual that, on to determine even if coun- qualifying employee” as an “officer or of a fall sel did within the of a “debt definition state is excluded from if this definition collector,” of a use OAG letterhead was not attempting per- to collect debts “in the “false, deceptive misleading” communi- formance his official duties.” § in cation violation of 15 U.S.C. 1692e. 1692a(6)(C). § appeal This followed. by The issue us before is controlled DISCUSSION scope Specifical of the term “officer.”

Standard of Review ly, private we must determine whether appeal attorneys “appointed” “special review novo an from We de counsel” General, granting summary judgment. operat to the order Ohio but Co., 568, contractors, ing independent Combs v. Int’l Ins. 354 F.3d are offi (6th Cir.2004). state, Summary judgment meaning should cers of a within the of the granted genuine be when there exists no FDCPA. think not. The use of the We and, in dispute light “appoint” “hiring” of material fact of the word in reference to do, forcing from a excusing the court decisive. is not contractors a round hole.” Rowland truth, indistinguish- square peg into counsel, Special Colony, Unit II Men’s Advi- independent con- v. Cal. Men’s myriad of from the able Council, 194, 200, agree- 506 U.S. 113 S.Ct. for-profit sory into enter who tractors (1993). 716, But we have or actors 121 L.Ed.2d 656 agencies government with ments peg. The square stuck with a govern- of some not been fulfill the duties help to specific Act a defini- Dictionary provides is a broad reme- The FDCPA ment office. comports present 970 F.2d tion for the occasion statute, Gangwish, v. Frey dial limited, (6th Cir.1992), understanding of the with our common 1516, “officer,” and leads to a result that is exceptions. We find no word clearly defined protection by purpose its consistent with the diluting justification for the term “officer FDCPA. broadly interpreting independent contrac- include employee” to interpre We review de novo the

tors. RL BB statutory language. tation of Ac quisition, Bridgemill LLC v. Commons Dictionary Act A. The LLC, (6th 380, Grp., Dev. 754 F.3d statutory term is left unde When Cir.2014). language When the statute turn Congress, we first to by fined meaning. apply plain is clear must its we Act, which offers definitions Dictionary Hosp. Corp. Emps. v. Serv. Int’l Ashland commonly throughout used that are words Union, 737, Dist. Hobby Lob Congress. Burwell Acts of .2013). Cir — Stores, Inc., -, by U.S. (2014). any person An “officer” “includes au- L.Ed.2d 675 “Offi- words; to perform and we must thorized law the duties of is one of those cer” definition, Dictionary Act the office.” U.S.C. Defendants con- adhere to the easily counsel” fall with- “special indicates otherwise.” tend that “unless the context by operation of the follow- § 1. Both sides insist that our this definition 1 U.S.C. 109.08, authorizing guided by ing extra-statu- Ohio statutes: judgment should be appoint special posit Plaintiffs General tory considerations: debts; 131.02, legislative scope intent as to the counsel to collect as- we infer looking signing responsibili- principles exclusion ty over the collection of debts owed to the sovereign immunity;5 whereas Attor- ar- importance difficulty of State. The with Defendants’ ney General stresses not au- ability guments to deter- is that these statutes do federalism and a state’s fulfill the govern- of its own thorize counsel to duties organization mine the focus is drawn to the qualification ‘unless the con- of office. Our “[T]he ment. job following words: “authorized law” and text indicates otherwise’ has real .consider; govern- indem companies that four factors for the court to 5. Debt collection win pursuant statutory salient); ment contracts to a au- being the most Hess v. nification cf. sovereign im- thorization are not entitled Corp., 513 U.S. Port Auth. Trans-Hudson Counseling munity. Rosario v. Am. Corrective L.Ed.2d 51 n. Servs., Cir.2007); (11th Del 506 F.3d 1039 (1994) ("It mystery heighten would ‍‌​​​​‌‌‌‌​​​‌​​‌‌‌​‌​​‌​​‌‌​​​‌‌‌​‌‌​‌​‌‌​​​​‌​​‍indeed (9th Kennedy, Campo v. 517 F.3d 1070 Cir. legal spread an of evolution were we to Elev counsel, likewise, 2008). Special are enti- not agency Amendment cover over an enth sovereign immunity to because of their tled but contributes to consumes no state revenues independent-contractor status and indemnifi- (internal quotation the State’s wealth.” marks cation of the OAG. See Brotherton v. Cleve- omitted)). land, Cir.1999) (6th (listing consider simply of the office.” We General.6 Section 109.08 “the duties estab- in turn. lishes the framework phrase each under which the At- General, torney within his or her discre- by 1. Authorized Law tion, may delegate the collection of debts third-party to a debt special counsel collector. Authoriza- Although it is true that actually tion to act as an officer of a authorized to collect certain debts as- Attorney requires of the more. an signed to them behalf Such authorization en- General, act, they are not authorized to do so tails actual capability the to not mere- by Attorney law. The General contends ly prospect delegation. of a future bearing “special the title Authority, Authorize and BLACK’S LAW 109.08— provides counsel to collect such Ed.2014) DICTIONARY [hereinafter debts”— argument spe- authorization. But this (to give legаl “BLACK’S”] authorize is “to analysis guided by must be cious. Our authority,” power which means “the dele- statute, parsing the meat and bones of the gated by principal agent”). to an by surveying its skin. simply not Section difficulty determining We find no 109.08, which is broken into four sen- special authority. source of counsel’s tences, primarily governs the conduct of RFQ emphasized appointment that an General, Attorney spe- and not that of special “only counsel would become effec- First, statute authorizes cial counsel. upon tive execution of a Agree- Retention Attorney employ General to or con- ment,” any and that relationship with the by tract with individuals selected the At- exclusively by OAG would be “defined con- torney act special General to counsel for (R. 48-11, Response tract.” Jones purpose collecting debts certified to 663). RFQ, # PagelD The retention Second, the OAG. it authorizes the Attor- agreements themselves reiterated ney pay special to set the coun- General “[s]pecial engaged by counsel shall be sel, only which must be allocated from Attorney solely independent General on an special funds that counsel themselves have (R. 48-8, contractor basis.” 2013 Reten- Third, § requires collected. 109.08 the At- 635). Agreement, PagelD tion # Absent torney provide General OAG letterhead being specifically contract and work as- any special assigned counsel to collect thereunder, signed “special counsel” is an sentence, specific tax debts. The fourth empty Finding authority title. no derived “The counsel shall use the letter- title, say from this we cannot stationery, only head but in connection perform are “authorized law” to arising the collection of with such claims They any duties. are instead authorized taxes," only provision out of those is the only by contract OAG. grants any authority the statute that Attorney suggests General special counsel. Ohio Rev.Code 109.08 added). reading that “a fair of ‘authorized law’ only (emphasis provision This simply that it lawful for the means was activity, fails to authorize collections it [s]pecial to direct that the manner in restricts which collections any' actually perform occur should collections duties [c]ounsel interpretation assigned by be authorized or General’s office.” This spe- counsel in the collection 6. The General's insistence that letterhead supports an inference that cial counsel violate this restriction is the basis of consumer debts special counsel to be for this action. Taxes owed to a state are not the state understood legislature's collectors and not entitled debts under the FDCPA. The specifically government failure to the use OAG to use letterhead. endorse any office. The use of the definite Attorney obviously flawed. duties, many of which are and “office” preceding numerous article both “duties” has necessity to his staff delegated by lawfully Dictionary in the Act’s definition restricts OAG, are officers. not all of whom at the language. interpretation our reading of the Gen- (but A narrower frequently word ‘the’ not al “[T]he ” only could be that interpretation eral’s ways) thing.’ ‘a particular indicates specifically con- delegations that are those -, Canning, NLRB v. Noel 573 U.S. being au- by qualify as templated statute 2550, 2561, 134 S.Ct. 189 L.Ed.2d 538 However, explained as by thorized law. (2014). It can used to refer to also be (not above, delegation actual one only an id., may something generically, be the falls merely contemplated) within that is By way example, case with “the office.” word “author- ordinary meaning of the person by authorized officers include only ized.” We are left perform law to the duties of the office in authority contracting support General’s could be the Office of At question —which But position. General’s torney public General or some other office. by “authorized law” cannot be con- phrase However, precedes “the” that word all so as to include duties and re- strued only “duties” has one sensible construc by an entrusted contract to sponsibilities specific thing it refers to a tion-—that —all To independent contractor. hold other- in ques duties associated with the office would invite a result— preposterous wise tion. It would be unreasonable to con bestowing officer status under the Dictio- “the,” instance, “a,” strue to mean every independent Act on contractor nary See, “any.” e.g., “some” or Sandifer working on behalf of a state.7 This cannot — U.S.-, Corp., U.S. Steel of a “Interpretations be the case. statute (2014) 870, 876, (“It 187 L.Ed.2d 729 is a produce would absurd results are to which statutory fundamental canon of construc- interpretations if be avoided alternative that, defined, tion unless words otherwise legislative purpose consistent with interpreted taking will be their ordi- Dep’t Guzman v. U.S. available.” of nary, contemporary, meaning.” common Sec., Homeland (internal omitted)); quotation marks Free- Cir.2012) (internal marks quotation omit- — Loans, Inc., Quicken man v. U.S. ted). -, 2034, 2042,182 L.Ed.2d 955 S.Ct. (2012) (“And that, usage it is normal in the 2. “The Duties” of the Office indication, contrary governs absence of our law,” Turning from “authorized we texts.”). interpretation of disqualify find another reason only if Special qualify counsel as officers plain counsel as officers under the mean- all Dictionary Mainly, рerform Act. are entitled to duties of ing of the But perform public counsel do not “the duties” some office.8 Ohio, 123.21(3). example, In the Facilities Con- his or her office. Under the At- torney interpretation struction Commission and its Executive Di- of the Dictio- Act, "general supervision every independent nary rector are tasked with contractor work- any projects, project over the im- ing construction of for a state construction public buildings provements, or agency constructed in the State of Ohio would be agency.” Ohio Rev.Code officer state. 123.21(2). Director, The Executive like the General, interpretation also consistent with is authorized statute to 8. This understanding engage independent the common of the term "offi- contractors to undertake (“In specifically Officer, public af- prescribed functions statute to cer.” See BLACK'S

1101 independent-contractor counsel cannot counsel’s Special entitled. status. are not so Attorney Gener- all duties of the perform overwhelming weight authority sen office; are associated with al’s nor sibly independent finds that contractors A “public office.9 office” any public other exempt coverage are not from FDCPA as legal has position occupant whose is “[a] employees, pursuant officers or to 15 government’s sover- authority to exercise 1692a(6)(C). See, e.g., U.S.C. Braman period.” for a fixed Public eign powers Funds, Inc., v. United Student Aid 94 added). The Office, (emphasis BLACK’S (“This (9th Cir.1996)' 1260, F.3d 1263 ex debts is not a authority to collect consumer emption only gov to an applies individual instead, right it is a sovereign power; employee ernment official or who collects by any exercised creditor. See can be part government employ dеbts of his (“The Power, power Sovereign BLACK’S responsibilities. ment is [The contractor] laws.”); Sovereign enforce to make and private .nonprofit organization (“A unique right pos- Right, BLACK’S contract....”); government Pollice v. its that en- agencies sessed a state or L.P., Funding, Nat’l Tax carry it to out its official functions ables (3d Cir.2000) (“The exemption express benefit, distinguished public for the ly ‘any officer or employee limited rights that it proprietary from certain [And, any United States or State’.... private person.”). possess like other does not extend to those who are mere it] designated office or legislatively Without ly in relationship a contractual with the authority sovereign powers, to exercise government.”); Piper v. see also Portnoff special counsel are not officers Assocs., F.Supp.2d Law State. (“Because (E.D.Pa.2003) the defendants relationship are in a contractual with the Officers, Appointment, and Inde- B. ..., City municipal exemption officers’ Contractors, Generally pendent them.”); v. does not extend to Gradisher Dictionary inappli- Even if the Act were Unit, Inc., Check Enforcement case, to this our conclusion would be cable (“This (W.D.Mich.2001) 988, 992 F.Supp.2d has at- the same. agrees Court with Braman and Pollice “ap- special weight tributed to the word that an contractor is not enti it is not due. For reasons point,” which pursu to the exemption tled to an FDCPA legislature, all of the only known to the 1692a(6)(C).”); Knight ant to 15 U.S.C. employees appoint- Schulman, F.Supp.2d v. (“The ed. See Ohio Rev.Code 109.05 (S.D.Ohio 1999) (“Since the Defendant was attorney general may appoint such em- than attorney private practice, rather necessary.” (emphasis add- ployees as are employee of the United an officer ed)). guisе remove this as the Once we States, from the defini he is not excluded authority, counsel’s basis for collector, regardless tion of debt of wheth readily apparent. resolution of this issue is acting agent as an er the Defendant was The salient distinction between the letters the United States the time counsel and the General’s em- written.”). ... were ployees, appointed, who are also fairs, holding esp. person 9. The General has conceded the term refers to a national, state, public legislatively designated office under a or local office of there is no govern- government and authorized special counsel. function.”). specific ment to exercise some Gregory legal question points raised Quite simply, “[t]he Ashcroft who has been rule. See 501 U.S. “plain ... is someone statement” whether (1991) to the attor special 2395, counsel' appointed 460, 111 115 L.Ed.2d 410 S.Ct. as a characterized ney general properly (“If is to alter the usual Congress intends indepen or as an employee officer or between the States constitutional balance Wiles, Boyle, v. dent contractor.” Government, it the Federal must Keefer LPA, Co., Bringardner, Burkholder & unmistakably to do so make its intention 2:07-CV-1288, 2:07-CV-1205, 2008 Nos. (in- language clear in the of the statute.” (S.D.Ohio 23, 4404295, Sept. at *3 WL omitted)). This quotation ternal marks added). 2008) The (emphasis third-party debt collectors. case is about legally has distanced himself General being regulated; nor is the Ohio is that the special from counsel so the OAG government being chal- structure of its negative does not suffer the State of Ohio lenged. counsel’s actions. consequences special of assertions, spe- Contrary to Defendants’ Now, special to see that counsel he wishes fail of qualify cial counsel also as officers they as if are officers of get treated the State under Ohio’s own laws. Section Ohio, directly supervi his of under State 109.36(A)(1) de- of the Ohio Revised Code cannot have it sion. The General employee” fines an or “[o]fficer “[a] ways; special counsel are not officers both serving ... in an or person who elected they are in employees simply because position office or with the state appointed No court has held dependent contractors. by the state.” Defendants employed or is otherwise.10 that counsel must be offi- special

conclude Policy Federalism and Concerns C. “appointed” pursu- cers because § a “position ant to 109.08 to with the frame General seeks to “ap- use of the word Again, state.” federalism, a matter of funda- this case as point” Supreme is overstated. The Court insisting Congress mentally should recognized of Ohio itself has that courts legislated indepen- that an explicitly have much into the ... should not “read so incapable being of an dent contractor is ‘appointment’ word because ... the more employee” “officer or of the state. For authority, significant statutory words in defini- legal [the (internal omitted)). point sup quotation 10. Defendants to a few cases for State.” marks Heiser, inapposite. port, they are In Bell v. Similarly Berridge F.Supp. but v. Newnham, L-89-373, WL 1997), No. (S.D.Ohio the court found 14, 1990), (Ohio Ct.App. Sept. at *2 the Ohio special sued under counsel could be Appeals special held that counsel Court of "acting if under color of state law.” "acting [state] was ... under color of law” Green, (3d Finally, in Heredia v. 667 F.2d 392 purposes for the of a 1983 suit. The court Cir.1981), the Third Circuit found that the plaintiff relied on the fаct that the had sued exempt defendant was a state officer from special capacity counsel "in his as a state coverage ap- FDCPA because he had been employee,” but the court never ana officer or pointed and Tenant Officer of the a Landlord lyzed validity assumption. of this Wheth counsel, court. Like the defendant er or not counsel were "officers or charged serving with debt notices. Un- was insignificant employees” in the 1983 con counsel, the Landlord and Tenant like text, widely accepted indepen where it is position prescribed stat- Officer was duties may act under dent contractors color of law. position not in ute and the holder of the was Co., Lugar v. Edmondson Oil 457 U.S. relationship an contractual 922, 941, 2744, 73 L.Ed.2d 482 collecting purpose debts. See id. at n. (1982) ("To act color of law does not under require that the accused be an officer of the employee’] are ‘office or fair reading tion ‘officer Another of Ohio’s “officer or ” employee” only statute is- that individuals Engel position with state.’ Univ. of ” appointed an “serving elected or Med., 130 Ohio Toledo Coll. St.3d office officer, an qualify as whereas those “serv- ¶ (2011).11 957 N.E.2d ing in ... appointed position by noting “public that a court elaborated merely the state” are employees.13 Special possess sovereign officer ... must some necessarily fall into third catego- government be exercised functions contractors, ry, independent because it ap- public him for the either benefit pears the legislature failed to distin- executive, judicial an char legislative, of or guish between “employees” “officers” and ¶ (internal Id. at quotation acter.” the presumption based on officers all omitted) added); (emphasis marks accord are, fact, employees of the State of Ohio. Bennett, App.3d 8 Ohio Solowitch interpretation This is consistent with an- (1982) (“The 456 N.E.2d chief and code, other of provision pre- the which of public most decisive characteristic of a every sumes that officer has a State-entity quality fice is the of the determined (“All § employer. expenses See 109.361 with the appointee duties which is invest defense of employ- the an officer or If prescribed by ed.... official are duties paid ee be employer shall the - statute, performance and their the involves employed employee the officer or at the continuing independent, politi exercise of alleged time the act omission oc- or functions, governmental cal or then the curred.”). However, the is not spe- State (internal position public quota is a office.” (nor cial any independent counsel’s con- omitted)). Special tion marks ex counsel tractor’s) employer.14 Employer, See “sovereign ercise neither functions” nor (“[0]ne BLACK’S who and controls di- “independent, political governmental or express implied rects a worker under an or they functions.” prescribed Nor contract of hire and the pays who workers’ any duties,” “powers statute and as is com wages.” added)); salary (emphasis or In- (“Some- Contractor, throughout mon the code.12 dependent BLACK’S attempt distinguish deputy superintendent 11. Defendants case and this tendent for sav- "appointment” because' the use of the word ings savings and loan and associations appeared opposed in a letter as statute duties”); to a powers § and 118.08 banks — (like 109.08); however, recog- § duties, fail to ("Powers, and of functions financial specifically nize that the court identified commission”); planning supervision and important defining which words were most ("State public powers § 120.04 defender — state, pursuant an officer of duties”); ("County § public and 120.15 de- 109.36(A)(1) § position —"office duties”). powers and fender — state.” Special explicitly counsel 13. has disclaimed See, e.g., (Attorney § Ohio Rev.Code designation through employee contract. duties);' powers § and 109.04 ("Powers attorney and of first duties assistant "paid by 14. The could have said ("Powers general”); § 109.75 and duties of office, agency, department employed,” peace training officer commission executive any language sug- that did or used other director”); ("Duties § 111.04 of sec- assistant gest specific relationship between offi- State]”); retary § ("Department 121.081 [of entity cers and the that hired them. We must . duties”); powers of and insurance — presume legislature the Ohio used the § (“Superintendent 121.083 industrial understanding chose with duties”); words it a full compliance powers § 121.33 — Distribs., ("Office meaning. Beverage their common Hispanic-Latino powers affairs — Co., duties”); Brewing F.3d ("Inspector general— § Inc. v. Miller 121.42 Cir.2012). duties”); powers (“Superin- § 1155.011 is re- Financial Protection of Consumer specif- to undertake a one -whois entrusted prac- to do the “debt collection exempt all quired but who project ic free left subject choose the method and to that are assigned work tices within State” it.... an em- Unlike un- accomplishing requirements “substantially similar” contractor who ployee, an 1692o. See 15 U.S.C. der the FDCPA. carrying out the wrong while commits a similarly were situated If liability for not create usu[ally] work does of the State employees to officers or hiring.” (emphasis the one who did Ohio, could the Ohio аdded)). pro- this sought exemption have under the statute. C.F.R. vision of truly be- Defendants Special If Counsel (“This proce- subpart establishes as officers of 1006.1 in their status lieved Ohio, question whereby may ap- states begs then it and criteria State of dures represented by the why they exemption are not now of a class ply to the Bureau for See Ohio Rev.Code General. apply- with the practices of debt collection receipt of a written (“Upon 109.361 provisions from the ing state employee, an officer or request [FDCPA].”) attorney general represent ... shall explicit an Notably, Congress did create any civil employee defend the officer or private for certain entities. exemption against the officer or em- action instituted § of this 1692p. presence 15 U.S.C. simple. Special The answer is ployee.”). notion that provision against militates they are are not officers because counsel exempt indepen- to Congress also intended the hold- independent contractors and not , contractors, from FDCPA generally, dent Advisory public Opin- of a office. See ers Corley v. coverage saying without so. See 75-016, Ohio Ethics Commission ion No. States, 303, 314, United U.S. 19,1975).15-16 (August (2009) (“[A] statute L.Ed.2d 443 employee If officer or an actual given construed so that effect should be debts, collecting these State of Ohio were will be provisions, part to all so that no its from FDCPA exempt he or she would be insignif- inoperative superfluous, void or n natural coverage. To the extent this omitted)). (internal quotation icant.” marks interpretation employee,” of an “officer ór for exemption not include an Congress did contractors, independent which excludes similarly situated independent contractors ability organize to its restricts a state’s will not do so now. special to counsel. We plain make a government, Congress did are, simply, their con- Special counsel as right statement about a state’s to seek states, tract with the coverage: relief from FDCPA the Bureau they employed by indepen- Nor were the state Ethics Commission—an 75-016. 15. The Ohio body responsible advice and they independent dent for ethics contractors.” because "are respect the executive enforcement with to Id. to specifically asked address branch —was special officers of the whether counsel were (Un- 124.11(A) point also to 16. Defendants pursuant 109.36 to advise State of Ohio service), which service—classified classified they attorneys serving counsel if alongside of assistant at- lists counsel prohibition against subject were torneys general civil servants. as unclassified receiving outside income. The Com- officers categorization meaningless, as it also This "[s]pecial mittee noted that counsel of nurses, teachers, staff, library includes attorney general appointed an are not ... firefighters, among many others volunteer instrumentality office or an of the state certainly who are not officers. agent engaged of an but are rather Advisory Op. elected officer of the state.” No. Independent danger posed by harassing contractors. inherent independent employees are not contractors officers or deceptive practices collection is that con- plain language Dictionary under pressed be sumers will into un- making they Nor are officers of the State of Act. informed decisions about debt prioritiza- simply because 109.08 uses the Ohio tion, daily which affects their lives. See do not “appoint.” Special word (“Abusive § 1692 U.S.C. debt collection office; public any nor wield hold a do practices contribute to the per- number of sovereign power. specifically The FDCPA bankruptcies, sonal instability, to marital regulate independent debt collec- sought jobs----”). to the loss of When the send- any Like tors. other misrepresents er of a letter his or her collector, special paid only counsel are authority, least sophisticated consumer they actually collect Con- when a debt. might reasonably intimidated, confused, be explicitly gress referenced this incentive as pressured and “feel to immediately pay the contributing problems to the attendant debt, if she disputed validity.” even its independent debt collectors. See Weiner, Barany-Snyder v. 95-382, (1977), No. at 2 S.Rep. (6th Cir.2008) (internal quotation (“Collection agen- U.S.C.C.A.N. omitted). marks commission, generally operate cies on ... and this has too often the incentive created Intimidation is at the heart of this means.”). By finding to collect case. There is no compelling reason subject counsel are to the special counsel to use the OAG letter prohibitions, merely FDCPA we are hold- head, than to their misrepresent other ing Congress’ target reg- intended authority place pressure and in on those independent debt collectors—are ulation — receiving dividuals the letters. The At actually subject regulation. to the torney any General insists that sense of (i.e. intimidation) urgency created False, Misleading Deceptive, II. or Acts permissible the letters is because Liability § 1692e and special authority regular State has that a states, Section 1692e “A debt collector putative creditor dоes not. This authori false, any use deceptive, or mis- ty any in is not cited brief. Attor The leading representation or connec- means ney argument General mentioned at oral any tion with the collection of debt.” 15 power garnish wages with and to § provision, along 1692e. This with U.S.C. However, lottery winnings. hold these subsections, provides its an “extraordinari- powers precisely powers are those consumers, ly protection base of broad” granted are to all creditors after Gangwish, Frey 970 F.2d judgment against have received (6th Cir.1992), prevent and is intended § debtor.17 See Ohio Rev.Code 2716 et by in- practices all abusive debt collection seq. (allowing garnishment wages for of dependent debt collectors that tend to de- creditors); to judgment Ohio Admin. or ceive mislead a consumer. See 15 3770:1-801(B)(7) (“It § for (allowing- § Code of purpose is the [the U.S.C. garnishment lottery of prizes judg collec- FDCPA] eliminate abusive debt ” added)). creditors). An practices.... (emphasis Presumably, tion ment it awards”); lottery prize § from The does have 3770.072 debts, powers'with respect (“State to tax which are withholding filing tax income See, e.g., not at issue in this case. Ohio Rev. report”). § (“Satisfying Code 3770.073 debts to state dard, so as to cast relatively low bar with respect with extraordinary powers lack consumers, over all FDCPA-protection consumer debts collection of to the “gullible” or “naive.” to seek out those who Attorney General even causes Mar ‍‌​​​​‌‌‌‌​​​‌​​‌‌‌​‌​​‌​​‌‌​​​‌‌‌​‌‌​‌​‌‌​​​​‌​​‍ in “the Michael “expertise” v. Law P. Kistner special counsel Offices of LLC, Cir. “post-judg- judgments” gelefsky, securing of (R. 2008). 48-11, RFQ However, objective Jones it is an because collections.” ment (cid:127) 660); standard, “liability see also Ohio # not sanction Response, PagelD we will 131.02(C) (listing the Attor- interpretations idiosyncratic or Rev.Codе bizarre options: collection Barany-Snyder, ney General’s notices.” collection (internal collect the shall attorney general marks quotation “The at 333 F.3d ” (empha- omitted). judgment.... ques claim or secure Courts must consider added)). use of the letterhead sis the FDCPA’s liability light tion of beyond mislead- apparent purpose abusive, no has prevent prevailing purpose —to it is the believing into ing a consumer deceptive debt collection misleading, and collecting on the who is Attorney General practices. n not result intentions do account. But bad , liability general provi- In to the addition 1692e; col- the debt liability under sion, spe- sixteen the FDCPA enumerates actually decep- must be practice lection per to be cific instances of conduct deemed tive. rely violations of 1692e. Plaintiffs se us, then, is whether question before 1692e(9) §§ provisions, two of these could reason- unsophisticated consumer (14). limiting general appli- “Without thinking being was into she ably be misled following con- foregoing, cation of the Attorney General by the Ohio contacted is a violation of [§ 1692e]”: duct use of to an contractor’s due (9) any The use or distribution of writ- could, If she we must letterhead. OAG communication which simulates or is ten genuine there is a determine whether also falsely represented to be a document any fact confusion material as to dispute of authorized, issued, by any approved collec- created this debt that could be court, official, agency of the United circum- practice particular under tion State, or which creates a States or case. Before we answer stances of this source, impression as to its authori- false liability an overview of the questions, these zation, approval. or necessary. provisions (14) business, any company, The use of Liability Provisions A. than the organization name other 1692e, A debt collector violates collector’s busi- true name of the debt practice collection put simply, if the ness, organization. company, or tendency confuse the he uses has (14). 1692e(9), Only §§ material Harvey consumer. v. 15 U.S.C. sophisticated least prohibitions 329 violations of the 1692e will Corp., Fin. 453 F.3d Great Seneca Cir.2006). (6th liability.18 Washing- in objective an stan- result Wallace This is Javitch, materiality Miller v. Block & Rath- suggest that must be statement.” 18. Plaintiffs bone, (6th Cir.2009) (inter- (9) (14) F.3d presumed be- under subsections omitted) (emphasis misleading quotation add- nal marks subsections describe cause those Here, ed). repre- we are concerned whether the deceptive opposed to false means as making using letterhead —is overstated. OAG This distinction is sentations. means— materially the letters ordinary any false statement "Materiality an element of were, fact, by misleading General. sent claim based on a false or federal Bank, F.A., process cation and fail to why 326-27 understand Mut ton Cir.2012). materiality But chief Ohio’s law enforcement officer is at- than a restate- context is no more tempting FDCPA to collect from them. Receiving the above-referenced standard: ment of university, a bill from a state which the if it or act is material representation false attended, actually consumer would natural- tendency to confuse the least so- has the consumer, ly perceived by average be an phisticated consumer. Id. one, say nothing gullible of a naive or substantially receiving different from a col- and the B. OAG Letterhead Least letter lection written on OAG letterhead. Sophisticated Consumer presence symbols of the authoritative decide, given particular must We top at the of the letter immediately signals this case and the words written in facts of to the debtor that it is the State Ohio letters, sophisticat- these whether least that is threatening against to take action by consumer would be misled the use of ed deceived, If her. the consumer has been or, letterhead, any genuine if there is OAG overborn, he or she be pre- and the dispute of fact as to whether these letters type cise of abuse that the sought FDCPA Wallace, misleading. were 683 F.3d at to eradicate has been achieved. 1692e(9) prohibits debt 326-27. Section not, however, The letterhead is the sole “simulating]” from official docu- collectors ments; representation by made these letters. “falsely representing]” from We presume must that Plaintiffs will being a communication is “issued” read the notice, entirety government agent; distributing and from of the collection with “a im- communications false understanding “create[] basic level and care.” (14) pression Kistner, its source.” Subsection F.3d 438-39. Both letters “any ... name prohibits use of other included clear indications that were than the true name of the debt collector’s attorney sent an acting who was as a provisions business.” It is clear that these collector. There was also some indi- were violated the technical sense—Mike attorney’s cation that the role as a debt not the true name of DeWine is Defen- collector was separate apart from the counsel, dant, Sarah Sheriff is not a signed OAG. Defendant Jones the letter certainly implied official and the letterhead directed to Gillie as “Outside Counsel that the letter was issued the OAG. But General’s Office.” He also misrepresentations whether these are ma- used his business address and informed requires analysis. further terial to contact one of employees Gillie his at his Likewise, law firm. Defendant Sarah Historically, special counsel’s use of signed Sheriff the Meadows letter as both letterhead has led to confusion. The OAG employee of Firm Wiles Law and as receiving General admitted to representations counsel. These phone asking calls from consumers wheth- may clarify confusing impact of the authentic, er the letters were and if the sophisticated letterhead for the least con- in fact a debt to the consumer did owe sumer, they may be overshadowed Attorney General. This revelation is un- larger presence of the Great Seal of surprising; many might consumers rea- and name. sonably be unaware of Ohio’s debt certifi- Ohio Moreover, deceptive practices materiality requirement collection with- a is consis- and debt legislative Rep. unnecessary tent with the intent. See S. imposing ethi- out restrictions on ("[The protect purpose is to added)). FDCPA's] 95-382 (emphasis cal debt collectors.” unfair, harassing, from a consumers host of

1108 that by intimating repayment rate of “special counsel” of the title The inclusion letter, nothing sending about a in fact says of Ohio is signature block State in the relationship to the Attor- may the naive consumer collector’s which lead debt that General; representation and the ney all others for no prioritize this debt above acting as outside collector is debt al- But intentions are not good reason. preclude firm does not working for a law necessarily pre- not ways realized and do L.P., 310 liability. v. GC Servs. See Peter on the least impact of thеse letters dict Cir.2002) (5th (finding a 344, 352 F.3d our role consumer. It is not sophisticated 1692e(14) a debt col- where violation of certainty and to assert with judges name in the letter its true lector used reason which individuals without verifiable n while directing the consum- simultaneously by these or would not be misled would address). return government’s er to the Therefore, not do so in we will letters. may have collector letters did this instance. Whether these point at the impact desired achieved his clarify initial confusion cre- enough to the least opened is when the letter government of the letter- ated the use perceives the name sophisticated consumer See, jury. e.g., question head is a the least General because 441; Kistner, v. F.3d at Hartman 518 consumer believe sophisticated 606, Corp., Fin. 569 F.3d 613 Great Seneca just gone up.” poker has price “the (6th Cir.2009). Rubin, 222, 229 v. 84 F.3d Avila Cir.1996). suggest The Wiles Defendants reasonably have been Meadows could below, the court be- parties, Both previously she en- confused because had summary appropri- is judgment lieve pay the debt in agreement tered into an other, materiality is way or the but ate one letter at her question and the was sent fact. of law and question a mixed rings But this contention hol- request. Gaudin, 506, v. 515 U.S. United States low,19 regardless, would not shield De- (1995) 132 L.Ed.2d S.Ct. liability Meadows fendants from because (“It for the same mixed commonplace allege harm or actual con- did not have to assigned fact question of law and to be liability is a “strict fusion—the FDCPA jury and to the purpose, the court for one Mortg. Corp. Home Loan statute.” Fed. another.”). And, often “whether a let- (6th Cir.2007). Lamar, v. F.3d question of fact.” misleading ter is raises Inc., Grp., Buchanan v. Northland Defendants also seek shelter (6th Cir.2015). A letter

F.3d liability by way qualified potential from сontradictory information or that contains immunity, generally “govern shields which signal inherently tends to send a mixed performing discretionary ment officials language it fails to include confusing when damages liability from civil functions meaning. that clarifies its Miller v. Wol- long reasonably as their actions could Abramson, L.L.P., 292, as poff & Cir.2003). (2d letterhead, thought consistent with the have been Use view, higher rights they alleged to have violated.”20 is intended to induce our 1657, 1665, Delia,-U.S.-, generically addressed to 19. The letter was (2012). But three of five 182 L.Ed.2d 662 "Sir/Madam.” Firm, Law Law Jones Of- Defendants —Wiles working 20. Private individuals on the behalf fice, relationship and Sheriff—had no Sarah protec- government may the of the also seek 48-8, (R. government. See 2013 with the immunity, offering qualified if such tion of 634) ("[T]he Agreement, PagelD # Retention public Filarsky protection the interest. serves

1109 635, 638, ney 483 Creighton, private practice, Anderson v. U.S. rather than an (1987). 3034, L.Ed.2d 523 officer or employee States.”); 97 of the United immunity inapplicable But see also v. qualified Profs., to McMillan Collection Inc., (7th Cir.2006) (“[I]n directly 754, an under the 455 brought action F.3d 761 FDCPA, has included an some truth Congress may where cases the literal convey a (internal explicit from debt collector lia- exemption misleading impression.”) quota- bility government omitted); for officials. tion Andrus marks Gradisher v. Check Cf. Co., 608, 616-17, Inc., Unit, v. 446 Glover Constr. U.S. 210 F.Supp.2d Enforcement (1980) 907, (W.D.Mich.2002) (“The 100 L.Ed.2d S.Ct. fact that (“Where Congress explicitly [the enumerates had an ‘affiliation’with defendant] the general a exceptions prohibition, [government] certain is thus irrelevant because exceptions additional are not to be im- [the notices created the defendant’s] false ,”).21 plied. impression .. generated the notices were by the [government].”). insists Attorney General that no deception Special in this an duty has ocсurred case be- counsel affirmative had cause and the as debt by provi- counsel OAG are but collectors to abide the one and But sions of the same. not.22 the pro- FDCPA. FDCPA hibits, relationship spe- deception, The contractual between as a per se the false im- plication cial counsel and the General is no that a notice being collection relationship government different than the between sent actor. decep- This any private, collector tion profit inappropriately and influence a con- the creditors he or serves. And sumer’s by inducing prompt she nei- decisions relationship, any payment, ther a contractual nor regardless debtor’s cir- power an agency, descrip- accuracy of nor accurate or of alleged cumstances the the tion of their employee counsel relation to indebtedness. That OAG OAG, liability the precludes leverage against under could attain the same Schulman, alleged FDCPA. v. at Knight debtor is not issue this (S.D.Ohio 1999) (“[Re- F.Supp.2d officers employees and case— gardless of are exempt whether Defendant was from the FDCPA. Whether acting as an or not agent by special United States at the use of the letterhead written,” OAG, the time the ... were compelled jury letters was applied reasonably FDCPA was an attor- could coun- “[s]ince [he] find of, appointment personal employment Special regarded Counsel is shall be as in nature and does not extend to law firm of, employee as an General or with.”). Special associated Counsel is Clients”; "Special the State counsel shall be engaged by solely on an Qualified immunity typically applies 21. to ac- basis”; "Special contractor brought pursuant tions 1983 or under shall, expense, procure Counsel own its only coverage extended Bivens. We have its maintain, during Agree- the term of this directly brought to actions under a federal occasions, see, ment, insurance”; e.g., statute on a few Cullinan malpractice "Special Abramson, (6th 1997) Cir. F.3d indemnify agrees Counsel to hold the (RICO); Wright, Blake v. State General and the of Ohio harm- Cir.1999) (Federal Act), Wiretap 1011-12 any and all less and immune from claims for explicit include those statutes did arising injury damages from this Retention exemptions public officials. Agreement Special that are attributable or omissions or those See, 48-8, Counsel’s own actions (R. Agreement, e.g., Retention associates....”). 634-35) (“No PagelD Special partners, # Counsel his/her Treasurers, Debt Collection: Government confusing; letterhead use of the sel’s 1-2 1692e, Survey Report and Recommendations as a of a violation and therefore (2010), http://goo.gl/k07GQ9. misleading available false, deceptive materially agents to as a result hire other The States importance of recognize the practice. We In for them. the State collect the debts own ac- to collect its ability a state’s Ohio, Attorney the that means counts, assigned it has debts but once collector, lawyers “special private hires third-party debt independent, —called behalf, to collect debts on his counsel”—to That is what apply. rules the federal lawsuits with file and settle debt-collection coun- case. And happened this plea- to serve at his permission, and they have his jury if a finds sel are liable Attorney lawyers become the sure. These something they out as held themselves pur- agents for debt-collection General’s are not. just employeеs as the the Collec- poses, Attorney tions Enforcement Section CONCLUSION agents serve as his General’s Office jury reasonably find could Because together all of them purposes, these of the Ohio Gener- that the use place to stand in his when are authorized “special the counsel” act- al’s letterhead money. recovering the State’s collectors, in the ing pres- and under the circumstances manner against class action Plaintiffs filed this here, deceptive, misleading ent to result counsel under the Fair the State’s in violation of the representations and false Act, claiming Debt Collection Practices Act, Practices we Fair Debt Collection were their debt collection letters summary judgment hereby VACATE they because used misleading” “false and and REMAND this in favor of Defendants stationery the Ohio Gener- court with instructions case to the district name’ on it. That claim has two seri- al’s jury to submit to the for the district court exempts is that the Act ous flaws. One letters question as to whether these coverage. Under state “officers” from its actually confusing sophis- to the least were dear-state- Dictionary Act and the ticated consumer. by Gregory v. Ash- ment rule established croft, 111 S.Ct. 501 U.S.

SUTTON, Judge, dissenting. Circuit (1991), deputizing pri- L.Ed.2d lawyers attorneys to act as assistant founding, the States have tak vate From the general makes them “officers” of owed them or to en debts—whether Any purposes. v. State for these collection seriously. Compare Chisholm them — (2 Dall.) 419, mean that Con- interpretation 1 L.Ed. 440 other would Georgia, U.S. (1793), micromanage how a State gress amend. XI. If meant to with U.S. Const. and debt- sovereign right to set the structured its law-enforcement States have the sued, Maine, grave efforts and would create being terms of see Alden v. cоllection 715-27, along way. 144 constitutional concerns U.S. counsels’ (1999), assuredly a The other flaw is that L.Ed.2d 636 have how, when, sta- use of the Ohio sovereign right to determine description the accurate myriad tionery to collect the debts and whether are not relationship with the State knowledge to them. No State to our their owed misleading” “false and under statute. employs all of the individuals needed stationery, Gener- perform sovereign this function. See Nat’l The which use, ac- Auditors, special counsel to Comptrollers, requires and al each Ass’n State

1111 State’s) reali- the curately legal the relevant extension behalf. describes Section 109.08, agent wrap firm of up, acts as an to is a “law” that ties—that the law “author- and stands counsel to ize[s]” General act. Attorney General in collect- shoes of the consider key phrase: Now the other I to the State. ing money owed Because of “the duties the office.” An “office” is a the Fair apply would not Debt Collection “position occupant legal whose has authori state sovereign Practices Act to functions ty government’s to exercise a sovereign has not Congress regulated power a fixed period.” Black’s Law Congress prohibit would not conduct that (10th ed.2014). Dictionary Special counsel banned, I respectfully has not must dis- fit as well. They one-year this bill serve sent. in position renewable terms created and empowered statute. In their hands

I. nothing rests less than portion sovereign The Fair Collection Practices Act power Debt to “false, prohibits collectors from the civil using legisla “enforce” code the Ohio misleading representation^] deceptive, quintessen or ture has crafted —“one of the means connection ‍‌​​​​‌‌‌‌​​​‌​​‌‌‌​‌​​‌​​‌‌​​​‌‌‌​‌‌​‌​‌‌​​​​‌​​‍with the collection tial functions of a in this in State” — any § collecting debt.” 15 U.S.C. 1692e. Mindful stance money due the State. Charles, authority 54, sovereign 65, of the Federal Diamond v. 476 U.S. 106 (1986); Government and the States to determine S.Ct. 90 L.Ed.2d 48 see Asso how, when, through whom to collect Perry, ciated Builders & Contractors 16 debts, (6th Cir.1994). government “any the Act exempts F.3d That may any why, officer explain the United States after lost Georgia Chisholm State that” Supreme to the extent debt collection before the Court and was forced “his among ranks official 15 to to federal duties.” come court to defend debt- 1692a(6)(C). § Dictionary it, U.S.C. Act against Supreme collection efforts “any person defines proceeded “officer” authorized Court to lose Chisholm before by law perform to duties of the office.” the People. U.S. Const. amend. XI. 1. Outside quintessentially sovereign U.S.C. counsel hired to These are func governmental concerning money. handle duties fit that defini- tions the People’s Spe tion to perform a tee. cial counsel to core sover hired eign exempt functions 'count as “officers” Begin phrase with the “authorized from Fair Debt Collection Practices give legal law.” To is “[t]o “authorize” sweep. Act’s empower,” authority,” “to or “to sanction.” (10th ed.2014). Dictionary Black’s Law if one Dictionary Even thinks that the special-counsel That is what statute Act’s ambiguous Ohio’s definition “officer” is context, empowers applies. does. It General this still exemption “appoint Congress regulate to represent purports When to core debts, functions, unambigu- the state” in and state it so connection its must do permits lawyers Gregory, it private ously. action those 501 U.S. at S.Ct. attorney-gen- Gregory take when invoke their 2395. The clear-statеment admo- authority. construing eral-given ambigu- Ohio Rev.Code nition bars courts from statute, 109.08. But for the ous federal statutes to “trench on the arrangements conducting law- their power private has no hire States’ contractors, yers lawyers governments.” own Nixon v. Mo. Mun. private (and 125, 140, speak by League, have U.S. power no his (2004). “If in- Debt Congress Program Delinquent Collec- 158 L.Ed.2d Offset (2014), http://goo.gl/60 recalibrate state and federal tions available at tend[s] 70ul; traditionally area has see 285.8. But other power in an 31 C.F.R. See, government,” private entity. it e.g., of state times that is a province been the 67-2358(1); § v. doing in so. Idaho Code Ann. Or.Rev. must clear Jackson be Servs., Inc., 293.231; § Mgmt. 731 Stat. Rev.Code Sedgwick Claims Wash. Cir.2013) banc). (en collections-assign- § 19.16.500.One State’s F.3d 567 ment bears than a passing scheme more deny plaintiffs’ interpreta- Who can to Ohio’s. Fran- resemblance California’s on the States’ “treneh[es] tion of “officer” chise Tax hires private Board contractors conducting arrangements their own collect to debts the State’s behalf and Nixon, 541 governments”? U.S. to debts liti- authorizes them “refer” “for au- sovereign 124 The States’ S.Ct. 1555. legal gation representatives [their] thority power them to structure their gives name the Tax the of Franchise Board” legal they please, and their departments 19376(b). § & itself. Cal. Rev. Tax Code “pragmatic” approaches and have “varied” the Fair Interpreting Debt Collection array produced “staggeringly] divers[e]” regulate special Practices Act to counsel’s v. governance arrangements. Avery of activities undermines the State’s decision 474, 482-83, Cnty., 88 Midland 390 U.S. responsibilities to allocate law enforcement (1968). 1114, 20 As is its S.Ct. L.Ed.2d n sovereign right, Ohio has between the General and his its empowered the fit. agents however State sees Absent deputize parties Attorney General to third directive, congressional a clear federal to shoulder some of his He duties. courts no to have license interfere with the appoint special “represent counsel to that choice. actions, prosecutions, state in civil criminal Plaintiffs, proceedings notably, or other in which the state is a concede that “[t]he 109.07; § party,” Ohio Rev.Code to “act as term to ambiguous” “open ‘officer’ is attorney multiple[ yet interpretations.” at law antitrust case” for ] reasonable residents, 109.81; the its Br. Reply State and id. at 5. That be should the end rights, privileges, powers inability argue “exercise all this case. Their the prosecuting attorneys” in organized- unambiguous statute in their favor cases, 109.83; crime to “initiate and Gregory id. means the clear-statement rule workers prosecute” question presented: violations Ohio’s answers the “officers” laws, compensation id. 109.84—and includes counsel authorized “represent specific gov- the state in connection with all handle functions, including claims of whatsoever nature which are cer- ernment the collection attorney general tified to the for collec- State’s debts.

tion,” § 109.08. id. argu- contrary Plaintiffs offer several First, ments,

Nor does Ohio alone in this re- all unpersuasive. stand raise gard. Every delegated has at least a canon of State their own: Remedial statutes power some of its debt-collection to a non- v. liberally. must be construed See Cobb Inc., body. State federal Transp., Sometimes is the Contract 452 F.3d (6th Cir.2006). government, year which in fiscal col- But we know that canon delinquent lected more than billion in trump Gregory does clear-state- $3 fifty debts on behalf of all States. U.S. rule itself involved Grеgory ment because statute, Dep’t Treasury, Year 2013 remedial Discrimination Age Fiscal Act, Report Treasury to the States: Employment Supreme Annual Fourth, statement all plaintiffs argue insisted on a clear Court Ohio does not treat special same. counsel as state officers under its own law for some purposes. But Second, plaintiffs solace in two cir seek question at hand is how the federal holding court that indepen cuit decisions Fair Debt Collection Practices Act treats be dent contractors cannot officers: Pol “officers,” not how law treats L.P., Funding, lice National Tax term for some purposes. only rele (3d Cir.2000), and Brannan v. F.3d.379 vant state question law is whether Funds, Inc., Student United Aid F.3d state law satisfy duties of (9th Cir.1996). Neither case helps the federal They definition of “officer.” Pollice, municipal government In them. .a do. if Even state law definitions of “offi collector, its sold debts to a debt relevant, cer” plaintiffs ivere mischaracter 389, eliminating possibility at the that the ize how Ohio the term uses for this pur collector was officer of somehow the pose: debt collection. The state statute government collecting the debt the regulating agencies collection defines such Brannan, government. And in the collec “who, agencies persons as for compensa and not the government tor owned the tion, services to collect an al offer[] in the 94 at place. first F.3d leged debt asserted to be owed to anoth case, contrast, by In this the State of Ohio 1319.12(A)(1). § er.” Ohio Rev.Code Just remains the ultimate creditor and thus its counterpart, like its federal exempts it agents the counsel—collect debts — “[a]ny public terms, from officer” its id. on the State’s behalf. 1319.12(A)(2)(e) Ohio courts define —and Third, plaintiffs аrgue Congress way “officer” the same the Act Dictionary could not have the intended state-officer does. chief and most “[T]he decisive char exception to include counsel be- office,” acteristic of public a the Ohio Su cause the Fair Debt Collection Practices held, preme by Court “is has determined has a separate giving Act provision the the quality of the duties with which the an out: It the may State ask federal Con- invested, appointee by and the fact that Financial sumer Protection Bureau to ex- such upon duties are conferred the appoin empt special from counsel the Act’s re- tee law.” Engel Univ. Toledo of quirements. 1692o. That U.S.C. Med., Coll. 130 Ohio St.3d of misunderstands relief how this valve func- (2011). N.E.2d apply Ohio courts permits tions. The Act the Bureau to ing significance accord no definition exempt “any class collection prac- of debt may the fact particular appointee that a subjected by tices” state law to “substan- also be an independent contractor whose tially similar” consumer-protection re- statutorily prescribed duties are fleshed quirements. question Id. The relevant out by the terms of his contract. See a regulates whether state law certain debt- Bennett, App.3d Solowitch v. 8 Ohio practice stringently collection as federal (1982). All N.E.2d of this law, carry- not whether the debt collectors explains why regards Depu even the Ohio practice on that ing “substantially are sim- ty Registrar of the Bureau of Motor Vehi exempts. ilar” to entities At any the Act cles, an contractor the under rate, premise argument the of this is false. statute, as an “officer.” Id. argued, Plaintiffs have not nor have we any indication, urge the Finally, plaintiffs found State’s con- us to limit sumer-protection regulates Dictionary every law Attor- Act’s definition because qualify General’s own state contractor otherwise ney use of his letterhead. would “false,” stationery “deceptive,” or slope is not as al’s into Any such an “officer.” they imagine. steep “misleading” or as slick as under the statute actions Commission, Facilities Construction Ohio if than it do the same more would support plain majority of cited firm listed his or her name and counsel view, point: There is proves the tiffs’ Attorney name the Ohio General’s under power to nothing “sovereign” about the filed in and address in a brief this Court. agency’s a state repair” “construct[] authority Recall distribution 123.21, buildings, Ohio Rev.Code Special statute creates. special-counsel precondition sovereign power remains agents, General’s Dic respects, In other officer status. place in his when col- authorized stand expansively tionary Act’s definition reads As contracts lecting Ohio debts. their expansive. Con the definition is because clear, Dictio supersede they “provide legal knows makes services” gress how nary Act default and has done so before: R. 48-8 on the General’s behalf. (1) “officer” as someone Title defines They lawsuits with at 2. file settle appointed to be in the “required law permission. Id. President, by the certain civil service” 5. The Collections Enforcement Section (2) heads, court; a federal “en agency assigns the Office in the Federal performance of a gaged collect, specific then audits them debts (3) function”; lim “supervis[ed]” by and a performance. at The State their Id. 3. 5 group people. ited U.S.C. counsel, not sell to special does the debts To Other restrictive definitions exist. they the State. and thus remain debts of the principal as a officer under qualify As a counsel consequence, special Id. at 6. Constitution, person a must be National attorneys are no different from assistant senatorially presidentially appointed paid money. to recover the general State’s office, and swear an oath of approved, Attorney how treats That is the General significant authority pursuant “exercis[e] attorneys general Assistant “fre- them. laws of the See to the United States.” help plead- quently” special counsel draft Accounting Free Enter. Fund v. Pub. Co. sign on as co-counsel ings, sometimes Bd., 9, n. Oversight U.S. & “particularly complex” a or when sensitive (2010). L.Ed.2d 706 24R. 21. Assis- case demands it. See Dictio Congress did not deviate from the attorneys even in for general tant stand nary drafting Act when Fair Debt (and special counsel for special counsel I respect Act. Collection Practices would attorneys general) illness assistant when Gregory’s choice that that command im- or distance makes travel strikes .when any ambiguity in the statute construed be replacement even if the has not practical, way not how does interfere with Id.; formally assigned been the debt. the State to handle this core state chooses Gen., 132 Shapiro Attorney see v. Ohio function: debt collection. 1232, 1235 App.3d

Ohio 725 N.E.2d II. (1999). surprise It come thus should as no Attorney his requires if the Prac- Even Fair Debt Collection agents to use his official debt-collection tices Act somehow covered debt-collection context, stationery. R. at 2. In this by special efforts counsel behalf agent his principal’s who uses letter- State, plaintiffs problem. face another truth; say he speaks head does special The Act does not transform the misleading. Attorney anything counsels’ use of the Ohio Gener- false or plaintiffs’ theory liability agents, his him represent Consider in debt- 1692e(9). provi- That related affairs. under U.S.C. prohibits sion the use of letters “simu- An analogy point. Many makes in- represented” or “falsely ]” are to be late! agents surance are contrac- authorized, issued, ap- or “documents] Cochran, Weary tors. See State, proved by” a or that “create!] (6th Cir.2004). agents Some insurance source, impression as to au- [their] false separately' themselves incorporated.' thorization, or Id. A approval.” document eye But no one bats an when an insurance letterhead, Attorney General’s it agent working John Doe Insurance true, impression doubt gives is no that Agency, Inc. Nationwide uses Mutual In- it comes from the General. But surance Co. letterhead when selling Na- dunning counsel’s letters do come products tionwide insurance on Nation- plaintiffs

from the And General. nothing wide’s behalf. Just there is produced any have not evidence that these remotely misleading using untrue or about scope counsel exceeded their letterhead, is nothing remotely there under authority debt-collection state law untrue or about misleading using this let- guidance. or the terhead. Plaintiffs offer several theories to resist plaintiffs’ theory Now consider of liabili- this Theory conclusion. one: The letter- 1692e(14). ty pro- under 15 U.S.C. That head misrepresents counsel’s au- prohibits vision debt collectors from using thority law purportedly because state business, “any company, organization prohibits special from using other than name the true name of the debt Attorney General’s letterhead to collect business, company, organiza- collector’s these plaintiffs debts. But offer no case- that, argue tion.” Plaintiffs employing law to that top legal effect. And Ohio’s letterhead, the General’s official, Attorney General, the has said “use” a than counsel “name other the true requires otherwise. He all coun- of their Wrong again. name” law firms. performing sel debt collection on his be- 1692e(14) Nothing prohibits § about spe- letterhead, half to use his whether in the counsel affiliating cial from themselves unpaid context of taxes or other state the Attorney

with Office of the Ohio Gen- Notably, debts. See R. plaintiffs 5 at Although eral. says the statute never argue Attorney do not that the General is, a “true its import what name” is has violated state law. See R. at 3 A straightforward: may debt collector not (affirmatively waiving the argument). In about his lie institutional affiliation. As this setting, private law firm cannot Commission, Federal the Trade one of the plausibly tagged liability be with under agencies responsible enforcing federal misleading the Act for false or acts when Act, recognizes, the a debt collector complies it with the directions of the multiple use names his various affairs as- top legal State’s official about a matter of as the names long misrepresent “do[ ] only thing state law. The that could be identity his the deceive consumer.” setting false or this misleading would Commentary Fair Staff on the Debt Col- dunning to send out letters on be the law Act, 50,097, Fed.Reg. Practices lection stationery. firm’s (Dec. 1988). 50,107 prin- Here too the Theory cipal-agent relationship resolves the dis- two: The letterhead tricks debt- pute. Special may lawfully believing they being counsel use ors into are the contacted Attorney because, by Attorney they General’s letterhead the when dre in as General turns on the creditоr possibility Another else.

fact someone being contacted An official com- Special itself: the State of Ohio. That make sense either. does not it when could intimidate munication from the State counsel are the collection, agents' his into unsophisticated thinking as consumer comes to debt an much to invoke possess just authority failing to pay the this consequences attorney general debts) (as his as an assistant name private to opposed employees. It makes no of his justified another fear is more severe. But that special counsel are deemed difference that anything unsophisticated. From the but contract, independent contractors consumer, debts of a owed perspective law: principle agency thanks to basic (and do con- governments) have Ohio other principal’s employ- A be a person need not by debts owed to sequences not shared agent. “[Njothing principal’s ee be example, parties. For the State private in- about contractor the title a taxpay- it due from may deduct what is being someone variably precludes from refund, the er’s whether refund comes agent appropriate circumstances.” under Government, State, from Federal Hudson, United States v. F.3d See, government. e.g., or a local ‍‌​​​​‌‌‌‌​​​‌​​‌‌‌​‌​​‌​​‌‌​​​‌‌‌​‌‌​‌​‌‌​​​​‌​​‍Ohio Cir.2007) (citing Restatement 5703.77(D)(credit § account bal- Rev.Code (1958)). (Second) § 2 Agency cmt. b (financial ances); institutions id. 5726.31 For it does not matter wheth- inquiry, (income tax); tax); §id. 31 C.F.R. 5747.12 er work in the (federal tax). That 285.8 not true building or their office General’s office own respect private debts. Debts owed with they use building, whether governments priority also take over comput- or their computers own probate private pro- most debts state ers, they are At- whether insured ceedings. Ohio Rev.Code by their torney policies. General or own 2117.25(A). special consequences whether only question matters is Act explain why bars debt debts General’s debt- exercise with a collectors State from unaffiliated agents. They his do. powers collection using the name to scare debtors State’s Theory three: The letterhead confuses itself paying. doing into When the State thinking that owed to debtors into debts however, demanding, nothing about significant are more State of Ohio than resulting fear misleads. And when private entity to a such as a debt owed debtors, special counsel communicate spell bank. Plaintiffs do not out shoes, just they stand in the State’s intimidation, alleged a source of this but stand in Attorney would to mind. possibilities few come One is pursued delinquent if he State’s shoes printed affiliation the let- institutional only thing debtors The mislead- himself. DeWine, “Mike Ohio terhead: in be to ing setting suggest this would Appendix. General.” But that is alone) (through firm letterhead a law conveyed same institutional affiliation this was debt. E.g., id. signature the letters’ blocks. that the (“Outside possibility The last use of the Attorney Gener- Counsel letterhead evokes un Office.”). al’s Plaintiffs conceded at argu- justified fears: fear of the Gener- ment the Act does not bar delaying]” a “stop[pingj pending al referencing in job counsel from their title being at or fear bankruptcy, R. 48-2 their content signatures. letterhead’s crime, charged R. 48-3 at 2. But cognizable supply thus cannot basis milquetoast neither of the letters this claim. Heredia, prosecution, threatens criminal record civil the Philadelphia Municipal Court penalties, appointed action whatsoever. See defendant Edward Green as a Appendix. officer,” The letter to Pamela Gillie “landlord and tenant as state law simply arrangements do, invites her to “make authorized it to him ordered pay” satisfy obligation if she cannot her delinquency deliver notices on the Court’s full, while the letter to Hazel Meadows behalf. Id. 395. Recognizing simply her current “officer,” discloses balance owed. Green as an the Third Circuit Id. Not sophisticated even the least con- plaintiffs’ turned aside claims under the anything sumer could infer from these let- Fair Debt Collection Practices Act’s officer reality ters other than the exemption. these were To hold place otherwise would indeed state debts. Green “in the anomalous position being exposed personal monetary liability for Theory four: The letterhead misleads deceptively giving the impression that he debtors, thinking into acting was as an officer of the court de- are not associated with the State when spite the fact that his actions had True, fact are. Office indeed been authorized that court.” Id. Attorney General has received calls from (Stern, J., at 396 concurring). As for Pe- special-counsel debtors worried that a dun- Servs., L.P., ter v. GC 310 F.3d 344 ning letter is a scam. But that implies the Cir.2002), the Fifth Circuit never consid- say enough letters do not tight- about how relationship ered the govern- between the ly knit the General and ment and the defendants and thus never implication counsel are—an that contra- agency question presented considered the plaintiffs’ dicts theory liability. entire here. All of this explain why only majority seeing things differently, I circuit to confront an analogous govern- respectfully dissent. practice reject- mental debt-collection has plaintiffs’ argument. ed See Heredia v.

Green, (3d Cir.1981). Appendix 667 F.2d 392 In SCHLAUD; Gross;

Carrie Edward J. Gross; Peggy Mashke; Nora I. Diana Orr, similarly situated, and others Plaintiffs-Appellants, SNYDER, al., Defendants, Rick et

Case Details

Case Name: Pamela Gillie v. Law Office of Eric A. Jones

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 8, 2015

Citation: 785 F.3d 1091

Docket Number: 14-3836

Court Abbreviation: 6th Cir.