In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 06-2130 to 2132, 06-2134, 06-2157
TAMMY A. EVORY, et al., individually and on behalf of all
others similarly situated,
                                      Plaintiffs-Appellants,
                            v.

RJM ACQUISITIONS FUNDING L.L.C., et al.,
                                               Defendants-Appellees.
                          ____________
            Appeals from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
     Nos. 1:04-cv-2016-DFH-TABH-TAH, 05-cv-0140-DFH-TAB,
             05-cv-0216-DFH-TAB, 05-cv-0218-DFH-TAB,
          05-cv-0794-DFH-TAB—David F. Hamilton, Judge.
                          ____________

No. 06-2271
KELLY LAUER and KARLA LAUER,
                                               Plaintiffs-Appellants,
                                  v.

MASON, SILVER, WENK & MISHKIN, LLC, et al.,
                                               Defendants-Appellees.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 05 C 3911—George W. Lindberg, Judge.
                          ____________
2                                                 Nos. 06-2130, et al.

No. 06-3129
KEVIN I. CAPTAIN,
                                                 Plaintiff-Appellant,
                                  v.

ARS NATIONAL SERVICES, INC.,
                                                 Defendant-Appellee.
                           ____________
              Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
       No. 1:05-cv-1515-DFH-TAB—David F. Hamilton, Judge.
                           ____________

Nos. 06-3162, 06-3327, 06-3439, 06-3446
PHILIP JACKSON, et al., individually and on behalf of all
others similarly situated,
                                       Plaintiffs-Appellants,
                              v.

NATIONAL ACTION FINANCIAL SERVICES, INC., et al.,
                                              Defendants-Appellees.
                           ____________
            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          Nos. 04 C 1805, 04 C 5056, 05 C 0724, 05 C 3759—
     Ruben Castillo, Judge, and James F. Holderman, Chief Judge.
                           ____________
    ARGUED SEPTEMBER 20, 2007—DECIDED OCTOBER 23, 2007
                           ____________
Nos. 06-2130, et al.                                      3

  Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
  POSNER, Circuit Judge. We have consolidated for decision
four intertwined cases that present nine questions under
the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692
et seq., several of which have engendered considerable
controversy at the circuit level and even some circuit
splits. We shall first try to answer the questions and then
indicate the disposition of each of the appeals that follows
from our answers.
  Here are the questions:
  1. Whether, if the consumer (as the statute refers to the
putative debtor) is represented by a lawyer, a debt col-
lector must give the same written notice to the lawyer
that section 1692g would require were the consumer
unrepresented and the notice sent directly to him.
  2. Whether communications to lawyers are subject to
sections 1692d through 1692f, which forbid harassing,
deceptive, and unfair practices in debt collection. Compare
Sayyed v. Wolpoff & Abramson, 

(4th Cir. 2007),
answering yes, with Guerrero v. RJM Acquisitions LLC,
No. 05-15121, 

(9th Cir. Aug. 23, 2007)
(per curiam), and Kropelnicki v. Siegel, 

, 128
(2d Cir. 2002), both answering no.
  3. Whether, if the answer to question 2 is yes, the stan-
dard applicable to determining whether a representation is
false, deceptive, or misleading under section 1692e is the
same whether the representation is made to the lawyer
or to his client.
  4. Whether a settlement offer contained in a letter from
the debt collector to a consumer is lawful per se under
section 1692f. Compare Lewis v. ACB Business Services, Inc.,
4                                          Nos. 06-2130, et al.

, 398-400 (6th Cir. 1998) (yes), with Goswami v.
American Collections Enterprise, Inc., 

, 495 (5th
Cir. 2004) (no).
  5. If it is not per se lawful, whether its lawfulness
should be affected by whether it is addressed to a lawyer,
rather than to the consumer directly.
  6. Whether there should be a safe harbor for a debt
collector accused of violating section 1692e by making
such an offer.
   7. Again, if such a letter is not per se lawful, what type
of evidence a plaintiff must present to prove that a set-
tlement offer violates section 1692e.
  8. Whether the determination that a representation is
or is not false, deceptive, or misleading under section 1692
is always to be treated as a matter of law. Compare
McMillan v. Collection Professionals, Inc., 

, 759
(7th Cir. 2006); Taylor v. Cavalry Investment, LLC, 

, 575 (7th Cir. 2004), and Walker v. National Recovery, Inc.,

, 502, 504 (7th Cir. 1999) (no), with Wilson v.
Quadramed Corp., 

, 353 n. 2 (3d Cir. 2000), and
Terran v. Kaplan, 

, 1432-33 (9th Cir. 1997) (yes).
  9. Whether, if that determination is not always a matter
of law, nevertheless a charge under section 1692e can
sometimes be dismissed on the pleadings on the ground
that the challenged representation was, as a matter of law,
not false or misleading.
  The questions thus fall into three overlapping groups.
The first is the application of the Fair Debt Collection
Practices Act to lawyers (questions 1 through 3, and 5); the
second is the proper treatment under the Act of settle-
ment offers (questions 4 through 7); and the last (questions
Nos. 06-2130, et al.                                       5

8 and 9) concerns the role of Fed. R. Civ. P. 12(c) in decid-
ing claims of violation of section 1692e.
  Section 1692g provides:
    (a) Notice of debt; contents
    Within five days after the initial communication with
    a consumer in connection with the collection of any
    debt, a debt collector shall, unless the following infor-
    mation is contained in the initial communication or the
    consumer has paid the debt, send the consumer a
    written notice containing—
        (1) the amount of the debt;
        (2) the name of the creditor to whom the debt is
        owed;
        (3) a statement that unless the consumer, within
        thirty days after receipt of the notice, disputes
        the validity of the debt, or any portion thereof,
        the debt will be assumed to be valid by the debt
        collector;
        (4) a statement that if the consumer notifies the
        debt collector in writing within the thirty-day
        period that the debt, or any portion thereof, is
        disputed, the debt collector will obtain verification
        of the debt or a copy of a judgment against the
        consumer and a copy of such verification or judg-
        ment will be mailed to the consumer by the debt
        collector; and
        (5) a statement that, upon the consumer’s written
        request within the thirty-day period, the debt
        collector will provide the consumer with the name
        and address of the original creditor, if different
        from the current creditor.
6                                        Nos. 06-2130, et al.

(There are additional subsections, but they do not require
discussion.) The required written notice must be sent to
“the consumer,” that is, to the person claimed to owe a
debt. The consumer’s lawyer is not that person. But if
the debt collector knows that the consumer is repre-
sented by a lawyer, then (with immaterial exceptions) he
may not communicate with the consumer directly.
§ 1692c(a)(2). He must go through the lawyer. The lawyer
receives the notice and shares it with, or explains it to,
his client. Hence the debt collector is communicating
with the consumer within the meaning of the Act,
which defines “communication” as “the conveying of infor-
mation regarding a debt directly or indirectly to any person
through any medium.” § 1692a(2) (emphasis added). The
lawyer is both ”any person” and “any medium.”
  It would be passing odd if the fact that a consumer
was represented excused the debt collector from having
to convey to the consumer the information to which the
statute entitles him. For example, sections 1692g(a)(1)
and (2) provide that the required notice must state the
amount of the debt and the name of the creditor. Is it to be
believed that by retaining a lawyer the debtor disentitles
himself to the information? Or that the debt collector,
though knowing that the debtor is represented, can com-
municate directly with him in defiance of the principle that
once a party to a legal dispute is represented, the other
party must deal with him through his lawyer, and not
directly? We conclude that any written notice sent to the
lawyer must contain the information that would be re-
quired by the Act if the notice were sent to the consumer
directly. National Consumer Law Center, Consumer
Credit Law Manual § 8.02[5][b] (2004); cf. Heintz v. Jenkins,

(1995).
Nos. 06-2130, et al.                                        7

   The next question is whether debt collectors can, with-
out liability, threaten, make false representations to, or
commit other abusive, deceptive, or unconscionable acts
against a consumer’s lawyer, in violation of sections 1692d,
e, or f. These sections do not designate any class of persons,
such as lawyers, who can be abused, misled, etc., by debt
collectors with impunity. Section 1692d forbids “any
conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the col-
lection of a debt” (emphasis added). Section 1692e forbids
a debt collector to “use any false, deceptive, or mislead-
ing representation or means in connection with the col-
lection of any debt.” And section 1692f forbids a debt
collector to “use any unfair or unconscionable means
to collect or attempt to collect any debt.”
   It is true that a lawyer is less likely to be deceived,
intimidated, harassed, and so forth (for simplicity, we
shall assume that only deception is alleged) than a con-
sumer. But that is an argument not for immunizing prac-
tices forbidden by the statute when they are directed
against a consumer’s lawyer, but rather for recognizing
that the standard for determining whether particular
conduct violates the statute is different when the con-
duct is aimed at a lawyer than when it is aimed at a
consumer.
  The courts have ruled that the statute is intended for the
protection of unsophisticated consumers (sophisticated
consumers presumably do not need its protection), so that
in deciding whether for example a representation made
in a dunning letter is misleading the court asks whether
a person of modest education and limited commercial
savvy would be likely to be deceived. Olson v. Risk Manage-
ment Alternatives, Inc., 

, 512-13 (7th Cir. 2004).
8                                          Nos. 06-2130, et al.

The standpoint is not that of the least intelligent consumer
in this nation of 300 million people, Chuway v. National
Action Financial Services, Inc., 

, 948-49 (7th Cir.
2004); Gammon v. GC Services Ltd. Partnership, 

,
1257 (7th Cir. 1994); cf. Clomon v. Jackson, 

,
1319 (2d Cir. 1993), but that of the average consumer in
the lowest quartile (or some other substantial bottom
fraction) of consumer competence. This is implicit in the
rule that a plaintiff cannot withstand summary judgment
just by presenting his affidavit that he was confused. Taylor
v. Cavalry Investment, 

, 365 F.3d at 574-75; Pettit
v. Retrieval Masters Creditors Bureau, Inc., 

,
1061-62 (7th Cir. 2000). He must show that he is repre-
sentative of the protected group. Chuway v. National Action
Financial Services, 

, 362 F.3d at 948.
  But if the debt collector has targeted a particularly
vulnerable group—say, consumers who he knows have
a poor command of English—the benchmark for deciding
whether the communication is deceptive would be the
competence of the substantial bottom fraction of that group.
Cf. U.S.S.G. § 3A1.1 and Application Note 2; United States
v. Bragg, 

, 399 n. 16 (7th Cir. 2000); United
States. v. Grimes, 

, 638 (7th Cir. 1999).
  By the same token, the “unsophisticated consumer”
standpoint is inappropriate for judging communications
with lawyers, Dikeman v. National Educators, Inc., 

(10th Cir. 1996), just as it is inappropriate to fix a
physician’s standard of care at the level of that of a med-
ical orderly. W. Page Keeton et al., Prosser & Keeton on the
Law of Torts § 32, p. 185 (5th ed. 1984). But what should
the standard be? Most lawyers who represent consumers
in debt collection cases are familiar with debt collection
law and therefore unlikely to be deceived. But sometimes
Nos. 06-2130, et al.                                        9

a lawyer will find himself handling a debt collection
case not because he’s a specialist but because a friend or
relative has asked him to handle it. His sophistication
in collection matters would be less than that of the special-
ist practitioner but much greater than that of the average
unsophisticated consumer. He would not have to be an
expert on the Fair Debt Collection Practices Act to be able
to look it up and discover what information sections
1652g(a)(3)-(5) require be disclosed to the consumer,
and then compare the requirements with the content of
the communication that he has received on his client’s
behalf. Since, therefore, most lawyers who represent
consumers in debt-collection cases are knowledgeable
about the law and practices of debt collection, since those
who are not should be able to inform themselves suf-
ficiently to be able to represent their consumer clients
competently, and since the debt collector cannot be ex-
pected to know how knowledgeable a particular con-
sumer’s lawyer is, we conclude that a representation by
a debt collector that would be unlikely to deceive a com-
petent lawyer, even if he is not a specialist in consumer
debt law, should not be actionable.
  We have assumed for the sake of simplicity that the
communication to the lawyer is alleged to be deceptive;
what if instead it is alleged to be false or misleading, terms
also found in section 1692e? “Misleading” is similar to
“deceptive,” except that it can be innocent; one intends
to deceive, but one can mislead through inadvertence. A
sophisticated person is less likely to be either deceived or
misled than an unsophisticated one. That is less true if a
statement is false. A false claim of fact in a dunning letter
may be as difficult for a lawyer to see through as a con-
sumer. Suppose the letter misrepresents the unpaid
balance of the consumer’s debt. The lawyer might be
10                                       Nos. 06-2130, et al.

unable to discover the falsity of the representation with-
out an investigation that he might be unable, depending
on his client’s resources, to undertake. Such a misrep-
resentation would be actionable whether made to the
consumer directly, or indirectly through his lawyer.
  We move now from the lawyer cases to the cases of
settlement offers communicated directly to consumers,
where there is no lawyer in the picture. But later we
shall have to bring the lawyer back into the picture in
order to round out our discussion of the difference be-
tween consumers and lawyers as recipients of potentially
misleading statements from debt collectors.
   It is apparently common for debt collectors to send
letters to consumers that say such things as (these ex-
amples are all taken from the cases before us) “we would
like to offer you a unique opportunity to satisfy your
outstanding debt”—“a settlement of 25% OFF of your
current balance. SO YOU ONLY PAY $[___] In ONE
PAYMENT that must be received no later than 40
days from the date on this letter.” Or “TIME’S A
WASTIN’!. . .Act now and receive 30% off…if you pay by
March 31st.” Or we are “currently able to offer you a
substantial discount of 50% off your Current Balance if we
receive payment by 05-14-2004”(emphases in original). There
is nothing improper about making a settlement offer. The
concern is that unsophisticated consumers may think
that if they don’t pay by the deadline, they will have
no further chance to settle their debt for less than the full
amount; for the offers are in the idiom of limited-time or
one-time sales offers, clearance sales, going-out-of-business
sales, and other temporary discounts. In fact debt collec-
tors, who naturally are averse to instituting actual col-
lection proceedings for the often very modest sums in-
Nos. 06-2130, et al.                                       11

volved in the consumer debt collection business, fre-
quently renew their offers if the consumer fails to accept
the initial offer.
   The objection to allowing liability to be based on such
offers is that the settlement process would disintegrate
if the debt collector had to disclose the consequences of
the consumer’s rejecting his initial offer. If he has to say,
“We’ll give you 50 percent if you pay us by May 14, but
if you don’t, we’ll probably offer you the same or even
better deal later, and if you refuse that, we’ll probably
give up and you’ll never have to pay a cent of the debt
you owe,” there will be no point in making offers. As in
previous cases in which we have created safe-harbor
language for use in cases under the Fair Debt Collection
Practices Act, see Veach v. Sheeks, 

, 693-94
(7th Cir. 2003); Miller v. McCalla, Raymer, Padrick, Cobb,
Nichols, & Clark, L.L.C., 

, 876 (7th Cir. 2000);
Bartlett v. Heibl, 

(7th Cir. 1997); cf. Diaz v.
Prudential Ins. Co. of America, 

, 637 (7th Cir.
2005); Herzberger v. Standard Ins. Co., 

, 331 (7th
Cir. 2000), we think the present concern can be ade-
quately addressed yet the unsophisticated consumer
still be protected against receiving a false impression of
his options by the debt collector’s including with the
offer the following language: “We are not obligated to
renew this offer.” The word “obligated” is strong and
even the unsophisticated consumer will realize that there
is a renewal possibility but that it is not assured.
  This is not to suggest that in the absence of safe-harbor
language a debt collector is per se liable for violating
section 1692 if he makes the kind of settlement offer that
we quoted. We see a potential for deception of the unso-
phisticated in those offers but we have no way of deter-
12                                         Nos. 06-2130, et al.

mining whether a sufficiently large segment of the unso-
phisticated are likely to be deceived to enable us to con-
clude that the statute has been violated. For that,
evidence is required, the most useful sort being the kind
of consumer survey described in Johnson v. Revenue Man-
agement Corp., 

, 1060-61 (7th Cir. 1999); see
also Pettit v. Retrieval Masters Creditors Bureau, 

,
211 F.3d at 1062.
   Other circuits, perhaps less kindly disposed to survey
evidence than we, treat the deceptive character of a
debt collector’s communication as a question of law, so
that if the communication is not deceptive on its face,
the plaintiff is forbidden to try to show that it would be
likely to deceive a substantial number of its intended
recipients. We disagree with that position. The intended
recipients of dunning letters are not federal judges, and
judges are not experts in the knowledge and understand-
ing of unsophisticated consumers facing demands by
debt collectors. We are no more entitled to rely on our
intuitions in this context than we are in deciding issues
of consumer confusion in trademark cases, where the use
of survey evidence is routine.
  But we emphasize that survey evidence in debt-collec-
tion as in trademark cases must comply with the prin-
ciples of professional survey research; if it does not, it is
not even admissible, Fed. R. Evid. 702; Citizens Financial
Group, Inc. v. Citizens National Bank of Evans City, 

(3d Cir. 2004); Scott Fetzer Co. v. House of Vacuums Inc.,

(5th Cir. 2004); Starter Corp. v. Converse, Inc.,

, 296-97 (2d Cir. 1999), let alone probative of
deception. We are exceedingly doubtful that any lawyer
involved in representing debtors would be deceived by
the settlement offers made by debt collectors, and doubt
Nos. 06-2130, et al.                                       13

therefore that any cases based on such offers could sur-
vive summary judgment or even a motion to dismiss
were the offer directed to the consumer’s lawyer rather
than to the consumer. This illustrates our earlier point
about the importance of distinguishing between lawyers
and unsophisticated consumers in applying section 1692e.
   The last question presented by these cases is whether
a claim of deception can ever be rejected in this circuit on
the pleadings, since we treat issues of deception as ones
of fact rather than of law. The answer is yes. A plain-
tiff might rest on the text of the communication, and
have no other evidence to offer, and then if there was
nothing deceptive-seeming about the communication the
court would have to dismiss the case. Taylor v. Cavalry
Investment, L.L.C., 

(“if it is ap-
parent from a reading of the letter that not even ‘a signifi-
cant fraction of the population’ would be misled by it . . . ,
the court should reject it without requiring evidence
beyond the letter itself”); McMillan v. Collection Profession-
als, 

, 455 F.3d at 760 (“undoubtedly, there will
be occasions when a district court will be required to
hold that no reasonable person, however unsophisticated,
could construe the wording of the communication in a
manner that will violate the statutory provision”). Or the
defendant might have used clear statutory language, as
in Jang v. A.M. Miller & Associates, 

, 483-84
(7th Cir. 1997), or our safe-harbor language. There might
also be a case in which a false or deceptive statement
clearly was immaterial, as in Gutierrez v. AT&T Broadband,
LLC, 

, 738-40 (7th Cir. 2004); see also Pettit v.
Retrieval Masters Creditor Bureau, 

, 211 F.3d at
1060-62, or was clarified elsewhere, as in McStay v. I.C.
System, Inc., 

, 191 (2d Cir. 2002), or in which a
14                                         Nos. 06-2130, et al.

statement claimed to be false was obviously true, as in
Taylor v. Cavalry Investment, 

, 365 F.3d at 575-76.
   Having answered the questions that we listed at the
beginning of our opinion, we can be brief in discussing
our four cases. In Lauer, the consumer was represented
by a lawyer. The defendant debt collector did not send
either the lawyer or his client the written notice required
by section 1692g, but instead sent the lawyer a letter
that the plaintiff characterizes as coercive because it
threatened to dispose of property of the plaintiff that
had a purely sentimental value, such as scrapbooks, a
wedding gown, and a videotape of the arrival of his
adopted child from Korea. The plaintiff doesn’t explain
which subsection of section 1692 the threat violates, but
it could well violate d, e, f, or indeed all three. The dis-
trict court dismissed the complaint on the ground that
communications with a consumer’s lawyer are beyond
the reach of the Fair Debt Collection Practices Act. That
was error.
   The defendant in Lauer also argues that if the initial
communication from the debt collector is to the consumer’s
lawyer rather than to the consumer himself, the notice
requirement is not triggered. If you glance back at sec-
tion 1692g(a) you will see that it says that the written
notice is required to be sent “five days after the initial
communication with a consumer.” The argument is that if
there is no letter sent first (“initial communication”)
directly to the consumer, but instead the initial communi-
cation is to the consumer’s lawyer, the condition for
requiring the subsequent written notice containing speci-
fied information is not satisfied and therefore such a
notice need never be sent either to the lawyer or to the
consumer. All that this argument shows is how unsound
it would be to suppose that a communication to a per-
Nos. 06-2130, et al.                                       15

son’s lawyer is not a communication to the person. It
would make a consumer who had a lawyer worse off
than one who did not, because neither he nor his lawyer
would have a right to any of the information that the
statute requires be disclosed to the consumer.
  In Captain, before realizing that the consumer was
represented, the defendant sent him a letter offering a
30 percent discount off the face amount of the debt, pro-
vided payment was received by a specified date. The
plaintiff claims that the letter violated section 1692e.
Shortly afterward, his lawyer called the defendant and
was told that if the debt wasn’t paid within two weeks of
the date of the initial collection letter (a deadline that had
already passed), a $15 daily charge would be added to
the account balance until the debt was paid in full. Such a
charge, equivalent to an interest rate of 730 percent a
year on the unpaid balance of the debt, would violate
Indiana law. See Ind. Code §§ 24-4.5-2-203.5, 207(3).
Although a violation of state law is not in itself a violation
of the federal Act, Beler v. Blatt, Hasenmiller, Leibsker &
Moore, LLC, 

, 473-74 (7th Cir. 2007), a threat
to impose a penalty that the threatener knows is
improper because unlawful is a good candidate for a
violation of sections 1692d and e. The district court dis-
missed the complaint for failure to state a claim: the
settlement-offer charge on the ground that such offers are
per se lawful under the Act and the challenge to the
lawfulness of the $15 a day representation because it was
made to a lawyer. Both rulings were erroneous.
  Evory and Jackson, the last two cases (actually sets of
cases, but that is of no moment), are pure settlement-offer
cases—there were no communications to lawyers. But
they are importantly different. In Evory the district court
16                                       Nos. 06-2130, et al.

dismissed the complaint, and that was error. But in Jackson
the court granted summary judgment for the defendant.
Much of the judge’s opinion tracks the discussion in
cases that hold that the kind of settlement offer involved
in these cases are nondeceptive per se, and that is wrong.
But the judge was willing to consider the survey evidence
that the plaintiff had introduced. He concluded that it
did not show that the settlement offer was deceptive. He
was right and indeed should have ruled the evidence
inadmissible. The plaintiff’s lawyer at the argument of the
appeal conceded that it was not a good survey. We would
put the matter more strongly. The respondents in the
survey were shown a letter similar to the one the plaintiff
had received. The key question they were asked was, “Let’s
say the person getting this letter does not accept the
settlement offer by the deadline date. Do you think that
person would feel it is a limited-time offer, or it is not a
limited-time offer?” By referring to “deadline date,” the
questioner signaled that it was a limited-time offer. Lead-
ing questions in surveys are improper. E.g., Scott Fetzer Co.
v. House of Vacuums 

, 381 F.3d at 488. And
“limited-time offer” was not defined. Nor should the
respondents have been asked what they thought some
other recipient of the letter would “feel,” especially since
they were given no information about the hypothetical
recipient. They should simply have been asked, “What do
you think would happen if you didn’t accept the offer? Do
you think it would be renewed or extended? Or do you
think this would be your last chance to get a discount off
the amount owed?”
  There is compelling evidence that the offers in this and
the other cases were not final offers. But that means only
that if the offers were understood as such by the targeted
Nos. 06-2130, et al.                                          17

recipients, they were deceptive. The anterior issue is
whether they were likely to be understood as such by a
substantial number of unsophisticated consumers. Maybe
they were, but some evidence beyond the face of the
offer was required to establish a prima facie case, and it
was not presented.
  So Jackson is affirmed; the other three decisions are
reversed and the cases remanded for further proceedings
consistent with this opinion.

A true Copy:
        Teste:

                              _____________________________
                              Clerk of the United States Court of
                                Appeals for the Seventh Circuit




                       USCA-02-C-0072—10-23-07