FRIEDMAN, District Judge.
This is a class action brought under the Fair Debt Collection Practices Act ("FDCPA" or "the Act"), 15 U.S.C. § 1692 et seq. Plaintiff David Tourgeman contends that the defendants — Collins Financial Services, Inc.; Paragon Way, Inc.; Nelson & Kennard; and Collins Financial Services USA, Inc. — made false representations to him in connection with their efforts to collect a purported debt.
David Tourgeman bought a Dell computer. At the time of the purchase, Tourgeman
Collins transferred Tourgeman's file along with the other Dell Financial accounts to Collins's affiliated collection agency, Paragon Way, Inc., which mailed three letters to Tourgeman encouraging him to pay off the purported debt. Collins then referred the file to the law firm of Nelson & Kennard, which sent its own dunning letter to Tourgeman. All of these letters were mailed to addresses in California at which Paragon and Nelson & Kennard believed Tourgeman might reside. In fact, the addresses belonged to Tourgeman's parents, and Tourgeman himself remained resident in Mexico. After receiving no response to the letters, Nelson & Kennard filed a complaint on behalf of Collins in San Diego County Superior Court. Tourgeman retained counsel, and Nelson & Kennard eventually elected to dismiss the action. It was during this state court litigation that Tourgeman learned of the several letters that had been mailed to him at his parents' addresses. See Tourgeman v. Collins Fin. Servs., Inc., No. 08-cv-1392, 2011 WL 3176453, at *6 (S.D.Cal. July 26, 2011).
Tourgeman then went on the offensive. He filed this lawsuit in federal district court, alleging that Collins, Paragon Way, and Nelson & Kennard had violated the FDCPA, as well as California law, in their efforts to collect the purported debt from him.
On appeal, Tourgeman makes two claims under the FDCPA. His main claim arises from the fact that the defendants — both in their letters and in the state court complaint — falsely identified his original creditor as "American Investment Bank, N.A.," when, in actuality, CIT Online Bank originated the loan. Tourgeman contends that this misidentification violated the Act's prohibition on the "use [of] any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Tourgeman's second claim relates to the letter sent to him by the law firm of Nelson & Kennard. He argues that the attorney who signed the letter had not been "meaningfully involved" in evaluating his case,
Nelson & Kennard first argues that Tourgeman lacks both statutory and Article III standing to assert any claims based on the collection letters, which Tourgeman admittedly never received when they were sent. The law firm contends that the FDCPA does not provide a cause of action to a consumer in Tourgeman's position, notwithstanding the statute's broad language providing that "any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person." 15 U.S.C. § 1692k(a). Nelson & Kennard further maintains that even if the FDCPA does purport to endow such consumers with a cause of action, Article III would forbid it, because consumers who never receive the offending communication have suffered no injury in fact. Tourgeman's position is that a violation of the FDCPA "in and of itself [] confers Article III standing."
"Article III of the Constitution limits federal-court jurisdiction to `Cases' and `Controversies.'" Massachusetts v. E.P.A., 549 U.S. 497, 516, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). The requirement of standing flows from this limitation. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing doctrine assures that "the litigant is entitled to have the court decide the merits of the dispute or of particular issues," Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), by demanding that he or she "possess a `direct stake in the outcome' of the case," Hollingsworth v. Perry, ___ U.S. ___, 133 S.Ct. 2652, 2662, 186 L.Ed.2d 768 (2013) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)).
To possess standing, a plaintiff must have suffered an "injury in fact," meaning "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal citations and quotation marks omitted). In addition, "there must be a causal connection between the injury and the conduct complained of ... [and] it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 560-61, 112 S.Ct. 2130 (internal citations and quotation marks omitted).
"The ... injury required by Art. III may exist solely by virtue of `statutes creating legal rights, the invasion of which creates standing.'" Id. at 578, 112 S.Ct. 2130 (quoting Warth, 422 U.S. at 500, 95 S.Ct. 2197); see also Massachusetts, 549 U.S. at 516, 127 S.Ct. 1438 ("Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." (quoting Lujan, 504 U.S. at 580, 112 S.Ct. 2130 (Kennedy, J., concurring in part and concurring in the judgment))) (internal quotation marks omitted). In cases involving statutory rights, "the particular statute and the rights it conveys [] guide the standing determination." Donoghue v. Bulldog Investors Gen. P'ship, 696 F.3d 170, 178 (2d Cir.2012); see also Hammer v. Sam's East, Inc., 754 F.3d 492, 498 & n. 3, 2014 WL 2524534, at *4 & n. 3 (8th Cir. June 5, 2014) (noting that "the actual-injury requirement may be satisfied solely by the invasion of a legal right that Congress
At the same time, "the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute." Summers v. Earth Island Inst., 555 U.S. 488, 497, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). Thus, there are limits on Congress's ability to elevate to the status of legally cognizable injuries particular types of harm that were previously not recognized in law. Lujan, 504 U.S. at 578, 112 S.Ct. 2130. As this court has observed, there are "two constitutional limitations on congressional power to confer standing." Robins, 742 F.3d at 413. "First, a plaintiff `must be among the injured, in the sense that she alleges the defendants violated her statutory rights.'" Id. (quoting Beaudry v. TeleCheck Servs., Inc., 579 F.3d 702, 707 (6th Cir.2009)) (internal quotation marks omitted). "Second, the statutory right at issue must protect against `individual, rather than collective, harm.'" Id. (quoting Beaudry, 579 F.3d at 707).
The second limitation poses no problem in this case. The personal interest in not being "the object of a misrepresentation made unlawful [by statute]," Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), assuredly is an "individual, rather than collective, harm," Beaudry, 579 F.3d at 707 (internal quotation marks omitted). The gravamen of Nelson & Kennard's argument, rather, is that Tourgeman is not truly "among the injured." That is, it contends that Tourgeman has not suffered the "actual" injury required by Article III because he never received any letter that contained the allegedly misleading representations. According to Nelson & Kennard, a consumer who never receives a dunning letter can suffer neither pecuniary nor emotional harm, nor can such a consumer be hindered in deciding how to respond to the effort to collect the debt.
The Supreme Court's decision in Havens Realty Corp. v. Coleman, however, makes clear that such pecuniary or emotional harms are not necessary to a finding of injury in fact. In Havens, the Court held that an African-American "tester" — who, by posing as an apartment hunter, aimed to ferret out violations of the Fair Housing Act ("FHA") — possessed standing to bring suit based on the defendants' falsely telling her that no apartments in a particular housing complex were available, even though the tester had no intention of actually renting an apartment from the defendant and, indeed, may well have "fully expect[ed] that he would receive false information." 455 U.S. at 374, 102 S.Ct. 1114. The Court concluded that the "alleged injury to [the plaintiff's] statutorily created right to truthful housing information" was a cognizable injury in and of itself — regardless of whether the plaintiff actually hoped to reside in the defendant's housing complex — and therefore "the Art. III requirement of injury in fact [was] satisfied." Id. at 374, 102 S.Ct. 1114 (citing Warth, 422 U.S. at 500, 95 S.Ct. 2197). The tester plaintiff possessed standing not
Similarly, we have held that where a home buyer is referred by her settlement agent to a particular title insurer as a result of a kickback deal between the agent and the insurer, the consumer suffers Article III injury even though she paid no more for the insurance than she otherwise would have. Edwards v. First Am. Corp., 610 F.3d 514, 517-18 (9th Cir. 2010), cert. granted in part, ___ U.S. ___, 131 S.Ct. 3022, 180 L.Ed.2d 843 (2011), cert. dismissed as improvidently granted, ___ U.S. ___, 132 S.Ct. 2536, 183 L.Ed.2d 611 (2012) (per curiam); accord Alston v. Countrywide Fin. Corp., 585 F.3d 753, 762-63 (3d Cir.2009) (recognizing that because Article III injury can be predicated on the violation of statutory rights, "[a] plaintiff need not demonstrate that he or she suffered actual monetary damages"); United States v. Welles-Bowen Realty, Inc., 553 F.3d 979, 989 (6th Cir.2009) ("Just as a violation of the rights of `testers' to receive `truthful information' supports standing, so does a violation of the right to receive referrals untainted by conflicts of interest." (quoting Havens, 455 U.S. at 373-74, 102 S.Ct. 1114)). More recently, we concluded that an individual had standing to sue a website operator that allegedly had published inaccurate information about him, regardless of whether the plaintiff had suffered any financial or emotional harm as a consequence. See Robins, 742 F.3d at 412-14; accord Beaudry, 579 F.3d at 707; see also In re Zynga Privacy Litig., 750 F.3d 1098, 1105 n. 5 (9th Cir.2014) (affirming Article III standing based on Facebook user's interest in maintaining the privacy of her online identification and URL information). In cases involving a variety of other federal statutes, courts regularly have held that the absence of pecuniary loss is no bar to Article III standing, if the plaintiff has alleged a violation of the rights conferred by statute. See, e.g., Hammer, 754 F.3d at 497-99, 2014 WL 2524534, at *3-4 (action under Fair and Accurate Credit Transactions Act); Donoghue, 696 F.3d at 174-80 (action under section 16(b) of Securities Exchange Act); Robey, 434 F.3d at 1211-12 (action under FDCPA); DeMando v. Morris, 206 F.3d 1300, 1303 (9th Cir.2000) (action under Truth in Lending Act).
Although Tourgeman could not have suffered any pecuniary loss or mental distress as the result of a letter that he did not encounter until months after it was sent — when related litigation was already underway — the injury he claims to have suffered was the violation of his right not to be the target of misleading debt collection communications. The alleged violation of this statutory right — like those rights at issue in Havens, Robins, and the other cases that we have noted — constitutes a cognizable injury under Article III. And "[w]hen the injury in fact is the violation of a statutory right that we inferred from the existence of a private cause of action, causation and redressability" — the two other elements of standing — "will usually be satisfied." Robins, 742 F.3d at 414. Such is the case here. The alleged violation of Tourgeman's statutory rights stems solely from the defendants' having mailed to him their collection letters, and that injury would be redressed by an award of statutory damages, which the FDCPA makes available to prevailing consumers. See 15 U.S.C. § 1692k(a)(2) (providing for "additional damages"). We conclude, therefore, that Tourgeman has constitutional standing.
Satisfied that Article III of the Constitution would not bar Congress from creating a private cause of action for a consumer in Tourgeman's position, we now turn to ask whether Congress actually has done so in the FDCPA. We start with the text of the statute.
The statute's text imposes no such requirement. Still, it is not unreasonable for Nelson & Kennard to contend that the very concept of a "representation" contemplates the presence of two parties: the party making the representation and the party to whom it is made. See, e.g., WEBSTER'S THIRD NEW INT'L DICTIONARY 1926 (1993) (defining "represent" as meaning, inter alia, "to set forth or place before someone (as by statement, account, or discourse)," and "[to] exhibit (a fact) to another mind in language" (emphases added)); BLACK'S LAW DICTIONARY 1415 (9th ed.2009) (defining "representation" as meaning, inter alia, "[a] presentation of fact — either by words or by conduct — made to induce someone to act ... [especially] the manifestation to another that a fact, including a state of mind, exists" (emphases added)). But these definitions do not speak to the nature of the intended recipient's role in the transaction, and the statutory text itself is aimed squarely at the debt collector's conduct, rather than at its effect on the consumer. See 15 U.S.C. §§ 1692e & k(a) (proscribing the "use [of] any false, deceptive, or misleading representation ... with respect to any person" (emphasis added)). A debt collector who addresses a misleading dunning letter to a consumer as a means of collecting that consumer's debt "use[s]" an unlawful practice "with respect to" the consumer, regardless of whether some interceding condition — such as non-receipt of the letter, or the consumer's failure to read it, or the fact that the consumer is savvy enough not to be misled by it — renders the practice ineffective.
The manner in which the majority of courts have applied the FDCPA aligns with this construction of the statute. To begin with, a consumer possesses a right of action even where the defendant's conduct has not caused him or her to suffer any pecuniary or emotional harm. E.g., Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1083 (7th Cir.2013); Robey, 434 F.3d at 1212; Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 307 (2d Cir. 2003); Baker v. G.C. Servs. Corp., 677 F.2d 775, 780-81 (9th Cir.1982). An FDCPA plaintiff need not even have actually been misled or deceived by the debt collector's representation; instead, liability depends on whether the hypothetical "least sophisticated
These interlocking statutory features demonstrate that Congress intended to achieve its goal of regulating debt collectors' conduct by motivating consumers to bring enforcement actions if they are the targets of unlawful collection efforts. And the Act's broad regulatory purpose is effectuated by measuring the lawfulness of a debt collector's conduct not by its impact on the particular consumer who happens to bring a lawsuit, but rather on its likely effect on the most vulnerable consumers — the hypothetical "least sophisticated debtor" — in the marketplace. See, e.g., Gonzales, 660 F.3d at 1061. In addition, "[b]ecause the FDCPA ... is a remedial statute, it should be construed liberally in favor of the consumer." Clark v. Capital Credit & Collection Servs. Inc., 460, F.3d 1162, 1176 (9th Cir.2006) (quoting Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002)) (omission in original). This rule of construction fortifies our conclusion that a consumer such as Tourgeman, who did not actually receive a dunning letter directed toward him at the time it was sent, nonetheless may bring an action challenging the lawfulness of that letter under the Act.
For these reasons, Tourgeman has both Article III standing and a statutory cause of action under the FDCPA.
We turn now to the merits of Tourgeman's claims, which require that we determine whether the defendants' communications were "misleading" under section 1692e of the FDCPA. Although Tourgeman levels the same basic charge against all defendants — that his original creditor, CIT Online Bank, was falsely identified to be American Investment Bank — there are a few distinctions between the various challenged documents and these differences warrant dividing our separate discussion of them. We first address the Paragon Way letters, then the complaint drafted by Nelson & Kennard and filed against Tourgeman in California state court, and conclude with the letter sent by Nelson & Kennard. We exercise de novo review over a grant or denial of summary judgment. Evon, 688 F.3d at 1023-24.
The FDCPA "comprehensively regulates the conduct of debt collectors," and "is a strict liability statute." Gonzales, 660 F.3d at 1060-61; see also Clark, 460 F.3d at 1174-77 (concluding that the FDCPA holds debt collectors strictly liable). Section 1692e therefore "broadly prohibits the use of `any false, deceptive, or misleading representation or means in connection with the collection of any debt.'" Gonzales, 660 F.3d at 1061 (quoting 15 U.S.C. § 1692e). The section also provides a non-exhaustive list of sixteen practices that violate this general prohibition; Tourgeman relies on three of the subsections: 1692e(2)(A), proscribing the "false representation of the character, amount, or legal status of any debt"; 1692e(3), prohibiting the "false representation or implication that any individual is an attorney or that any communication is from an attorney"; and 1692e(10), forbidding the "use of any false representation or deceptive means to collect or attempt to collect any debt."
"In this circuit, a debt collector's liability under § 1692e of the FDCPA is an issue of law." Gonzales, 660 F.3d at 1061. The analysis is objective and "takes into account whether the `least sophisticated debtor would likely be misled by a communication.'" Id. (quoting Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010)). "The `least sophisticated debtor' standard is `lower than simply examining whether particular language would deceive or mislead a reasonable debtor.'" Id. (quoting Terran, 109 F.3d at 1432). "Most courts agree that although the least sophisticated debtor may be uninformed, naive, and gullible, nonetheless her interpretation of a collection notice cannot be bizarre or unreasonable." Evon, 688 F.3d at 1027.
In addition, "[i]n assessing FDCPA liability, we are not concerned with mere technical falsehoods that mislead no one, but instead with genuinely misleading statements that may frustrate a consumer's ability to intelligently choose his or her response." Donohue, 592 F.3d at 1034. In other words, a debt collector's false or misleading representation must be "material" in order for it to be actionable under the FDCPA. Id. at 1033. "The purpose of the FDCPA, `to provide information that helps consumers to choose intelligently,' would not be furthered by creating liability as to immaterial information because `by definition immaterial information neither contributes to that objective (if the statement is correct) nor undermines it (if the statement is incorrect).'" Id. (quoting Hahn v. Triumph P'ships LLC, 557 F.3d 755, 757-58 (7th Cir.2009)). Thus, "false but non-material representations are not likely to mislead the least sophisticated consumer and therefore are not actionable under [section] 1692e." Id.
Paragon Way mailed three letters to Tourgeman that falsely identified his original creditor as "American Investment Bank, N.A.," when in fact CIT Online Bank originated his loan. The letters also displayed an "Original Account #" that did not match Tourgeman's original CIT loan number. The first two of these letters, however, did include a "Description" line item that stated, "Dell Computer Corporation." The question presented is whether this combination of features — in particular, the letters' misidentification of Tourgeman's original creditor — rendered these letters materially misleading under section 1692e.
Nelson & Kennard maintains that despite the erroneous identification of Tourgeman's original creditor, the references to Dell in the first two Paragon Way letters were sufficient to tip off even the least sophisticated debtor about the subject matter of the collection effort. And a consumer genuinely puzzled by the mention of American Investment Bank, need only have picked up the phone to call for more information or to dispute the debt. Thus, says Nelson & Kennard, because the consumer's ability to intelligently respond to the letters would not have been adversely affected by the incorrect information, the false statements were not "material," and consequently Paragon Way did not violate the Act.
In Donohue, we held that a defendant's mislabeling of a portion of a debt as "interest... of 12%" — when in fact the sum "included pre-finance charges and interest" — did not violate section 1692e because the statement's falsity "did not undermine Donohue's ability to intelligently choose her action concerning her debt." Id. at 1034. We relied on the Seventh Circuit's decision in Hahn, which involved comparable facts. See 557 F.3d at 757 ("[T]he difference between principal and interest is no more important to the Fair Debt Collection Practices Act than the color of the paper that [the creditor] used."); see also Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643, 646 (7th Cir.2009) ("[Plaintiff] can't win simply by showing that [the debt collector's] use of the term `principal balance' is false in a technical sense; she has to show that it would mislead the unsophisticated consumer.").
By contrast, in Lox v. CDA, Ltd., 689 F.3d 818 (7th Cir.2012), the court concluded that the statement that a tribunal could
We are persuaded that, in the context of debt collection, the identity of a consumer's original creditor is a critical piece of information, and therefore its false identification in a dunning letter would be likely to mislead some consumers in a material way. Unlike mislabeling portions of a total debt as principal rather than interest — literally false, but meaningful only to the "hypertechnical" reader, see Wahl, 556 F.3d at 645 — the factual errors in Paragon Way's letters to Tourgeman could easily cause the least sophisticated debtor to suffer a disadvantage in charting a course of action in response to the collection effort. See Donohue, 592 F.3d at 1034 (a false statement violates the FDCPA if it "may frustrate a consumer's ability to intelligently choose his or her response").
The debtor who takes Paragon Way's letters at face value — either because he does not remember the details concerning his financing of a computer bought several years beforehand, or perhaps because he never knew the identity of his original creditor to begin with — might engage in a fruitless attempt to investigate the facts of this non-existent debt, in a responsible effort to determine how to most effectively respond to the collection notice. This debtor might, quite reasonably, contact American Investment Bank to obtain background information so that he can remember what had earlier transpired, or to obtain any records that the bank holds pertaining to his debt so that he can prove he already had paid it off, if he believes such is the case. But, of course, American Investment Bank would have no record of a loan agreement; and the unknown account number certainly is of no help in getting to the bottom of things. Even if the consumer eventually finds his way to learning that the letter referred to the Dell debt he had incurred with CIT Online Bank, the delay already would have cost him some portion of the thirty days that the FDCPA grants to consumers before having to respond to a collection notice, lest the debt collector be entitled to assume the validity of the debt. See 15 U.S.C. § 1692g. And such "confusion and delay in trying to contact the proper party concerning payment on [the] loan" is precisely the kind of infringement of the consumer's
By ensuring that consumers are fully and truthfully apprised of the facts and of their rights, the FDCPA enables them "to understand, make informed decisions about, and participate fully and meaningfully in the debt collection process." Clark, 460 F.3d at 1171; see also Donohue, 592 F.3d at 1033 ("The purpose of the FDCPA [is] `to provide information that helps consumers to choose intelligently.'" (quoting Hahn, 557 F.3d at 757-58)).
Nelson & Kennard repeatedly suggests that a perplexed consumer could simply place a phone call to the debt collector to clear up any confusion. But for many consumers — particularly those who do not even recognize that they have encountered false information — making such a call likely would not be their first reaction to the letter, nor does the FDCPA require that it be so. As we have previously explained, "consumers are under no obligation to seek explanation of confusing or misleading language in debt collection letters." Gonzales, 660 F.3d at 1062 (citing Fields v. Wilber Law Firm, P.C., 383 F.3d 562, 566 (7th Cir.2004)). Indeed, Nelson & Kennard's argument, taken to its furthest reach, would transform many of the FDCPA's substantive provisions into surplusage, converting any dunning letter bearing a return address and phone number into a communication not misleading by virtue of those features, See Fields, 383 F.3d at 566 (noting that the Seventh Circuit has "rejected the proposition that a debt collector could provide incomplete information in a dunning letter so long as it provided a telephone number for the debtor to call"). Interpreting materiality in such a fashion would gut the FDCPA's prohibition of misleading representations, and "[w]e must avoid a construction which renders any language of the enactment superfluous." Security Pac. Nat'l Bank v. Resolution Trust Corp., 63 F.3d 900, 904 (9th Cir.1995).
We next address the complaint prepared by Nelson & Kennard and filed against Tourgeman in California state court, which Nelson & Kennard delivered directly to Tourgeman's father, who then transmitted it to his son in Mexico. Tourgeman, 2012 WL 3731807, at *2, *8-9.
Furthermore, a consumer could be harmed by a complaint — as opposed to a dunning letter — in ways distinct yet equally problematic as those we have already discussed. For example, the consumer who engages legal counsel might be unable to accurately apprise the lawyer of the relevant circumstances, potentially leading to lost opportunities to settle the debt. And the stakes are undoubtedly higher when the consumer faces the possibility of a default judgment rather than the mere continuation of collection attempts.
Finally, we come to the letter mailed to Tourgeman by Nelson & Kennard. That letter informed him that the firm's client, Collins Financial Services, "ha[d] forwarded [his] account to this office with instructions that we take appropriate action to effect collection of the above-referenced balances due." The Nelson & Kennard letter did not mention Dell. It did reference "American Investment Bank, N.A.," but, unlike the Paragon Way letters, it did not label the bank as Tourgeman's "original creditor." Rather, both the bank's name and the same incorrect account number that appeared in Paragon's letters were placed in a "Re:" line item atop the body of the letter. There was no explanation as to the meaning or significance of these pieces of information.
Nelson & Kennard argues that the absence of a label informing Tourgeman that American Investment Bank was the original creditor somehow makes the letter less misleading than those sent by Paragon Way, because the original creditor was not "misidentified." On the contrary, Nelson & Kennard's letter gives the least sophisticated debtor even less of a clue as to how to investigate the claim being made against him, making it more likely that the consumer will waste valuable time and suffer confusion in his efforts to formulate a response. Nelson & Kennard also emphasizes that its letter does correctly identify Tourgeman's current creditor — Collins Financial Services — but, in fact, the letter simply states that
Nelson & Kennard also argues that because its letter came on the heels of the letters sent by Paragon Way — two of which mentioned Dell Computer Corporation — a consumer in Tourgeman's position would know what the letter concerned and therefore would not be misled by the absence of any reference to Dell. We need not decide whether there may be some circumstances in which it would be appropriate, in determining a dunning letter's tendency to mislead, to consider the consumer's receipt of earlier letters sent by a different debt collector. As we already have explained, Paragon Way's letters were materially misleading notwithstanding having included references to Dell. The fact that Tourgeman had been sent the misleading Paragon Way letters therefore does not help Nelson & Kennard.
Tourgeman also advances an independent ground for finding that Nelson & Kennard's dunning letter violated the FDCPA. He alleges that the lawyer who signed the Nelson & Kennard letter was not "meaningfully involved" in the evaluation of Tourgeman's case before sending a letter on law firm letterhead. The "meaningful involvement doctrine" — to which this court has once referred in passing, see Gonzales, 660 F.3d at 1063, but which we have never squarely adopted — grows out of the language in 15 U.S.C. § 1692e(3), which prohibits "[t]he false representation or implication that any individual is an attorney or that any communication is from an attorney."
The foundational case is Clomon v. Jackson, 988 F.2d 1314 (2d Cir.1993). In Clomon, the defendant worked as the part-time general counsel of a debt collection agency, and authorized the agency to send dunning letters bearing his name and a facsimile of his signature — even though he did not personally review either the individual letters or the files of the consumers to whom the letters were sent. Id. at 1316. The Second Circuit concluded that the attorney thereby violated subsection 1692e(3) because "the collection letters were not `from' [the defendant] in any meaningful sense of that word." Id. at 1320. Driving this conclusion, in part, was the court's finding that the "use of an attorney's signature implies — at least in the absence of language to the contrary — that the attorney signing the letter formed an opinion about how to manage the case of the debtor to whom the letter was sent." Id. at 1321. This construction of subsection 1692e(3) has since been adopted by four other circuits. See, e.g., Lesher v. Law Offices of Mitchell N. Kay, P.C., 650 F.3d 993, 1003 (3d Cir.2011); Kistner v. Law Offices of Michael P. Margelefsky, 518 F.3d 433, 438-41 (6th Cir.2008); Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1238 (5th Cir.1997); Avila v. Rubin, 84 F.3d 222 (7th Cir.1996). The Seventh Circuit explained the rationale for the doctrine this way: "An unsophisticated
The district court granted summary judgment to Nelson & Kennard on Tourgeman's claim under subsection 1692e(3). It assumed that the meaningful involvement doctrine was applicable, see Tourgeman, 2012 WL 3731807, at *6, perhaps because in an earlier decision in the case — when the action was before another district judge on Nelson & Kennard's motion to dismiss the complaint — that judge had adopted the doctrine. See Tourgeman, 2011 WL 3176453, at *8-9. In ruling on the summary judgment motion, however, the district court found it undisputed that the attorney who signed the collection letters was meaningfully involved, and granted judgment to Nelson & Kennard on the meaningful involvement claim. 2012 WL 3731807, at *6-7.
We need not determine whether to adopt a construction of section 1692e(3) that incorporates a requirement of meaningful involvement by an attorney who sends a dunning letter.
For the foregoing reasons, we conclude that the judgment of the district court granting judgment to Collins, Paragon Way, and Nelson & Kennard must be reversed, and that judgment should instead be entered for Tourgeman against Paragon Way and Nelson & Kennard. We express no view regarding whether Tourgeman is entitled to judgment against Collins itself, as Tourgeman's claims against that entity were based on a theory of vicarious liability that was neither decided by the district court nor briefed on this appeal. We remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
FARRIS, Circuit Judge, dissenting.
I respectfully dissent. As I view the record, the trial court got it right. I would affirm.
In any event, we conclude that the misidentification of the original creditor is independently sufficient to constitute a violation of the Act. Although the incorrect account number certainly compounds the violation, we do not determine whether that particular false statement, standing alone, would be sufficient to violate the FDCPA.
