This article was co-authored by Alice Grabe, Ethan G. Ostroff and David N. Anthony. It was originally posted on the Troutman Sanders Consumer Financial Services Law Monitor and is republished here with permission.
The United States Supreme Court declined a petition for writ of certiorari by a consumer regarding a collection letter on law firm letterhead with attorney signatures. The ruling of the United States Court of Appeals for the District of Columbia in Tawanda Jones v. David Sean Dufek, Sr. was left in place, holding that a debt collection notice by a California law firm could not have been reasonably interpreted as a threat of a lawsuit.
Jones alleged that the law firm violated the Fair Debt Collection Practices Act by sending her a letter on attorney letterhead with attorney signatures. Jones claimed that the “meaningful attorney involvement” standard applied and that the letter misrepresented the level of attorney involvement because the letter was a mass-produced form letter and could be reasonably interpreted by the least sophisticated consumer as being a threat of a lawsuit, even when legal action was not imminent.
The D.C. Circuit affirmed the district court’s ruling, saying that the law firm did not violate the FDCPA by misrepresenting the level of attorney involvement because the law firm made it clear in the letter through a disclaimer that it was acting only in its capacity as a debt collector. The disclaimer read: “Please be advised that we are acting in our capacity as a debt collector and at this time, no attorney with our law firm has personally reviewed the particular circumstances of your account.” The Court opined that a reasonable juror could not interpret the letter as constituting a threat of legal action.
Jones argued that, under the FDCPA, attorneys cannot act as debt collectors unless they conceal the fact that they are attorneys. The D.C. Circuit explained that “this is not the theory of the [FDCPA] . . .” and that to the contrary, “[t]he Act assumes that attorneys may collect debts so long as they do not mislead debtors.”
The D.C. Circuit specifically followed the Second Circuit which held in Greco v. Trauner, Cohen & Thomas, LLP, 412 F.3d 360, 364 (2005), that a letter from an attorney acting only as a debt collector is not misleading. Furthermore, the D.C. Circuit cited to Third, Fifth and Sixth Circuit decisions that have held “that a prominent and clear disclaimer stating that an attorney is acting as a debt collector is enough, but a hidden or confusing disclaimer is not.”