Lesher v. Law Offices of Mitchell N. Kay, PC

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 10-3194
______________

DARWIN LESHER

v.

LAW OFFICES OF MITCHELL N. KAY, PC;
MITCHELL N. KAY

Law Offices of Mitchell N. Kay, PC,
Appellant

______________

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-09-cv-00578)
District Judge: Hon. J. Andrew Smyser
______________

Argued April 13, 2011

BEFORE: FISHER, JORDAN, and COWEN, Circuit Judges

(Filed: June 21, 2011 )
Joann Needleman, Esq. (Argued)
Maurice & Needleman
1617 John F. Kennedy Boulevard
One Penn Center, Suite 935
Philadelphia, PA 19103

Counsel for Appellant

Cary L. Flitter, Esq.
Theodore E. Lorenz, Esq. (Argued)
Andrew M. Milz, Esq.
Lundy, Flitter, Beldecos & Berger
450 North Narberth Avenue
Narberth, PA 19072-1898

Lawrence J. Rosenn, Esq.
Krevsky & Rosen
1101 North Front Street
Harrisburg, PA 17102

Deanna L. Saracco, Esq.
76 Greenmont Drive
Enola, PA 17025

Counsel for Appellee

Tomio B. Narita, Esq.
Simmonds & Narita
44 Montgomery Street
Suite 3010
San Francisco, CA 94104

2
 Counsel for National Association of Retail
Collection Attorneys, Amicus Appellant

Richard J. Perr, Esq.
Fineman, Krekstein & Harris
1735 Market Street
Mellon Bank Center, Suite 600
Philadelphia, PA 19103

Counsel for ACA International, Amicus Appellant
______________

OPINION
______________

COWEN, Circuit Judge.

Darwin Lesher filed a complaint in the United States
District Court for the Middle District of Pennsylvania
alleging that debt-collection letters he received from the Law
Offices of Mitchell N. Kay (the “Kay Law Firm”) were
deceptive under the Fair Debt Collection Practices Act (the
“FDCPA” or the “Act”). The District Court agreed and
granted Lesher‟s motion for summary judgment. The Kay
Law Firm now appeals from the District Court‟s order. For
the reasons that follow, we will affirm.

I. Background

The Kay Law Firm is a law firm that acts as a debt
collector. On January 11, 2009, the Kay Law Firm sent a
letter to Lesher seeking to recover a debt he owed to
Washington Mutual on a home equity loan. The letter was

3
presented on the Kay Law Firm‟s letterhead, which displays
the words “Law Offices of Mitchell N. Kay, P.C.” in large
characters at the top of the page. (A040.) The letter, after
referencing Lesher‟s account with Washington Mutual, states
as follows:

Please be advised that your account, as
referenced above, is being handled by this
office.

We have been authorized to offer you the
opportunity to settle this account with a lump
sum payment, equal to 75% of the balance
due—which is $9,080.52!

Unless you notify this office within 30 days
after receiving this notice that you dispute the
validity of this debt or any portion thereof, this
office will assume this debt is valid.

If you notify this office in writing within 30
days from receiving this notice that you dispute
the validity of this debt or any portion thereof,
this office will: Obtain verification of the debt
or obtain a copy of a judgment and mail you a
copy of such judgment or verification.

If you request this office in writing within 30
days after receiving this notice, this office will
provide you with the name and address of the
original creditor, if different from the current
creditor.

4
 You are invited to visit our website
www.lawofmnk.com to resolve this debt
privately, or to write to us or to update your
personal information.

(Id.)1 After a large blank space, the letter directs Lesher to
“PLEASE ADDRESS ALL PAYMENTS TO” the “Law
Offices of Mitchell N. Kay, P.C.” at their New York address.
(Id.) Immediately below the address, the letter states:
“Notice: Please see reverse side for important information.”
(Id.) A box surrounds this notice, below which is a
detachable payment stub.

On the back, the letter sets forth four “notices,”
including the following two:

This communication is from a debt collector
and is an attempt to collect a debt. Any
information obtained will be used for that
purpose.

At this point in time, no attorney with this firm
has personally reviewed the particular
circumstances of your account.

(A041.)2

1
Paragraphs 3, 4, and 5 of the letter are the disclosures
required by 15 U.S.C. § 1692g(a)(3), (4), and (5).
2
The other two notices inform the recipient that: (1) if he is
entitled to protection under the United States Bankruptcy

5
 On February 15, 2009, the Kay Law Firm sent a
second letter to Lesher. This letter was not printed on the
same letterhead, but instead stated in smaller characters at the
top that it was from the “Law Offices of Mitchell N. Kay,
P.C.” (A042.) The letter offers the choice of a six-month
repayment plan or a settlement, and again instructs the reader
to “see reverse side for important information.” (Id.) The
back of the letter sets forth the same disclaimers as the first
letter. (A043.)

In March 2009, shortly after receiving these letters,
Lesher filed a complaint in the District Court against the Kay
Law Firm. In the complaint, Lesher alleged that the letters
violated, inter alia, section 1692e of the FDCPA, 15 U.S.C. §
1692e (1996), by misleading him to believe that an attorney
was involved in collecting his debt, and that the attorney
could, and would, take legal action against him.3

Code, the letter is not an attempt to collect, assess, or recover
a claim in violation of the Bankruptcy Code; and (2) if the
debtor sends a check with the payment coupon, the Kay Law
Firm will complete the payment by electronic debit and
destroy the check. (A041.)
3
The complaint, which was twice amended, included
additional claims arising under 15 U.S.C. §§ 1692d, 1692f,
1692g, 1692j, and 1692n. However, Lesher moved for
summary judgment as to his claims under §§ 1692e and g
only. The District Court granted summary judgment with
respect to his § 1692e claim, but denied summary judgment
with respect to his § 1692g claim. Lesher decided not to
pursue his remaining claims. The only issue presently before
this Court is whether the District Court erred in granting

6
 Following discovery, the parties filed cross-motions
for summary judgment. Upon review, the District Court
found that the January 11 and February 15, 2009 letters
plainly implied that an attorney was involved in the
collection, and implicitly threatened legal action, in violation
of § 1692e.4 Viewing the letters from the perspective of the
“least sophisticated debtor,” the District Court rejected the
Kay Law Firm‟s contention that the disclaimers on the back
of the letters mitigated the impression of potential legal
action. The District Court awarded Lesher $1,000 in
damages. See 15 U.S.C. § 1692k(a)(2)(A).

The Kay Law Firm now appeals from the District
Court‟s order.5

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over this matter
pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d). We
have jurisdiction over this appeal pursuant to 28 U.S.C. §
1291. We review a District Court‟s order granting summary

summary judgment in Lesher‟s favor on his § 1692e claim.
4
The District Court did not specify whether it was finding a
violation of § 1692e generally, or violations of subsections
(3) or (5), or both.
5
The National Association of Retail Collection Attorneys
(the “NARCA”) and the Association of Credit and Collection
Professionals (the “ACA”) have submitted amici briefs in
support of the Kay Law Firm‟s appeal.

7
judgment de novo. EBC, Inc. v. Clark Bldg. Sys., Inc., 618
F.3d 253, 262 (3d Cir. 2010).6

III. Discussion

A. FDCPA Background

Congress enacted the FDCPA in 1977 in response to
the “abundant evidence of the use of abusive, deceptive, and
unfair debt collection practices by many debt collectors.” 15
U.S.C. § 1692(a). At that time, Congress was concerned that
“[a]busive debt collection practices contribute to the number
of personal bankruptcies, to material instability, to the loss of
jobs, and to invasions of individual privacy.” Id. Congress
explained that the purpose of the Act was not only to
eliminate abusive debt collection practices, but also to “insure
that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged.” Id.
§ 1692(e). After determining that the existing consumer
protection laws were inadequate, id. § 1692(b), Congress
gave consumers a private cause of action against debt
collectors who fail to comply with the Act. Id. § 1692k.

Because the FDCPA is a remedial statute, we construe its
language broadly so as to effect its purpose. Brown v. Card
Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006) (citations
omitted). Accordingly, we analyze communications from
lenders to debtors from the perspective of the “least

6
The District Court assumed that whether a communication
is false and misleading under the FDCPA is a question of law,
and neither party challenges this aspect of the District Court‟s
decision on appeal.

8
sophisticated debtor.” Id. at 454. “The basic purpose of the
least-sophisticated [debtor] standard is to ensure that the
FDCPA protects all consumers, the gullible as well as the
shrewd. This standard is consistent with the norms that courts
have traditionally applied in consumer-protection law.” Id. at
453 (quoting Clomon v. Jackson, 988 F.2d 1314, 1318 (2d
Cir. 1993)). “„Laws are made to protect the trusting as well
as the suspicious.‟” Brown, 464 F.3d at 453 (quoting Federal
Trade Comm‟n v. Standard Educ. Soc‟y, 302 U.S. 112, 116
(1937)).

Bearing this in mind, we note that although the “least
sophisticated debtor” standard is a low standard, it “prevents
liability for bizarre or idiosyncratic interpretations of
collection notices by preserving a quotient of reasonableness
and presuming a basic level of understanding and willingness
to read with care.” Wilson v. Quadramed Corp., 225 F.3d
350, 354-55 (3d Cir. 2000) (internal quotation marks and
citation omitted). “Even the least sophisticated debtor is
bound to read collection notices in their entirety.”
Campuzano-Burgos v. Midland Credit Mgmt., 550 F.3d 294,
299 (3d Cir. 2008)

B. Section 1692e of the FDCPA

Lesher claims that the January 11 and February 15,
2009 letters that he received from the Kay Law Firm violate
section 1692e of the FDCPA, which prohibits the use of
“false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C. §
1692e. The sixteen subsections of section 1692e set forth a
non-exhaustive list of practices that fall within this ban.
These subsections include:

9
 (3) The false representation or implication that
any individual is an attorney or that any
communication is from an attorney.

...

(5) The threat to take any action that cannot
legally be taken or that is not intended to be
taken.

15 U.S.C. § 1692e. Because the list of the sixteen subsections
is non-exhaustive, a debt collection practice can be a “false,
deceptive, or misleading” practice in violation of section
1692e even if it does not fall within any of the subsections.
See Clomon, 988 F.2d at 1318.

C. Section 1692e Case Law

To determine whether the District Court properly
construed section 1692e of the FDCPA, we look to both our
own prior opinions, and to opinions from our sister circuits,
discussing section 1692e of the FDCPA.

Although we have not had occasion to consider
whether the precise type of debt-collection letters at issue in
this case violates section 1692e,7 we have considered whether

7
The Kay Law Firm emphasizes that its January 11 and
February 15, 2009 letters were “settlement letters,” not
“dunning letters.” While we recognize the distinction
between letters that provide an opportunity for settlement in a
conciliatory manner and those that contain more hostile
demands for payment, we note that both types of

10
other debt-collection letters comply with this subsection of
the Act. For example, in Brown v. Card Service Center, 464
F.3d 450 (3d Cir. 2006), we considered whether a letter from
a debt collection agency that warned the debtor of potential
legal action violated section 1692e. In that case, Card Service
Center (“CSC”) sent the plaintiff a letter informing her that,
unless she made arrangements to pay her debt within five
days, the matter “could” result in referral of the account to
CSC‟s attorney, and “could” result in “a legal suit being
filed.” Id. at 451-52. The plaintiff sued, claiming that
because CSC had no intention of referring her account to an
attorney, and no intention of filing a law suit, the letter
violated section 1692e‟s ban on false, misleading, or
deceptive communications. Id. at 452. Specifically, Brown
claimed that the letter violated subsection (5), which prohibits
collection letters from “threat[ening] to take any action that
cannot legally be taken or that is not intended to be taken.”
15 U.S.C. § 1692e(5). The district court dismissed the
complaint, determining that because “[t]he letter neither states
nor implies that legal action is imminent, only that it is
possible,” the plaintiff had failed to state a section 1692e(5)
violation. Id. at 454.

Upon review, we disagreed, and held that the facts
alleged, if proven, could show that the CSC letter was
“deceptive” or “misleading” under section 1692e because, in
our view, it would be deceptive under the FDCPA for CSC
“to assert that it could take an action that it had no intention

communications must comply with 15 U.S.C. § 1692e. See
Campuzano-Burgos, 550 F.3d at 299-300. Therefore, we fail
to see the significance in the distinction here.

11
of taking and has never or very rarely taken before.” Id. at
454-55 (emphasis in original).

More recently, this Court considered whether a
collection letter falsely implied that it was from a lawyer in
violation of section 1692e(3) because it was signed by the
“Legal Department” of a collection agency even though none
of the employees in that department were lawyers. In that
case, Rosenau v. Unifund Corp., 539 F.3d 218 (3d Cir. 2008),
Unifund sent a collection letter to the plaintiff demanding
payment on a debt he owed to a third party. Id. at 219. The
letter stated as follows:

If we are unable to resolve this issue within 35
days we may refer this matter to an attorney in
your area for legal consideration. If suit is filed
and if judgment is rendered against you, we will
collect payment utilizing all methods legally
available to us, subject to your rights below . . .
This communication is from a debt collector.
This is an attempt to collect a debt . . . .

Id. at 220. The letter was signed by the “Unifund Legal
Department,” which, despite its name, was comprised of
solely non-lawyer employees. Id. Viewing the letter from
the perspective of the least sophisticated debtor, we
concluded that a debtor receiving the letter might reasonably
infer that it was from an attorney even though it was not. Id.
at 223. We rejected the idea that the statement that the letter
was “from a debt collector” nullified the implication that the
letter was from an attorney because, in our view, the
categories of “debt collector” and “attorney” are not mutually
exclusive. Id. We also disagreed with the district court‟s

12
conclusion that the letter could not reasonably be interpreted
to be from an attorney because it stated that Unifund might
refer the matter to an attorney; we noted that lawyers often
refer cases to one another and that this aspect of the letter
would not necessarily dispel the impression that the letter was
sent by a lawyer employed in Unifund‟s legal department.
Id.8

Several of our sister circuit courts have also analyzed
the application of section 1692e to debt-collection letters
from attorneys. The leading case on whether mass-produced
debt-collection mailings by an attorney violate the
proscriptions of the FDCPA is Clomon v. Jackson, 988 F.2d
1314 (2d Cir. 1993). In Clomon, a debt collection agency
mailed several form collection letters to the plaintiff that were
printed on the attorney letterhead of the agency‟s general
counsel, and bore the mechanically reproduced facsimile of

8
This Court‟s most recent opinion concerning section 1692e
is Campuzano-Burgos v. Midland Credit Mgmt., 550 F.3d
294 (3d Cir. 2008), in which we considered whether a
collection agency violated section 1692e by sending out
letters that were signed by the agency‟s executives even
though none of those executives was personally involved in
sending the letters. Id. at 297. We held that the letters, as a
whole, were not deceptive under section 1692e because they
did not objectively appear to be letters from a corporate
executive to an individual; in our view, even the least
sophisticated debtor, “possessing some common sense and a
willingness to read the entire document with care, would not
have believed that he had received a personal
communication” from an executive. Id. at 301.

13
his signature. Id. at 1316. Although the attorney approved
the form of the letters, and the procedures according to which
those letters were sent, the attorney had no direct personal
involvement in the mailing of the letters. Id. at 1317. The
letters contained a variety of threatening statements designed
to induce the plaintiff to pay the amount she owed, such as
the following: “After [this collection agency] reviews your
collection file and previous correspondence sent you, I am
suggesting we take the appropriate measures provided under
the law to further implement the collection of your seriously
past due account.” Id.

The Second Circuit held that the use of the attorney‟s
letterhead and his signature on the collection letters was
sufficient to give the debtor the false impression that the
letters were communications from an attorney in violation of
§ 1692e(3). Id. at 1320. The Court held that the letters were
false and misleading because they were not “from” the
attorney in any meaningful sense of the word. Id. In
reaching this conclusion, the Court found significant the fact
that the attorney did not review each debtor‟s file, did not
determine when particular letters should be sent, did not
approve the sending of particular letters based upon the
recommendations of others, did not see particular letters
before they were sent, and did not know the identities of the
persons to whom the letters were issued. Id.; see also Miller
v. Wolpoff & Abramson, LLP, 321 F.3d 292, 301 (2d Cir.
2003) (explaining that “[a]lthough there is no dispute that [the
defendant law firms] are law firms, or that the letters sent by
those firms were „from‟ attorneys in the literal sense of that
word, some degree of attorney involvement is required before
a letter will be considered „from an attorney‟ within the
meaning of the FDCPA”).

14
 The Seventh Circuit reached the same conclusion
about a similar letter in Avila v. Rubin, 84 F.3d 222 (7th Cir.
1996). There, as in Clomon, the plaintiff had received a
series of mass-produced collection letters printed on the
letterhead of a law office and including the mechanically
reproduced signature of an attorney. Id. at 225. Several of
the letters informed the plaintiff that, “[i]f payment is not
received, a civil suit may be initiated against you by your
creditor.” Id. Although the named attorney had approved the
general form letter, he did not personally prepare, sign, or
review any of the letters sent to the plaintiff; instead, a “legal
assistant collector” actually produced the letter using training
materials developed by the attorney. Id. The plaintiff
claimed that these letters violated § 1692e(3) because the
letters were not really “from an attorney.” Id. at 229.

The Seventh Circuit agreed and held that an attorney
sending a collection letter must be directly and personally
involved in the mailing of the letters in order to comply with
the strictures of the FDCPA. Id. The Court explained as
follows:

An unsophisticated consumer, getting a letter from an
“attorney,” knows the price of poker has just gone up.
And that clearly is the reason why the dunning
campaign escalates from the collection agency, which
might not strike fear in the heart of the
consumer, to the attorney, who is better
positioned to get the debtor‟s knees knocking.

A letter from an attorney implies that a real
lawyer, acting like a lawyer usually acts,
directly controlled or supervised the process

15
 through which the letter was sent. That‟s the
essence of the connotation that accompanies the
title of “attorney.” A debt collection letter on
an attorney‟s letterhead conveys authority.
Consumers are inclined to more quickly react to
an attorney‟s threat than to one coming from a
debt collection agency. It is reasonable to
believe that a dunning letter from an attorney
threatening legal action will be more effective
in collecting a debt than a letter from a
collection agency. The attorney letter implies
that the attorney has reached a considered,
professional judgment that the debtor is
delinquent and is a candidate for legal action.
And the letter also implies that the attorney has
some personal involvement in the decision to
send the letter. Thus, if a debt collector
(attorney or otherwise) wants to take advantage
of the special connotation of the word
“attorney” in the minds of delinquent consumer
debtors to better effect collection of the debt,
the debt collector should at least ensure that an
attorney has become professionally involved in
the debtor‟s file. Any other result would
sanction the wholesale licensing of an
attorney‟s name for commercial purposes, in
derogation of professional standards[.]

Id. at 229; see also Nielsen v. Dickerson, 307 F.3d 623, 635-
38 (7th Cir 2002) (relying on Avila to conclude that
collection letters from defendant attorney violated § 1692e(3)
and (10) because the attorney was not meaningfully involved
in the decision to send the letters).

16
 The Second Circuit later clarified its holding in
Clomon to explain that an attorney, acting as a debt collector,
could avoid liability by including a clear and prominent
disclaimer in the collection letter. The collection letter at
issue in that case, Greco v. Trauner, Cohen & Thomas, LLP,
412 F.3d 360 (2d Cir. 2005), was printed on the letterhead of
“Trauner, Cohen & Thomas, LLP,” and stated in pertinent
part as follows:

The firm of Trauner, Cohen & Thomas is a law
partnership representing financial institutions in
the area of creditors rights. In this regard, this
office represents the above named BANK OF
AMERICA who has placed this matter, in
reference to an original account with [sic] for
collection and such action as necessary to
protect our client.

At this time, no attorney with this firm has
personally reviewed the particular
circumstances of your account. However, if
you fail to contact this office, our client may
consider additional remedies to recover the
balance due.
...

Very truly yours,
Trauner, Cohen & Thomas, LLP

Id. at 361. The plaintiff, relying on Clomon, claimed that
Trauner, Cohen & Thomas had violated the FDCPA by
sending a debt collection letter, signed by the law firm and on
law firm stationary, thereby implying that the firm had

17
analyzed the debtor‟s case and rendered legal advice to the
creditor when it had not. Id. at 363.

The Second Circuit held that the letter did not violate
the FDCPA because, unlike the letter at issue in Clomon, it
included a clear disclaimer explaining the limited extent of
the law firm‟s involvement in the collection action. Id. at
364-65. The Court elaborated on its previous holding as
follows:

One cannot, consistent with the FDCPA,
mislead the debtor regarding meaningful
“attorney” involvement in the debt collection
process. But it does not follow that attorneys
may participate in this process only by
providing actual legal services. In fact,
attorneys can participate in debt collection in
any number of ways, without contravening the
FDCPA so long as their status as attorneys is
not misleading. Put another way, our prior
precedents demonstrate that an attorney can, in
fact, send a debt collection letter without being
meaningfully involved as an attorney within the
collection process, so long as that letter includes
disclaimers that should make clear even to the
“least sophisticated consumer” that the law firm
or attorney sending the letter is not, at the time
of the letter‟s transmission, acting as an
attorney.

Id. at 364 (emphasis in original). Because the letter at issue
in Greco included a disclaimer that, “[a]t this time, no
attorney with this firm has personally reviewed the particular

18
circumstances of your account,” the Court concluded that the
defendant law firm had not made a “false representation or
implication that any individual is an attorney or that any
communication is from an attorney with meaningful
involvement as an attorney in the debtor‟s case.” Id. at 365
(internal quotation marks and citation omitted).

Notably, the Fifth Circuit recently considered the
legality of a debt collection letter from the Kay Law Firm that
appears to be the exact same form letter that was sent to
Lesher on January 11, 2009. In Gonzalez v. Kay, 577 F.3d
600 (5th Cir. 2009), the Kay Law Firm sent a collection letter
to the plaintiff demanding payment of $448.97 on a consumer
debt. Id. at 601. The letter, like the January 11, 2009 letter at
issue here, was printed on the Kay Law Firm‟s letterhead. Id.
at 602. The letter also contained the same language regarding
the debtor‟s right to contest the debt, and included, on the
back, the disclaimer that, “[a]t this point in time, no attorney
with this firm has personally reviewed the particular
circumstances of your account.” Id. The plaintiff brought
suit under § 1692e, claiming that the letter was deceptive in
that the Kay Law Firm “pretended to be a law firm with a
lawyer handling collection of the Account when in fact no
lawyer was handling the Account or actively handling the
file.” Id. According to the plaintiff, the Kay Law Firm is not
actually a law firm at all, but a debt collection agency that
uses the imprimatur of a law firm to intimidate debtors into
paying their debts. Id. at 602-03.

Although the district court dismissed the complaint for
failure to state a claim, see Fed. R. Civ. P. 12(b)(6), the Fifth
Circuit held that dismissal was premature because the “least
sophisticated debtor” might be deceived into thinking that a

19
lawyer was involved in the debt collection despite the
disclaimer. After reviewing the reasoning in (among other
cases) Clomon, Rosenau, and Greco, the Court explained that,
in its view, “the main difference between the cases is whether
the letter included a clear, prominent, and conspicuous
disclaimer that no lawyer was involved in the debt collection
at that time.” Id. at 606. According to the Court:

There are some letters that, as a matter of law,
are not deceptive based on the language and
placement of a disclaimer. At the other end of
the spectrum, there are letters that are so
deceptive and misleading as to violate the
FDCPA as a matter of law, especially when
they do not contain any disclaimer regarding the
attorney‟s involvement. In the middle, there are
letters that include contradictory messages and
therefore present closer calls.

Id. The Fifth Circuit concluded that this letter fell within the
middle ground because, unlike the letter in Greco in which
the disclaimer was part of the body of the text on the front
page, the disclaimer here was on the back. Id. Thus,
according to the Fifth Circuit, the least sophisticated debtor
would not learn that the letter was from a debt collector
unless he turned the letter over to read the “legalese” on the
back. Id. at 607. Accordingly, the Court remanded the matter
to the district court for further development of the record. Id.
In so doing, the Court added the following precautions to
attorney-debt-collectors:

We caution lawyers who send debt collection
letters to state clearly, prominently, and

20
 conspicuously that although the letter is from a
lawyer, the lawyer is acting solely as a debt
collector and not in any legal capacity when
sending the letter. The disclaimer must explain
to even the least sophisticated consumer that
lawyers may also be debt collectors and that the
lawyer is operating only as a debt collector at
that time. Debt collectors acting solely as debt
collectors must not send the message that a
lawyer is involved, because this deceptively
sends the message that the “price of poker has
gone up.”

Id.

D. Applying the Least Sophisticated Debtor Standard to
the Kay Law Firm’s Letters

The District Court in this case relied on Brown,
Rosenau, Greco, and Gonzalez to conclude that the Kay Law
Firm‟s January 11 and February 15, 2009 letters were
misleading under section 1692e of the FDCPA. The District
Court found that the least sophisticated debtor, upon receiving
these letters, would believe that they had been sent
by an attorney who might pursue legal action if he did not pay
the debt.9 The District Court acknowledged that the letters

9
According to the District Court:

A consumer is reasonably expected to believe
that a law firm is comprised of attorneys and
that it does legal work. In the context of a
consumer debt, a reasonable perception of

21
included a disclaimer notifying Lesher that an attorney had
not reviewed his account, but found that the disclaimer did
not mitigate the impression of potential legal action. The Kay
Law Firm now challenges the District Court‟s decision.10

consumers is that if a consumer debt is being
handled on behalf of the lender by a law firm
and if the amount of money that the law firm is
seeking (or some lesser settlement amount) is
not paid, then the lawyer(s) will use the legal
process with which they are familiar and for the
use of which they are specifically trained to
obtain a mandatory order of payment, which
order will be enforceable by penalties within the
power of courts to impose. The implication that
a communication to a consumer concerning a
debt is from an attorney has a particular and
well-known and well-understood effect. That is
explicitly recognized in and incorporated into §
1692e.

Lesher v. Law Office of Mitchell N. Kay, P.C., 724 F. Supp.
2d 503, 509 (M.D. Pa. 2010).
10
Specifically, the Kay Law Firm argues that, contrary to the
District Court‟s conclusion, the letters: (a) complied with
section 1692e(3) because they were indeed from an attorney;
(b) complied with section 1692e(5) because they did not
threaten legal action; and (c) were not otherwise “false,
deceptive, or misleading.” We need not reach the question of
whether the Kay Law Firm‟s letters to Lesher violate sections
1692e(3) and (5) because we conclude that they violate

22
 We agree with the District Court that the Kay Law
Firm‟s letters violate section 1692e‟s general prohibition
against “false, deceptive, or misleading” communications
because they falsely imply that an attorney, acting as an
attorney, is involved in collecting Lesher‟s debt. In our view,
the least sophisticated debtor, upon receiving these letters,
may reasonably believe that an attorney has reviewed his file
and has determined that he is a candidate for legal action. We
do not believe that such a reading would be “bizarre or
idiosyncratic.” Wilson, 225 F.3d at 354-55 (internal
quotation marks and citation omitted).

Nor do we believe that the disclaimers included in the
letters, which are printed on the backs, make clear to the least
sophisticated debtor that the Kay Law Firm is acting solely as
a debt collector and not in any legal capacity in sending the
letters. First, in our view, the statement that “[a]t this point in
time, no attorney with this firm has personally reviewed the
particular circumstances of your account” does little to clarify
the Kay Law Firm‟s role in collecting the debt because it
completely contradicts the message sent on the front of the
letters—that the creditor retained a law firm to collect the
debt.11 Moreover, as we noted in Rosenau, the statement that

section 1692e‟s general prohibition against “false, deceptive,
or misleading” communications.
11
We recognize that the Second Circuit held in Greco that
the language in this disclaimer sufficiently explained the
limited role that the attorneys played in collecting the
plaintiff‟s debt. See 412 F.3d at 366. In viewing the Kay
Law Firm letters at issue here, however, we are not convinced
that this disclaimer, which—unlike in Greco—was printed on

23
the letters were “from a debt collector” is a statutorily
required notification that “should not be viewed as nullifying
any implication that the letter is from an attorney.” See 539
F.3d at 223 (explaining that “[b]oth common sense and case
law confirm . . . that the categories of „debt collector‟ and
„attorney‟ are not mutually exclusive”).

As the Seventh Circuit observed in Avila, “[a]n
unsophisticated consumer, getting a letter from an „attorney,‟
knows the price of poker has just gone up.” 84 F.3d at 229.
For this reason, we believe that it was misleading and
deceptive for the Kay Law Firm to raise the specter of
potential legal action by using its law firm title to collect a
debt when the firm was not acting in its legal capacity when it
sent the letters. We need not decide whether an attorney
debt-collector who sends out a collection letter on attorney
letterhead might, under appropriate circumstances, comply
with the strictures of the Act by including language that
makes clear that the attorney was not, at the time of the
letter‟s transmission, acting in any legal capacity. The only
question before us today is whether the Kay Law Firm‟s
January 11 and February 15, 2009 letters to Lesher comply
with the Act. For the reasons set forth above, we hold that
they do not.

IV. Conclusion

the back of the letters, effectively mitigated the impression of
attorney involvement. See Gonzalez, 577 F.3d at 607
(distinguishing the letter in Greco from the Kay Law Firm‟s
letter based on the position and context of the disclaimer).

24
 We will affirm the District Court‟s order granting
summary judgment in Lesher‟s favor with respect to his 15
U.S.C. § 1692e claim.

25
Lesher v. Law Offices of Mitchell N. Kay, P.C., et al.,
No. 10-3194
JORDAN, Circuit Judge, dissenting:

The sole question for us to answer in this appeal is
whether the least sophisticated consumer, after reading the
debt collection letters at issue, would believe that an attorney,
acting as such, was involved in the collection process.
Because I disagree with the Majority‟s conclusion and would
hold that even the least sophisticated consumer would not be
misled as the plaintiff and the Majority contend, I respectfully
dissent.1

The least-sophisticated-consumer standard is meant to
comport with the purpose of the Fair Debt Collection
Practices Act (“FDCPA”) to protect all consumers, “the
gullible as well as the shrewd.” Clomon v. Jackson, 988 F.2d

1
The case of Gonzalez v. Kay, 577 F.3d 600 (5th Cir.
2009), raised the same question with respect to a debt
collection letter substantively indistinguishable from the letter
at issue here. The Honorable E. Grady Jolly dissented in that
case, opining that the debt collection letter did not violate 15
U.S.C. § 1692e. Id. at 607-12 (Jolly, J. dissenting).
Consistent with the reasoning in Greco v. Trauner, Cohen &
Thomas, L.L.P., 412 F.3d 360 (2d Cir. 2005), Judge Jolly
observed that the letter was best seen as sufficiently clear to
tell the least sophisticated consumer that an attorney, acting in
the role of an attorney, had not been involved in the collection
effort. Gonzalez, 577 F.3d at 607-09 (Jolly, J. dissenting). I
am persuaded by Judge Jolly‟s thoughtful analysis and
endeavor to echo it here.

1
1314, 1318 (2d Cir. 1993). While the standard surely protects
naïve consumers, it is also supposed to protect debt collectors
by “prevent[ing] liability for bizarre or idiosyncratic
interpretations of collection notices by preserving a quotient
of reasonableness and presuming a basic level of
understanding and willingness to read with care.” Wilson v.
Quadramed Corp., 225 F.3d 350, 354-55 (3d Cir. 2000)
(internal quotation marks and citation omitted). My
colleagues in the Majority give this important aspect of the
standard only a nod.

Under our precedents, attorneys are permitted to
participate in debt collection, including the sending of debt
collection letters, without running afoul of the FDCPA. See
Crossley v. Lieberman, 868 F.2d 566, 569-70 (3d Cir. 1989)
(acknowledging attorney participation in debt collecting and
discussing the FDCPA strictures on, not prohibition of, that
participation); Graziano v. Harrison, 950 F.2d 107, 111 (3d
Cir. 1991) (holding that an attorney acting as a debt collector
violated the FDCPA by misstating the debtor‟s legal rights in
the collection letter, not, implicitly, by merely sending the
letter). They must, however, tread carefully. “Abuses by
attorney debt collectors are more egregious than those of lay
collectors because a consumer reacts with far more duress to
an attorney‟s improper threat of legal action than to a debt
collection agency committing the same practice.” Crossley,
868 F.2d at 570. Indeed, because “[a] debt collection letter
on an attorney‟s letterhead conveys authority and credibility,”
there is inherent intimidation in correspondence of that kind.
Id.

Consistent with that concern, the United States Court
of Appeals for the Second Circuit has explained that a debt

2
collection letter signed by a law firm or appearing on the
firm‟s letterhead “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,” Clomon, 988 F.2d at
1321 (emphasis added), and thus, unless the attorney actually
had formed a legal opinion, would violate the FDCPA‟s
prohibition against “[t]he use of any false representation or
deceptive means to collect or attempt to collect any debt,” 15
U.S.C. § 1692e (10).2 However, the Second Circuit has also

2
Section 1692e provides a non-exclusive list of
conduct that violates that section. Appellee argues that three
of the examples of violative conduct listed in § 1692e are
implicated here:
(3) The false representation or implication that
any individual is an attorney or that any
communication is from an attorney.
***
(5) The threat to take any action that cannot
legally be taken or that is not intended to be
taken.
***
(10) The use of any false representation or
deceptive means to collect or attempt to collect
any debt or to obtain information concerning a
consumer.

15 U.S.C. § 1692e.

3
held in Greco v. Trauner, Cohen, & Thomas, L.L.P., that that
implicit message of attorney involvement may be clarified by
the use of proper disclaimers “connot[ing] far less actual
attorney involvement [and thus] satisfying the FDCPA‟s
requirements.” 412 F.3d 360, 364 (2d Cir. 2005).

For example, in Greco, the debtor claimed that a
collection letter he received from a law firm left him with the
false impression that an attorney had reviewed his account
and formed an opinion regarding the debt. Id. at 362. This
letter was printed on law firm stationary, and the firm‟s name
was used as a signature. Id. at 361. The letter further implied
the involvement of attorneys, referring to the creditor as “our
client,” stating that the firm “represent[ed]” the creditor in
“this matter,” and warning of “additional remedies.” Id. But
the letter also contained the following disclaimer: “At this
time, no attorney with this firm has personally reviewed the
particular circumstances of your account.” Id.

The Greco Court acknowledged the letter‟s
implication that an attorney, acting as an attorney, had been
involved, but the Court noted that “the implied level of
attorney involvement is just that – implied.” Id. at 364. The
implication could be overcome, the Court explained, by a
clear disclaimer. Id. The Court concluded that the disclaimer
at issue was clear enough for the least sophisticated consumer
to understand that no one involved in the debt collection to
that point had had “meaningful involvement as an attorney.”
Id. at 365. In summary, the Second Circuit held:

[A]n attorney can, in fact, send a debt collection
letter without being meaningfully involved as
an attorney within the collection process, so

4
 long as that letter includes disclaimers that
should make clear even to the “least
sophisticated consumer” that the law firm or
attorney sending the letter is not, at the time of
the letter‟s transmission, acting as an attorney.

Id. at 364.

In Gonzalez v. Kay, the United States Court of Appeals
for the Fifth Circuit faced essentially the same question faced
by the Second Circuit in Greco. The collection letter‟s
content, including its disclaimer regarding attorney
involvement, tracked that of the Greco letter.3 Gonzalez,
557 F.3d at 602. However, the panel majority in Gonzalez
concluded that the letter was misleading because, unlike the
letter in Greco, which had the disclaimer on the front, the
disclaimer was on the back of the letter. Id. at 606. The
Gonzalez majority further opined that the disclaimer was
“legalese” and inconsistent with the implicit message
communicated by the law firm‟s letterhead on the front of the
page. Id. at 607.

The dissent in Gonzalez, however, pointed out that the
disclaimer “[did] not contain a single legal term” and that a
“reasonable unsophisticated consumer, whom we assume can
read, could not possibly have trouble understanding it.” Id. at
608 (Jolly, J., dissenting). The dissent further noted that the
majority‟s concern over the placement of the disclaimer could

3
The disclaimer read: “At this point in time, no
attorney with this firm has personally reviewed the particular
circumstances of your account.” Gonzalez, 577 F.3d at 602.

5
only provide a meaningful basis for reaching a different result
than in Greco if one assumes “that an unsophisticated
consumer would not turn the letter over,” id. at 608-609,
which was an untenable assumption given the large notice on
the letter‟s front page stating: “Notice: Please see reverse
side for important information,” id. at 609. As rightly put by
the dissent, “[W]hen a prominent instruction in the body of
the letter warns that there is important information on the
reverse side, a reasonable reader, even if unsophisticated,
would turn the paper over and read the back.” Id. at 609
(internal quotation marks omitted). Thus, read in its entirety,
the letter could not confuse the least sophisticated consumer
regarding an attorney‟s involvement. Id.

The Gonzalez dissent is exactly correct, and I regret
that I too am required to dissent rather than be part of a
majority opinion recognizing that the words “least
sophisticated” do not mean “illiterate” or “completely
irresponsible.” The correspondence at issue here features
basically the same plain language disclaimer as was at issue
in both Greco and Gonzalez: “At this time, no attorney with
this firm has personally reviewed the particular circumstances
of your account.” (App. at 41, 43.) Without legal mumbo
jumbo, that disclaimer tells any reasonable reader, including
the least sophisticated, that, “while this was a letter from a
law firm, no attorney had specifically examined the
recipient‟s account information, and hence no attorney had
yet recommended filing a lawsuit against the creditor.”
Greco, 412 F.3d at 362-63. Moreover, like the letter in
Gonzalez, the letter here does not mention “clients,”
“representation,” or “other jargon suggesting lawyer
involvement.” Gonzalez, 577 F.3d at 608 (Jolly, J.,

6
dissenting). Thus, it is “significantly less suggestive of
attorney involvement” than the Greco letter. Id.

Once upon a time, we held that, “[a]lthough
established to ease the lot of the naïve, the [least sophisticated
consumer] standard does not go so far as to provide solace to
the willfully blind or non-observant. Even the least
sophisticated debtor is bound to read collection notices in
their entirety.” Campuzano-Burgos v. Midland Credit Mgmt.,
Inc., 550 F.3d 294, 299 (3d Cir. 2008). We have strayed far
from that ruling today. To say that the least sophisticated
consumer would not flip the page to read the entire letter,
particularly when prompted to do so by a conspicuous notice
on the front of the letter, or to say that one could be confused
about the level of attorney involvement despite the plain
statement that no legal review had occurred, is to permit –
indeed to encourage – the kind of “bizarre or idiosyncratic
interpretation[] of collection notices,” id. (internal quotation
marks omitted), we have previously condemned. “Rulings
that ignore these rational characteristics of even the least
sophisticated debtor and instead rely on unrealistic and
fanciful interpretations of collection communications”
frustrate the express purpose of the FDCPA to “„insure that
those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged.‟”
Id. (quoting 15 U.S.C. § 1692(e)).

Although the Majority claims to eschew deciding
whether a law firm can ever be clear enough in a disclaimer
to overcome the effect of sending out a debt collection notice
on law firm letterhead, the practical effect here is clear. Law
firms take an extraordinary risk in sending a collection letter,
no matter how conciliatory or how plain their prose.

7