case number fourteen and others versus the law office of eric a jones and others arguments not to exceed fifteen minutes per side mr noble for the app in preparing for today's arguments i looked an old quote i'm sure everybody is familiar with it it is my understanding it comes from james whitcomb where riley is an indian poet and  observed that when he saw a bird and that bird walk like a duck it quacks like a duck and swam like a duck he could conclude as a humorous way of inductive reasoning that it was a duck  the first problem with this court's lower court's decision had to do with the court's observation of what should have been the duck in this case an actual officer of the of the state of ohio think that's a false dichotomy when it comes to this case and what matters in this case and that what matters and the material representation here is whether these folks are agents and it seems to me there's no doubt they're agents of the state yet your honor they disclaim agency as a matter of can contract with the state that specifically stated in their agreements that they have no agency relationship no no no they're acting no they're acting as agents for the state in collecting these debts we're not disclaiming that that's the whole point of their agreement and that's what's accurate not misleading about the letter that they are that they are agents acting on behalf of the state yes well your honor i think the same could be said with practically any debt collector that's a third party collecting for another entity is they're acting on behalf of that entity to collect the obligations the definition of whether or not their debt collector were in this case whether they should be accepted from that definition turns on a different question not as are the agency i think when we talk about any other debt collection relationship we don't need to go there we should talk about ones in which people collect at some half of the state the states allowed to do this estate doesn't have to hire a thousand debt collectors right it's true it doesn't that the this section of the a office is allowed to have whatever it has ten to fifteen people and then they have a lot more deaths than ten or fifteen people can handle so they can contract out and have these people act as agents of the state to collect the debts i was done and i'm just really puzzled exempt them from being a a deck elector under the f t c simply because they they act on behalf of the state or an agent of of the state in fact does not lead to the conclusion that they are a government officer or an employee of the state that would entitle them to be excepted from the statute fair enough but what what then is misleading about these letters interagency the state in the state wants you to use this letterhead the courts in this court's rulings materiality is goes to kind of the heart of whether or not the statement made or the representation made tends to mislead or confuse a reasonable but unsophisticated consumer so we're not dealing with your honor's or me or any of the other lawyers or walk lurks in this court room we have a pretty sound appreciation  of of of how things work and what things appear but the least sophisticated consumer does not in this case what was presented to these consumers as your honour's have probably seen is a letter that came on stationery and letterhead with the name mike de wine ohio attorney general and in the other case the office of the attorney general collections and foresman section the bit i mean even the least sophisticated consumer question back is who sent me the letter did i get that from mike de wine or did i get that from from in this case eric jones or did i get that from the person who and why senator crystal clear eric jones outside counsel for the attorney general's office that explains why mike de wine's name and the attorney general's name is at the top and yet your honor the attorney general has in open court informed the district court on more than one occasion that many different telephone calls come to their office with that very question who sent me this letter i'm getting a letter from mike de wine what exactly is this and they have to tell them to contact the other individual who signed the letter in the case or in this where jones or overall market share so i think that to the least sophisticated consumer there's very little that's clear about that letter what is clear is that the most prominent observance of that letter is the letterhead itself i mean that's the one chief characteristic of a letterhead when i send somebody a letter had on my law firm stationery that i want to know it came from my l and that's why you stationery you know are underneath all of the arguments that we make our belief is that there are reasons for doing this are pretty clear that it leads and it creates this kind of sense of urgency in that it's coming from the highest chief legal counsel and it creates in that individual a fear and or at least a prioritization issue that they should take care of this particular death before perhaps another and it is that problem your honor that i think you know if there's no letterhead but it stands the exact same thing outside counsel for the attorney general's office what happens to the case there was never a case that's what i pathetically is no no no that's why i'm saying there would never be a case or you would agree there's no problem there right even though it says attorney general's office it  is it does describe that and that's that's accurate but it doesn't indicate or simulate a document that came from directly the ohio attorney general it just says that and it could have been said with more clarity i think but i don't know that that would rise to the level of the violation that we have in this case but materiality being what it is i mean in our brief i think we indicated that we think materiality in at least with respect to two of the subdivisions that we have is really a non issue it's already subsume if you use or distribute a document that simulates government and i believe j c christiansen was the the other two cases that indicated that materiality is soon into those l and i mean on the your key point that the use of say a letterhead like this the ohio you know makes it misleading and gives you a right of access under the fair debt collection practices act well there were a number of cases your honor that we did cite gradishar was a case from the eastern district of michigan in which a n individual was using the letterhead of the sheriff's department in a similar fashion and if that was held to be in violation of the fourteen that would be the main case as far as think night be sure men kieffer was a southern district ace that actually dealt with special counsel they never reached the issue but judge marbury did lay out what he believed was the test but that had more to do with the nature of whether or not that individual is an officer or employee state what happens if it's the mike de wine letterhead attorney general and then it says eric jones and then it's the office of the attorney general and it says you know agent of the attorney general some of the words in my have a fetish jones actually works in the office ok right so air so that the name's the same mark johns but he's actually works in the office he's a quote employee but it's signed agent of attorney general that's what he puts below his name got the letterhead so you still have the same disconnect for the consumer that you're worried about because they're thinking to the attorney general send this to me because i see this on the letterhead and that's so you have the same confusion problem they're here hypothetical your honor aren't you aren't you indicating that the attorney general an employee of his office actually did send a letter well all it says is agent of the attorney general that's all it says plus an address up and i'm sorry maybe i misunderstood you got what you had said that eric jones was actually working yes in my hypothetical he is that what i'm saying you have the same confusion did eric johnson this as agent because it signed agent of the attorney general or did mike de wine send this well there might be i know that i don't think you think that's troubling i don't think your theory of a case would allow that to be troubling but it seems to me to present the same confusion well theory of our case is is straight to the issue of whether a third party who has no visible connection to the a g the o a g in this case other than contract that goes through point by point what they can and cannot do and just practically every part of that contract disassociates but they're an agent for purposes of what they're doing in these letters as are all third party collectors agents of the u s creditors they collect so if your honor's analogy is enough finished with this is that  m has debt collectors and why can't you send an i b m letterhead and just say you're a debt collector you're hired by i b m to collect the debt i think that's the real problem here if if that is the slope that we give down does apply and they use letterhead but they're an agent and they're not an employee then they're using a name that's not their true name and you can thank you thank you splitting our time five minutes each are in the special counsel here are not debt collectors because they were authorized by law to perform the duties of the office defendants are independent contractors who do not purport to be employees of the attorney general and the contract makes you responsible for all your  expenses and you're paid only out of the money that you could legs you're not drawing money from the state that then makes you far removed from the attorney general's office except in so far as your carrying out the specified contract responsibilities when you say and that's where this case comes in and time is where the special counsel are for filling these duties which they are authorized by law to fulfill doesn't make you an officer of the attorney general because then you're holding yourself out as being a state actor or if you're an officer of the attorney general well the what the district court relied on here with the definition of officer from the dictionary saying that you are an officer if you are authorized by law to fulfill the duties of the office here it's our position that you hire vice code specifically authorized point of the special counsel to fulfill these duties and so to the extent they are not fulfilling these duties to the extent they may carry on other activities unrelated to change all they would not be officers or one argument might be that an officer of the state would be authorized to carry out all of the duties of the office that he purports to haul not just one specified duty for example that of a  i mean if if if if an officer of the attorney general kemper can carry out the duties of the attorney general in a duties assigned by the attorney general there will be one thing but if you review or if you are hired with one one specific purpose which you don't need to be a officer of the attorney general into four feel collecting debts then it becomes more problematical as to whether you're actually an officer of the attorney and i understand that context and here we are not arguing that everything that the special counsel mi is puts them in the position of an officer under the dictionary act and we're not saying that everything that the might do one could do that these special counsel are authorized to do they have a limited appointment investigations or law enforcement investigations that mike de wine might take on but they were involved in fulfilling their duties to collect the debts owed to the state that is by statutory appointment the analysis of employee versus contractor is simply not involved in the definition of officer and so the idea that someone is  has a different status whether they have a w two relationship or some you know ten ninety nine relationship doesn't factor into whether someone's an officer the only test is under this part of this case is were the special counsel authorized by law to fulfill these duties and here in any case directly supporting your position on that well you b they did the definition in the dictionary and the and so i'm relying on the statute statute that says i we don't have a case involving special counsel appointed under the f t c p a now i couldn't find one either we do not have that there are other cases that are where there was liability found in the f t c p a for persons who were not authorized by law to carry out certain official duties and they were found to have liability but here there was such authorization let me ask you this since you're an independent contractor in as you go about collecting the debts  presume that you do not receive any day to day oversight and supervision by an immediate officer or supervisor in the attorney general's office in other words you delegated the responsibility to going to legs and you've received to do that on your own pursuant to the provisions of the contract you are going into with the state but there's no state general's office who supervising you on a day to day basis as you collect these debts it is a very close working relationship that where there is supervision and requests and sharing of information back and but i don't know if you could describe that day to day supervision the attorney general's office does control and supervise what he's done but if are an independent contractor that by definition means no nobody supervising that's what makes you an independent contractor then i guess it depends i don't know really what the definition of day to day supervision is then i guess i'll concede that well if you're given a  take it there's nothing in the record suggesting one way or another on that topic of yeah we know what they have because you're client is doing this and these specific questions were not addressed i don't know the answer to that person much the question comes is should you call them tomorrow or is this is this type of conduct don't do this is harassing i think there is a mix of the how much i don't know the record it we didn't get that far the record doesn't general i have an understanding and i'm not sure if i have facts sufficient to accurately state this for you are ok thank you thank you please the court counsel my name is my closer represent defendants sheriff in wells boyle judge clay i'm going to take up to just answer the question you asked about supervision there is no one from the attorney general's office sitting in the office however the they review the files on a continuing basis they pull files back they reassigned files and more importantly on a regular basis they're in the office doing audits to ensure that we're complying with everything we're supposed to require comply with and that would particularly be in the areas for instance of security of information and so forth for instance you've got to have a segregated place from all the rest goes on in your office for these collectors because the information that are on tax returns or it might be in the file with the so security number and so forth are absolutely confidential and that's a good way to lose the contract with the attorney general is to not keep that stuff separate according to their very strict guidelines secondly when you look at this case there's a difference between meadows and gilly before you go to quite let me follow up on your first dance of the if the lawyer who's the who's working for the state and the purview of what's in the record i would tell you that various their attorneys and state that my belief is that that's all they do is collect the attorney general i know that within the wiles law office the two attorneys that are signed primer to collection do virtually nothing but creditors work they don't do other law practice if that effect is your question yes yes they don't do anything else but that's because they want to i mean they're not his client told them i have to because you told them else what i say they are signed in the office responsibilities certainly you know it's the limit of those responsibilities i'd like to just dress some attention to one area that i think goes by and although i'm not conceding anything the judge graham did was incorrect one of the issues it's important as relates to my clients is that there was no confusion of any kind because the client had been represented by a lawyer and actually had entered into an agreed judgment in two thousand and eight to pay off the debt she owed the state of ohio for her to wish she made those payments for years then all of a sudden calls one of the collectors at the wiles firm that worked for mark sheriff and said how much do i still owe and if you look at the at the fact that stuff that isn't a file the collector made a response and said you're asked him or bams or so and so let me know if you've got any other questions not only was not a done thing record letter but there was no confusion because ms meadows knew exactly what she was dealing with i think that highlights that ms meadows testified she was confused i'm sorry did miss meadows testify that she was confused i don't know the she ever testified to that your honor i know that on the issue of whether or not she made the phone call she said in an affidavit she didn't remember whether she did or not and of course our collector had records of the call been made in this letter been sent out an answer to it  i don't know that whether or not you can just say i'm confused is accurate because abuse is so self serving that i don't know it's worthy of even consideration as far as evidence is concerned when you have been represented by an attorney and have made those payments for a period at that time of roughly four years mr close this is a question for you the attorney general and for plaintiffs on the bottle the way i'm looking at the case is nothing to do with officer employee just forget that some for the sake of our just listen and assume for the sake of argument the statute applies in that respect now the question is have someone created a false impression as to their source authorization or approval or simulated official communications and you don't get anywhere without falsity and what i don't understand about this case is sending a document with the a g s letterhead gives the the so called bad impression as it gives the impression it came from the attorney general to collect this debt answer it did it did that's what an agent does and so i don't i'm just i'm really struggling with what the issue of fact is about a falsity i don't understand how anyone can say these contracts special counsel contracts didn't make each one of these lawyers like non lawyers who cares agents of the attorney general in collecting these state debts that was accurate from the beginning your honor i would only say that although i'm inclined never to concede anything if i conceded for a minute that officers didn't matter whether it was an officer or an employee or any of that i would agree with you what on this is inaccurate there we're not saying that we are the attorney general we say specifically we're special at any more than eric jones if he was an employee of the attorney general's purporting to be at the attorney general of course he's not the attorney general when you see one name saying mike de wine another name being not mike de wine of course it is an agent of the attorney general it matters not whether it's an independent contractor employee or some other relationship between principals and agents are going to swell major honor thank you thank you and the system attorney general chris khana me in i'm authorized to represent the intervening defendant appellee mike de wine because they've been appointed to do so pursuant to his statutory authority it has nothing to do  manner of supervision or the way i am paid it is the appointment that gives me authority to stand here and represent him and at times the state to get right to your point judge sudden there is nothing false here the decision of the district court must be affirmed because regardless of the office or employee debt collector definition there is nothing deceptive in the accurate portrayal of the relationship in this case it must also i think i think the response they're going to give when i want to make sure i have a chance to respond to it is well this line of argument would not just apply to states when they have special counsel what would happen with say i b m when they have debt collection is the outside debt collector will call an independent contractor to make it analogous but clearly an agent of i b m authorized to collect these debts just and this is now just like this case can they use i letterhead as long as they indicated under their signature outside counsel special counsel to i b m for purposes of collection the debt my understanding is that that would not be acceptable into the f t c p a but here's the difference  the state of ohio is not a corporation it is a state and this brings me to my second point that in order to prevail why is that from the perspective of what's potentially misleading i'm struggling with juan is misleading and one is accurate in this case the independent contractor relationship is as irrelevant as the office or employee distinction because it is the statutory appointment that creates the authority to act it's for instance especially are you making the point that in the i b m example there's no statute there's no statute for i b m to appoint an individual but frankly this is getting a little outside of  what i think the important point of this case from our perspective is that the state of ohio is is different than a corporation in that in order for the defendants to prevail they need to manufacture in unwarranted intrusion a federal law into state activity the state is authorized pursuant to statute to appoint people to represent it in whatever manner the f t c p a cannot regulate how the state appoints individuals to act within the authority of the state over the federal government can do this act who has a debt collector absolutely and that is irrelevant to the ultimate outcome which the district court found in the alternative assuming that their office is not officers or employees they are debt collectors there is no deception they are acting on behalf of the state through the office of attorney general through their appointment absolutely appropriate because there are remedies available to the state in collection have debts that are not available to i b m or any other private company tax refunds can be taken lottery winnings casino of earnings winnings can be taken these are things that private corporations can't do and it also helps to clarify that yes this is from the state certainly we do get a lot of calls is this real so the answer is yes this as a result of this would be made in the mass of many consumers to come first if their tax refund is that at issue i think that is a good reason to put it forward first and that is not prohibited under the f t c p a a sense of urgency is not first if that's the outcome of all of this then it is misleading the f t c papers it prohibits deception not confusion confusion is not prohibited well if you multiple notices if their tax refund is that issue in one instance and not another i believe they deserve fair warning of that and that is also part of the reason of what the lot of the lot of them tell them that it doesn't tell interfering with states and how they organize their operations i guess if i were on their side i would say well that's taken care of by the exemption and that's hang in there so that takes you back to the officer employee question but if you don't fit under that it seems funny to still talk about federal state it seems like that's where they address that and if it doesn't work here you're back to being like i b m so now explain to me your answer before why there's a falsity when i b m does it and not the state so just hear me out the point i'm making is the letterhead is not a lie it's not misleading because what's going on is the person is act as the state and specifically the attorney general to collect this and i quote i'm still i'm sure it's black letter law and that's why you're conceding it be just need to explain it to me when i b m does it in everything is exactly the same as here except there's no statute behind all of this but i am higher says person at the bottom of their you know maybe to make it just like it's as i b m letterhead c e o such and such and then you have the signature line eric for argument that it may be a violation of the f t c why why i don't understand why though what's misleading about it well the debtors here are pursuing a theory that the f t of c p a per permits only one true name no matter how many names may be true only one of them is permitted under the f t c to be true nobody for that i mean is that in the statute of the regs they make an argument based on the use of the singular rather than plural again ignoring the dictionary act in making that argument but assuming all that is true here is my point because the state has created a system where more than one name is in fact true where it is special counsel and the attorney general working pursuant to a statutory arrangement there or for them to to prevail they need to create a regulation under the f t c p a that prohibits the state from using two true names there for them to prevail it would be a backdoor regulation that would not allow this relationship to be truly disclosed in the letter case law that says you can't do my hypothetical in a private setting where you have a b letterhead and it's someone who's not a quote employee of i b m they're a debt collector but they're an agent for i b m it's true there is an i b m debt and they're collecting it for i b m and when it's collected money is going back to county in that case did not have the statutory appointment that is at issue here and i'm sorry i don't have that case name at the tip of my tongue right now and i'm pretty sure that bettors counsel could tell you that true where is the statute that allows the appointment for debt collection here if the attorney general require this letterhead or not it the special counsel of are directed to use it yes because the state would like people to know when communications are coming from the state of the state law says it's only in connection with tax liability that the letterhead is dry we don't read that as being a prohibited prohibition on other uses and even if that were the case if i were to concede that to the debtors in this case that still does not mean that it is false in violation of the f t c i think the better way to put it is it being ambiguous and the attorney general has administrative deference in terms of construing what he can and can't i do and he's decided to say i'm acquiring it and i would agree wholeheartedly with that i've gone way over my time thank you very much judge gilman you had asked earlier about the definition i did not go spend a lot of time on the issue of officer or employee at least in this context whether there was an opinion that actually said that and we couldn't find anything either obviously but we did find the core of the supreme court's advisory opinion concerning special counsel we've cited and i want to commend that further to you for further reading and or review if you haven't already in which the advisory committee did indicate th a tuning theory well i wouldn't call it a two name theory of call it a true name theory ok with it because the two name or training theory runs into the hypothetical i already asked you about where you have the employee with one name and the letterhead having another that prick confirms to me there is no such to name problem right because you agree if if the an employee of the office that sent this were fine right right ok but so what's how do you answer the i b m thing it sounds like there's a good authority for you on that explain to me how that authority works and why it is an inaccuracy when the person is an agent and they have authority to collect this data for their principal i will not respect is doing everything an employee does and i just i just don't get it i will answer that your honor but first i want to reinforce and maybe convince you that this letter these letters didn't come from mike de wine they didn't come from the attorney general's office you're  struggling with that with the notion that the good because these are agents are these are somebody who was contracted with to send them on their behalf that doesn't mean they came directly from the o a g in fact they came from the office of the law office of eric jones and that is the business entity that prepared that letter spent the resources to stuff the envelope and send that letter out did not come from about i'm just i'm just looking for material falsities is all i'm looking for in what seems to me problematic for your position is i don't see him i don't see a falsity to me it's the a g has some is collecting debts on behalf of the state and the a g can do that to employees the a g could do it only by himself or the g could do some combination including outside counsel or outside counsel or are agents of the a g for purposes of collecting that debt and so i just don't get the falsity the principle in every setting is either the a g or the state however you want to look at it and so why is that false i mean to the extent the anxiety created in the recipient is this is coming from the state it's claimed the attorney general that's right it is that's not a lie that's where it's coming from it's coming that's where the money's going back it's actually that the money doesn't go back to the o a g not all of it not all well it goes back and some of it go sustained some of it goes the individual  that's true with any debt collector in a contingency relationship then show me this case that shows why my i b m hypothetical case i think that's your best response to tell me the cases that say no no no you can't have i b m letterhead and respond to the point i read those cases they respond to the point that there's not a falsity because the person really is an agent fry b m or the a g and collecting is that they will tell you that one party  individual or a business has a true name and if you are collecting outside of that true name then you are violating that part of the new name is the a g r i b m no one's denying that your name know the true name of the debt collector it's not the creditor back to two names and that proves mike de wine cannot even do this with employees because you can have two names on those letters you're going to have the letterhead with the wine and you're going to have the employees name pat smith whatever it is doesn't that really explain why under the statute they accept out officer and employees it doesn't say agents it just says officers or employees not agents so if an employee actually signs it there is no f t c be a problem there is no reason to question whether or not it came from a name other than the true name because if the c p a doesn't apply the same thing if mike de wine penned the letter it doesn't apply in agent however it applies and you have to be you have to be clear you wrote your honor in less than a month ago that simply because something is is  a truth doesn't necessarily mean it doesn't mislead and you wrote that in your begin and decisions i think came out last month in this case there might be some truth to the relationship and nobody's denying that they're hired there's a contract but it doesn't mean that they're the ones they created this letter that they put it on the letterhead of the state the individual that received that thinks that mike what about brokeback they have no choice but well errors in legal judgment the supreme court's walden i think th debts it just says for tax it doesn't it doesn't say the opposite it says you have to agree there's ambiguity there well i don't see it is in big u s because it it there's a directive that says special counsel shall use the letterhead but only in connection with collection of tax debts to me that's very clear that's you you get to your theory of the case then would be it's ok in tax settings to do just this thing yes because taxes are not that's under the