United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 12, 2016 Decided July 26, 2016

No. 15-7013

TAWANDA JONES,

APPELLANT

v.

DAVID SEAN DUFEK, SR. AND CACH, LLC,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-00533)

Radi Dennis argued the cause and filed the briefs for

appellant.

Manuel H. Newburger argued the cause for appellees. On

the brief was Mikhael D. Charnoff.

Before: HENDERSON and KAVANAUGH, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: Tawanda Jones owed

$1,050.29 to Bank of America. Bank of America sold the debt
2

to CACH, LLC. That company hired the Law Office of David

Sean Dufek in San Diego, California, to help it collect on the

debt. In 2013, Dufek sent Jones the following letter:

Dear TAWANDA JONES,

This office has been retained to collect the debt owed

by you to CACH, LLC.

As of the date of this letter you owe the sum of

$1,050.29. Because of interest, late charges and other

charges that may vary from day to day the amount due

on the day you pay may be greater.

You are hereby advised: Unless you, the consumer,

notify this office within thirty days after receipt of this

notice that you dispute the validity of this debt or any

portion thereof, the debt will be assumed to be valid by

this office. If you, the consumer, notify this office in

writing within thirty days after receipt of this notice,

that the debt or any portion thereof is disputed, this

office will obtain verification of the debt or a copy of a

judgment against you and a copy of such verification or

judgment will be mailed to you by this office. Upon

your written request within thirty days after receipt of

this notice this office will provide you with the name

and address of the original creditor, if different from the

current creditor.

Please remit your payment to: David Sean Dufek

[Address]

If you would like to make a payment online, please visit

our website: [website URL]
3

Please call our office. The toll free number is

[telephone number].

Sincerely,

[Signature]

Attorney David Sean Dufek

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.

Be advised this is an attempt to collect a debt. Any

information obtained will be used for that purpose.

The letter appeared entirely on one sheet of letterhead captioned

at the top with the words “Law Office of David Sean Dufek.” 

The text of the letter, as well as the disclaimers below the

signature block, were in the same readable font and size.

Jones alleges that this letter was deceptive and violated

three statutes: the Fair Debt Collection Practices Act, 15 U.S.C.

§ 1692 et seq.; the District of Columbia Consumer Protection

Procedures Act, D.C. CODE § 28-3901 et seq.; and the District

of Columbia Debt Collection Law, D.C.CODE § 28-3814 et seq. 

She relies on different sections of each of these statutes, but

there is one basic argument underlying all of her claims: that the

letter falsely implies both that Dufek is meaningfully involved

with the case as an attorney and that the creditor is threatening

to bring a lawsuit to collect the debt. We disagree. The letter

does not threaten any legal action, and the prominent disclaimer

made clear that Dufek was acting only in his capacity as a debt

collector.
4

Section 1692e of the Fair Debt Collection Practices Act

prohibits debt collectors from using “any false, deceptive, or

misleading representation or means in connection with the

collection of any debt.” 15 U.S.C. § 1692e. One such

“representation or means” is a “false representation or

implication that any individual is an attorney or that any

communication is from an attorney.” 15 U.S.C. § 1692e(3). At

first glance this section seems inapplicable. Dufek is an

attorney, and reporting that fact cannot be a “false

representation.”1

 Id. But courts that have considered this

question – ours is not among them – have held that “some

degree of attorney involvement is required before a letter will be

considered ‘from an attorney’ within the meaning of the [federal

act].” Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 301

(2d Cir. 2003); see also Gonzalez v. Kay, 577 F.3d 600, 604 (5th

Cir. 2009). That means that if an attorney is acting only as a

debt collector and has not formed a legal opinion about the case,

he or she cannot send a letter implying otherwise. In other

words, when attorneys attempt to collect a debt, they cannot

mislead debtors about their “level of involvement” in the case. 

Greco v. Trauner, Cohen & Thomas, LLP, 412 F.3d 360, 364

(2d Cir. 2005).

The district court decided Jones’s claims on a motion for

judgment on the pleadings under Rule 12(c), a decision we

review de novo. See Mpoy v. Rhee, 758 F.3d 285, 287 (D.C. Cir.

1

 Jones has belatedly tried to contest certain historical facts,

including whether Dufek himself sent the letter and whether Dufek

exists at all. These additional claims largely rehash Jones’s main

argument that Dufek misrepresented his involvement in the case. To

the extent these claims differ from that overarching argument, Jones

did not raise them in the district court and we will not consider them

now. See Anglers Conservation Network v. Pritzker, 809 F.3d 664,

671 n.6 (D.C. Cir. 2016).
5

2014). Applying a “least sophisticated consumer standard,”2

 the

court found that the letter did not misrepresent the extent of

Dufek’s involvement in the case, and we agree. See Jones v.

Law Office of David Sean Dufek, 77 F. Supp. 3d 134, 138, 140

(D.D.C. 2015). Dufek was an attorney acting as a debt collector,

and the letter said precisely that. No one at his law office had

reviewed the case. Again, the letter so stated.

Jones argues that using the title “attorney” in the letterhead

and signature block impermissibly implies that an attorney has

evaluated the case from a legal standpoint. Appellant Br. 31-32;

see Avila v. Rubin, 84 F.3d 222, 229 (7th Cir. 1996). This boils

down to the argument that under the federal act, attorneys

cannot act as debt collectors unless they conceal the fact that

they are attorneys. But this is not the theory of the Fair Debt

Collection Practices Act. The Act assumes that attorneys may

collect debts so long as they do not mislead debtors. See Greco,

412 F.3d at 364.

2

 In evaluating whether a collection letter is deceptive, some

courts have applied a “least sophisticated consumer” standard, see,

e.g., Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993), and

others have applied an “unsophisticated consumer” standard, see, e.g.,

Gammon v. GC Servs. Ltd., 27 F.3d 1254, 1257 (7th Cir. 1994). The

term “unsophisticated” is probably more accurate because the “least

sophisticated” consumer is “not merely ‘below average,’ he is the very

last rung on the sophistication ladder,” and “would likely not be able

to read a collection notice with care (or at all), let alone interpret it in

a reasonable fashion.” 27 F.3d at 1257. In practice, “least

sophisticated” and “unsophisticated” appear to be the same. Under

either conception, the basic goal is to prevent debt collectors from

deceiving naive consumers, but not to hold collectors liable simply

because their letters may be deceptive under “bizarre or idiosyncratic

consumer interpretations.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th

Cir. 2009).
6

Attorneys who collect debts therefore must not falsely

represent or imply that they have formed a legal opinion

regarding the debtor’s liability. Here, Dufek included a

conspicuous disclaimer describing his involvement in the matter. 

The letter did not threaten any legal action “that [could not]

legally be taken or that [was] not intended to be taken.” 15

U.S.C. § 1692e(5). The letter made no reference to legal action. 

See Brown v. Card Serv. Ctr., 464 F.3d 450, 451 (3d Cir. 2006)

(“Refusal to cooperate could result in a legal suit being filed for

collection of the account.”); Bentley v. Great Lakes Collection

Bureau, 6 F.3d 60, 62 (2d Cir. 1993). The letter did not give any

indication about what the creditor might do if Jones failed to pay

the debt. It simply said that Jones owed a debt and that she

should send her payment to Dufek’s office. The only future

consequence the letter discussed was the statutorily required

disclosure that if Jones did not dispute the debt’s validity within

thirty days, Dufek’s office would presume that it was valid. See

15 U.S.C. § 1692g(a)(3).

Here again, Jones falls back on the idea that using the

“attorney” title is enough to constitute an implicit threat of legal

action. But lawyers do more than just file lawsuits. Sometimes,

they try to collect debts, and the Fair Debt Collection Practices

Act does not prohibit them from doing so. The fact that an

attorney was involved in collecting Jones’s debt does not mean

that the collection attempt constituted a threat to take legal

action.3

3

 Jones also alleged that Dufek misrepresented that he “was

authorized to take legal action against consumers in the District of

Columbia, because Dufek is a California law firm not licensed to

practice law in the District of Columbia.” Jones, 77 F. Supp. 3d at

138. But Dufek’s letter said nothing about his intention or authority

to file a lawsuit.
7

Jones criticizes the letter’s disclaimer for stating only that

no attorney had reviewed the case “at this time.” Appellant Br.

42. According to Jones, these words imply that at some future

time, an attorney may review the case and file a lawsuit. That

may be so. But the federal act prohibits only threats to take

legal action; merely leaving open the possibility of attorney

review that could lead to legal action does not fit the bill.

The disclaimer Dufek included is commonly known as a

“Greco disclaimer,” see, e.g., Luftig v. Sokoloff, No.

13-CV-4313, 2015 WL 151463, at *1 n.1 (E.D.N.Y. Jan. 13,

2015), because it tracks language the Second Circuit approved

in Greco v. Trauner, Cohen & Thomas, LLP, 412 F.3d 360 (2d

Cir. 2005). The collection letter in Greco stated: “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.” 412 F.3d at 361. The Second Circuit

held that this language was sufficient to “make clear . . . that the

law firm or attorney sending the letter [was] not, at the time of

the letter’s transmission, acting as an attorney.” Id. at 364.

Since Greco, many circuits have agreed 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. 

See, e.g., Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055,

1063 (9th Cir. 2011); Lesher v. Law Offices of Mitchell N. Kay,

PC, 650 F.3d 993, 1002-03 (3d Cir. 2011); Gonzalez v. Kay, 577

F.3d 600, 606 (5th Cir. 2009); Kistner v. Law Offices of Michael

P. Margelefsky, LLC, 518 F.3d 433, 439 (6th Cir. 2008). Jones

argues that the disclaimer in Dufek’s letter was “obscured”

because it followed the signature block rather than appearing in

the body of the letter. Appellant Br. 14. But there is no relevant

difference we perceive between a disclaimer in the body of the

letter before the signature block and one after the signature
8

block. Dufek’s disclaimer was in the same font and size as the

body of the letter, and a portion of it was in bold typeface. 

Compare Kistner, 518 F.3d at 439 (“no disclaimer”); Gonzalez,

577 F.3d at 606 (“disclaimer on the back [of the letter]”); Wilson

v. Quadramed Corp., 225 F.3d 350, 358 (3d Cir. 2000)

(disclaimer in “grey ink on a light shade of grey computer paper,

making it difficult to read, and in a type size less than 1/10 [of

an inch]”); see also Campuzano–Burgos v. Midland Credit

Mgmt., 550 F.3d 294, 299 (3d Cir. 2008) (“Even the least

sophisticated debtor is bound to read collection notices in their

entirety.”). We do not mean to imply that a disclaimer must be

in the same font and size as the body of the letter, but the fact

that it was in this case further indicates that this disclaimer was

not hidden.

Jones’s argument focuses on § 1692e(3) and (5) of the

federal act, which deal with attorney involvement and threats of

legal action. In passing, she invokes several other sections

containing general prohibitions against deception, unfairness,

and false representations in connection with debt collection.4

She offers no separate arguments in support of these claims. 

Instead, she simply says that because the letter falsely implied

than an attorney was involved and threatened legal action, the

letter was a fortiori deceptive and unfair in a general sense. We

4

 In addition to 15 U.S.C. § 1692e(3) and (5), Jones relies on

§ 1692e(2)(A) (prohibiting “[t]he false representation of . . . the

character, amount, or legal status of any debt”); § 1692e(10)

(prohibiting “[t]he use of any false representation or deceptive means

to collect or attempt to collect any debt or to obtain information

concerning a consumer”); § 1692j(a) (prohibiting the use of forms that

create “the false belief in a consumer that a person other than the

creditor of such consumer is participating in the collection of or in an

attempt to collect a debt”); and § 1692f (prohibiting “unfair or

unconscionable means to collect or attempt to collect any debt”).
9

have held that the letter did not contain any such false

implications or threats, so we reject the remainder of her

arguments under the federal act.

We dispose of her claims under the District of Columbia

statutes on similar grounds. Jones argues that Dufek and CACH

violated the D.C. Consumer Protection Act, which protects “any

consumer” from misrepresentation, misleading omissions, and

other “[u]nlawful trade practices.” D.C. CODE § 28-3904. But

here too, Jones relies entirely on her allegations that the letter

falsely implied that an attorney was involved and that the

defendants were threatening a lawsuit. In their briefs, the parties

argue at length about certain threshold issues – in particular,

whether Jones is a “consumer” or debt collection is a “trade

practice.” The district court concluded that the D.C. Act did not

apply because “a loan of money is not a purchase or lease of

goods or services.” Jones, 77 F. Supp. 3d at 139 (italics

omitted). The court’s interpretation may be incorrect; the D.C.

Act states specifically that “goods and services . . . includes

consumer credit . . ..” D.C. CODE § 28-3901(a)(7). However,

even if the court erred, its mistake was not fatal. The district

court’s interpretation was only an “additional reason” that

Jones’s claims under the Consumer Protection Act fail. Jones,

77 F. Supp. 3d at 139. Even if the Act applied, it would not help

Jones because the letter did not falsely imply attorney

involvement or threaten a lawsuit. We therefore affirm the

district court’s dismissal of this claim without reaching the

court’s interpretation of the scope of the Consumer Protection

Act.

The other consumer statute Jones invokes – the D.C. Debt

Collection Law – largely mirrors the language of the Fair Debt

Collection Practices Act. Compare D.C. CODE § 28-3814(f)

(prohibiting “any fraudulent, deceptive, or misleading

representation or means to collect or attempt to collect claims or
10

to obtain information concerning consumers”) with 15 U.S.C.

§ 1692e(10) (prohibiting “any false representation or deceptive

means to collect or attempt to collect any debt or to obtain

information concerning a consumer”). Jones has not argued that

this D.C. law gives her any more protection than the federal act. 

We therefore affirm the district court’s dismissal of Jones’s

claim under that law as well. The district court discussed the

Debt Collection Law only briefly, see Jones, 77 F. Supp. 3d at

137-38, likely because separate analysis of that law would have

been largely redundant. This was entirely proper; a “court is not

required to state findings or conclusions when ruling on a

motion under Rule 12.” FED. R. CIV. P. 52(a)(3).5

The district court properly resolved these questions as a

matter of law on a motion under Rule 12(c). See Jones, 77 F.

Supp. 3d at 137. We agree that no reasonable juror could find

the letter deceptive. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986); see also, e.g., Alexander v. City of

Chicago, 994 F.2d 333, 336 (7th Cir. 1993) (“[T]he standard

courts apply for summary judgment and for judgment on the

pleadings ‘appears to be identical.’”) (quoting 5A CHARLES A.

WRIGHT AND ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 1368 at 530 (1990)). As the Fifth Circuit put it,

“There are some letters that, as a matter of law, are not

deceptive . . ..” Gonzalez, 577 F.3d at 606.

One extraneous matter remains. While their Rule 12(c)

motion was awaiting a ruling, the defendants filed a motion for

a protective order under Rule 26(c) to stop Jones from issuing

“unauthorized discovery requests.” A month later, the court

5

 Because the district court properly found that Jones’s claims fail

on their merits, it also denied her motion for class certification as

moot. See Thomas v. Knight, No. 03-7041, 2003 WL 22239653, at *1

(D.C. Cir. Sept. 24, 2003).
11

denied this motion in a Minute Order. See Minute Order

denying Motion to Quash, No. 1:14-cv-00533-RJL (D.D.C.

Sept. 7, 2014). In response, Jones moved for attorneys fees

under Federal Rule of Civil Procedure 26(c)(3). This rule

incorporates Rule 37(a)(5) and states that if the court denies a

motion for a protective order, the court “must, after giving an

opportunity to be heard, require the movant . . . to pay” the

opposing party’s expenses and attorney’s fees. Rule 37(a)(5)

also states that “the court must not order this payment if the

motion was substantially justified or other circumstances make

an award of expenses unjust.” FED. R. CIV. P. 37(a)(5)(B).

District courts have “considerable discretion” to manage

discovery. United States v. Philip Morris Inc., 347 F.3d 951,

955 (D.C. Cir. 2003). In particular, courts “possess broad

discretion to impose sanctions for discovery violations under

Rule 37.” Parsi v. Daioleslam, 778 F.3d 116, 125 (D.C. Cir.

2015). In 1970, Rule 37 was amended and the section for

awarding attorney’s fees was rephrased in mandatory terms –

the court “must” grant attorney’s fees under certain conditions

and “must not” grant them under others. FED. R. CIV. P.

37(a)(5)(B). The conditions are fairly vague, particularly the

catch-all term that the court must not grant fees if doing so

would be “unjust.” Id. The advisory committee explained that

this amendment did “not significantly narrow the discretion of

the court” to award attorney’s fees for discovery violations. 

FED. R. CIV. P. 37 advisory committee’s notes to 1970

amendments; see Marquis v. Chrysler Corp., 577 F.2d 624, 642

(9th Cir. 1978).

The district court did not explicitly deny the motion for

attorney’s fees. Its failure to award fees may be taken as a

denial of the motion. Rule 37(a)(5) states that under certain

circumstances, the court “must not order this payment,” and that

is what the court did. FED. R. CIV. P. 37(a)(5); see also FED. R.
12

CIV. P. 52(a)(3). The district court did not abuse its discretion

in coming to this decision. Jones’s counsel had asked for

$29,241 for sixty-five hours of work on this discovery issue.6

The court had discretion to find that this award would be

excessive and therefore “unjust.” In upholding the district

court’s refusal to grant Jones’s motion, we are mindful that Rule

26(c)(3) is meant to prevent needless litigation and wasteful

discovery disputes. Requiring still further proceedings in this

case would not be consistent with that objective.

Accordingly, we affirm the district court’s judgment.

So ordered.

6

 Jones’s counsel initially asked for $22,761 for fifty-six hours of

work, but later increased that figure by nearly 30% for the additional

nine hours of work required to respond to Dufek’s opposition to

paying attorney’s fees. Compare Motion for Attorney Fees at 8, No.

1:14-cv-00533-RJL (D.D.C. Sept. 15, 2014), ECF No. 28; with Errata

Reply to Defendant’s Opposition to Motion for Attorney Fees at 7,

No. 1:14-cv-00533-RJL (D.D.C. Oct. 14, 2014), ECF No. 31.