### In the



# United States Court of Appeals

For the Seventh Circuit

Nos. 19

‐ 1210 & 19

‐ 1334

E RIN J OHNSON

, Plaintiff

‐ Appellant

, Cross

‐ Appellee

,

v.

E NHANCED R ECOVERY C OMPANY

, LLC,

Defendant

‐ Appellee, Cross

‐ Appellant.

Appeals from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 16 CV 330

— Philip P. Simon

, Judge.

A RGUED S EPTEMBER 13, 2019

— D ECIDED J UNE 9, 2020

Before B AUER

, R OVNER

, and S YKES

, Circuit Judges

.

R OVNER

, Circuit Judge. Erin Johnson filed this putative class

action against Enhanced Recovery Company, LLC (ERC),

alleging that it sent her a misleading collection letter in

violation of the Fair Debt Collection Practices Act (“FDCPA”).

15 U.S.C. §§ 1692

‐ 1692p. ERC moved to dismiss Johnson’s2 Nos. 19

‐ 1210 & 19

‐ 1334

claim on the grounds that no reasonable consumer could have

been misled by its letter. The district court denied ERC’s

motion and certified a class composed of all individuals in

Indiana who had received a collection letter like Johnson’s

from ERC between July 2016 and August 2017. See Fed. R. Civ.

P. 23(a) and (b)(3) (describing class certification requirements).

On the parties’ cross motions for summary judgment, the

district court entered judgment for ERC. Johnson appeals, and

ERC cross appeals from the denial of its motion to dismiss

Johnson’s complaint under Federal Rule of Civil Procedure

12(b)(6). Because Johnson failed to present any evidence

beyond her own opinion that ERC’s letter was misleading, we

affirm the judgment of the district court.

I.

The facts are straightforward. ERC is a third

‐ party debt

collector that attempted to collect on a delinquent debt of

Johnson’s arising from a broken contract for a cell phone with

Sprint wireless. In early March 2016, ERC acquired Johnson’s

debt from Sprint and began its collection efforts. Such efforts

are highly regulated by the FDCPA, which was enacted to

eliminate the use of abusive debt collection practices against

vulnerable debtors. 15 U.S.C. § 1692(e) (congressional findings

and statement of purpose). To that end, § 1692e broadly

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

misleading representation” in connection with the collection of

a debt.

In total, ERC sent Johnson three dunning letters dated,

respectively, March 8, April 21, and June 6, 2016. Johnson,

whose version of events we accept as true at this stage of theNos. 19

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proceedings, denies having ever seen the March 8 letter. It

stated in relevant part:

COLLECTION NOTICE

ERIN JOHNSON

Our records indicate that your balance with Sprint

remains unpaid; therefore your account has been

placed with ERC for collection efforts.

Upon receipt and clearance of $1,094.72, your

account will be closed and collection efforts will

cease.

This letter serves as notification that your delinquent

account may be reported to the national credit

bureaus.

Unless you dispute the validity of the debt, or any

portion thereof, within thirty (30) days after your

receipt of this notice, the debt will be assumed to be

valid by us.

ERC mailed Johnson the second dunning letter, which

forms the basis of her lawsuit, forty

‐ four days later, on April

21, 2016. The top right corner of the letter contains the date and

a heading identical to one appearing in the March letter. That

heading identifies the creditor as Sprint, lists an account

number, and says in bold, capital letters, “YOU HAVE OP

‐

TIONS.” As relevant to Johnson’s claim, the remainder reads

as follows:

Our records indicate that your balance with Sprint

remains unpaid; therefore your account has been4 Nos. 19

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‐ 1334

placed with ERC for collection efforts. We are

willing to reduce your outstanding balance by

offering discounted options.

Option 1: Pay the settlement of $875.78, please remit

by May 26, 2016.

Option 2: Pay the settlement of $930.51, payable in 2

monthly payments of $465.26.

Option 3: Pay the settlement of $985.25, payable in 3

monthly payments of $328.42.

We are not obligated to renew this offer.

This letter serves as notification that your delinquent

account may be reported to the national credit

bureaus.

Payment of the offered settlement amount will stop

collection activity on this matter. We will inform

Sprint once the payment(s) is/are posted. Payment of

the settlement amount will not restore your service

with Sprint. If you wish to establish service with

Sprint at a future date, the remaining balance must

be paid in full prior to the consideration of any

future services being granted.

Unless you dispute the validity of the debt, or any

portion thereof, within thirty (30) days after your

receipt of this notice, the debt will be assumed to be

valid by us.

ERC reported Johnson’s delinquent Sprint account to the

national credit bureaus on April 24, 2016. It sent the third andNos. 19

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‐ 1334 5

final dunning letter to Johnson on June 6, 2016. With the

exception of the specifics of the three settlement options, which

were for further reduced amounts and specified a date in July

as opposed to May to remit payment, the June letter was

identical to the April letter.

In July that same year, Johnson filed this suit, maintaining

that the April letter was misleading in violation of § 1692e. She

focused primarily on the sentence, “This letter serves as

notification that your delinquent account may be reported to

the national credit bureaus.” According to Johnson, the

statement that her debt may be reported to credit bureaus was

deceptive. As Johnson read the letter, the phrase “may be

reported” implied future reporting, and by the time she

received the letter her debt had already been reported. She also

singled out the sentence near the end of the letter stating,

“Payment of the offered settlement amount will stop collection

activity on this matter.” Johnson claimed this statement

amounted to a promise by ERC that if she took advantage of

the first settlement offer and paid by May 26, then ERC would

not report her debt to the national credit bureaus.

As noted above, the district court declined to dismiss

Johnson’s claim for failure to state a claim under Fed. R. Civ.

P. 12(b)(6), noting that whether a communication is confusing

or misleading under § 1692e is ordinarily a question of fact.

Because the district court believed the allegedly confusing

interpretation of the letter proposed by Johnson was at least

“plausible,” it concluded that dismissal would be premature.

After class certification and on the parties’ cross

‐ motions for

summary judgment, however, the court granted summary

judgment to ERC based on Johnson’s failure to adduce6 Nos. 19

‐ 1210 & 19

‐ 1334

necessary evidence that the language in question would be

confusing or misleading to a significant fraction of the popula

‐

tion. Johnson appeals, arguing both that summary judgment

for ERC was inappropriate, and that she is entitled to summary

judgment. ERC cross

‐ appeals, claiming that the district court

erred by denying its motion at the outset to dismiss Johnson’s

claim for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).

II.

We begin with ERC’s contention that the district court

should have dismissed Johnson’s complaint for failure to state

a claim for relief under Rule 12(b)(6). 1 In reviewing a motion to

dismiss, we accept as true all well

‐ pleaded factual allegations

and draw all reasonable inferences in favor of the plaintiff. See,

e.g., Heredia v. Capital Mgmnt. Servs., L.P.

, 942 F.3d 811, 814 (7th

Cir. 2019). Moreover, complaints alleging misleading commu

‐

nications under § 1692e are rarely subject to dismissal for

failure to state a claim because in this circuit, whether a

communication is false, deceptive, or misleading under the

FDCPA is a question of fact. See Evory v. RJM Acquisitions

Funding, L.L.C.

, 505 F.3d 769, 776 (7th Cir. 2007) (“[W]e treat

issues of deception as ones of fact rather than of law.”);

1 ERC’s cross

‐ appeal is premised on the argument that the language in its

collection letter does not violate the FDCPA as a matter of law. Thus, it

argues that granting its motion would “enlarge” the district court’s

judgment and spare ERC from defending against future FDCPA claims in

other jurisdictions. Claiming that a judgment in its favor would still have

no impact beyond herself and the certified class members, Johnson disputes

that ERC is pursuing a proper cross

‐ appeal. Because we affirm the district

court’s conclusion that Johnson’s complaint was not subject to dismissal

under Rule 12(b)(6), it is unnecessary to settle this controversy.Nos. 19

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‐ 1334 7

Zemeckis v. Glob. Credit & Collection Corp.

, 679 F.3d 632, 636 (7th

Cir. 2012) (“As a general matter, we view the confusing nature

of a dunning letter as a question of fact that, if well

‐ pleaded,

avoids dismissal on a Rule 12(b)(6) motion.”) (internal citation

omitted); McMillan v. Collection Prof’ls Inc.

, 455 F.3d 754, 760

(7th Cir. 2006) (noting that inquiries under § 1692e “are

necessarily fact bound” and that in “most instances” applica

‐

tion of Rule 12(b)(6) “will require that the plaintiff be given an

opportunity to demonstrate that his allegations are supported

by a factual basis responsive to the statutory standard”).

Despite this general rule, a claim under § 1692e may be

dismissed when it is clear from the face of the communication

that no reasonable person, however unsophisticated, would be

deceived by the allegedly false or misleading statement. See

Heredia

, 942 F.3d at 814; Taylor v. Cavalry Inv., L.L.C.

, 365 F.3d

572, 574–75 (7th Cir. 2004) (“If it is apparent from a reading of

the letter that not even ‘a significant fraction of the population

‘ would be misled by it... the court should reject it without

requiring evidence beyond the letter itself.”).

ERC offers two arguments to support its claim that John

‐

son’s proposed interpretation of its April letter is so implausi

‐

ble as to be subject to dismissal. First, it insists that the state

‐

ment “your delinquent account may be reported to the national

credit bureaus” could not be misleading because it tracks

certain safe harbor model language in Regulation V, which

governs the Fair Credit Reporting Act. See 12 C.F.R. Part 1022,

App. B, Model Notices of Furnishing Negative Information,

Model Notice B

‐ 1; see also Evory

, 505 F.3d at 776 (noting that

dismissal of a § 1692e claim on the pleadings may be appropri

‐

ate when defendant used statutory language or our safe

‐ harbor8 Nos. 19

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‐ 1334

language). Johnson, however, notes that the allegedly confus

‐ ing aspect of the phrase “may be reported” stemmed from the

fact that her debt had already been reported by the time she

received the letter. Thus, she points out, assuming the Fair

Credit Reporting Act safe harbor language is even relevant 2

, ERC should have used the proposed language in Model Notice

B

‐ 2, which states in relevant part, “We have told a credit bureau

about a late payment, missed payment, or other default on

your account. 12 C.F.R. Part 1022, App. B, Model Notice B

‐ 2

(emphasis added). In light of the question whether the Fair

Credit Reporting Act applies at all to ERC and if so, whether it

should have used Model Notice B

‐ 1 (“We may report... ) or B

‐ 2

(“We have told a credit bureau...”), ERC’s use of the model

language does not eliminate the factual question of whether

Johnson stated a claim under the FDCPA.

Second, ERC dismisses as “bizarre” Johnson’s proposed

interpretation of the sentence, “Payment of the offered settle

‐

ment amount will stop collection activity on this matter.” As

ERC describes it, Johnson is arguing that the phrase “stop

collection activity” amounts to a misleading promise to

“ prevent any collection activity,” an interpretation ERC deems

obviously unsupportable because the letter itself represents

collection activity.

But ERC misstates Johnson’s claim. Johnson never claims

the letter falsely suggests that she could prevent any collection

2 The quoted safe harbor language applies to “financial institutions,”

defined as banks, savings and loan associations, credit bureaus, or other

holders of transaction accounts, none of which would obviously apply to

ERC. See 15 U.S.C. § 1681a(t) (defining the term “financial institution”).Nos. 19

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activity by paying the settlement offer. She argues that by

including the date of May 26, 2016 with the first listed settle

‐

ment offer ($875.78), and later stating that the delinquent

account “may be reported” to credit bureaus, followed by the

assurance that “[p]ayment of the offered settlement amount

will stop collection activity on this matter,” the April letter

gave the impression that credit reporting could be avoided by

accepting the first listed settlement offer and paying by May

26th. Whether a significant fraction of debtors would be misled

as Johnson describes is questionable, but it is not so implausi

‐

ble as to land her case in the narrow class of cases in which the

answer to the factual question of whether the communication

is deceptive can be resolved from the face of the pleadings. See

Heredia

, 942 F.3d at 814 (“‘[I]n determining whether a state

‐

ment is confusing or misleading, a district court must tread

carefully because district judges are not good proxies for the

‘unsophisticated consumer’ whose interest the statute protects.

Accordingly, Rule 12(b)(6) dismissal on that issue is appropri

‐

ate only if there is no set of facts consistent with the pleadings

under which the plaintiffs could obtain relief.’” (quoting

Marquez v. Weinstein, Pinson & Riley, P.S.

, 836 F.3d 808, 812 (7th

Cir. 2016))).

We thus turn to Johnson’s argument that summary judg

‐

ment for ERC was improper and that the misleading nature of

the April collection letter entitles her to summary judgment.

We review the district court’s summary judgment ruling de

novo, construing all facts and reasonable inferences in favor of

the non

‐ moving party. Richards v. PAR, Inc.

, 954 F.3d 965, 967

(7th Cir. 2020). Summary judgment is appropriate when there10 Nos. 19

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‐ 1334

are no disputed material facts and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a).

As described above, § 1692e of the FDCPA 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. Although § 1692e also provides

a non

‐ exhaustive list of examples of proscribed conduct,

Johnson’s claim turns entirely on what she characterizes as the

deceptive nature of the April letter.

In determining whether a communication is “false, decep

‐

tive, or misleading,” we evaluate the disputed language from

the objective standpoint of an “unsophisticated debtor.” See

Heredia

, 942 F.3d at 815. Our hypothetical unsophisticated

debtor is “uninformed, naive,” and “trusting,” but does

possess “rudimentary knowledge about the financial world,”

and “is wise enough to read collection notices with added

care.” Boucher v. Fin. System of Green Bay, Inc.

, 880 F.3d 362, 366

(7th Cir. 2018) (quoting Williams v. OSI Educ. Servs., Inc.

, 505

F.3d 675, 678 (7th Cir. 2007) (citations and internal quotations

omitted)). She is also “capable of making basic logical deduc

‐

tions and inferences” and possesses “reasonable intelligence.”

Heredia

, 942 F.3d at 815 (citation and internal quotations

omitted). Though “‘our unwary debtor may tend to read

collection letters literally, he does not interpret them in a

bizarre or idiosyncratic fashion.’” Id. (quoting Pettit v. Retrieval

Masters Creditor Bureau, Inc.

, 211 F.3d 1057, 1060 (7th Cir.

2000)). In short, “[t]he Act protects the unsophisticated debtor,

but not the irrational one.” White v. Goodman

, 200 F.3d 1016,

1020 (7th Cir. 2000). Accordingly, it is not enough for a plaintiff

to simply assert confusion; she must demonstrate that theNos. 19

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“language of the letters unacceptably increases the level of

confusion.” Durkin v. Equifax

, 406 F.3d 410, 415 (7th Cir. 2005)

(quoting Johnson v. Revenue Mgmt. Corp.

, 169 F.3d 1057, 1060

(7th Cir. 1999)) (internal quotations omitted).

We apply this standard by asking whether the disputed

language “could well confuse a substantial number of recipi

‐

ents.” Pantoja v. Portfolio Recovery Assoc., LLC

, 852 F.3d 679, 686

(7th Cir. 2017) (citation and internal quotation omitted). To

answer this question, we have categorized §1692e cases into

three groups. The first category consists of cases where the

challenged language is obviously not misleading and no

extrinsic evidence is required to demonstrate that a reasonable

unsophisticated consumer would not be misled. Id. at 686–87.

The second category includes those cases where the debt

collection language is not deceptive or misleading on its face,

but could be construed so as to be confusing or misleading to

the unsophisticated consumer. We have held that in these

cases, a plaintiff cannot prevail without producing extrinsic

evidence, such as consumer surveys, tending to show that

unsophisticated consumers are in fact confused or misled by

the challenged language. Id. The final category of cases

involves language that is plainly false, deceptive, or mislead

‐ ing, and therefore requires no additional evidence for the

plaintiff to succeed on her claim. Id. ; see also Janetos v. Fulton

Friedman & Gullace, LLP

, 825 F.3d 317, 322–23 (7th Cir. 2016)

(describing three categories of cases applicable to claims under

§ 1692e based on its general prohibitions against false, decep

‐

tive, or misleading statements).

Johnson insists that no additional evidence is required

beyond her own opinion that a reasonable but unsophisticated12 Nos. 19

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‐ 1334

consumer would interpret the April 21 letter as a “threat to

engage in credit reporting” unless the payment was made by

May 26, 2016, the date listed with the first settlement offer. Her

interpretation turns on what she alleges is the misleading

message conveyed by the statement “[t]his letter serves as

notification that your delinquent account may be reported to

the national credit bureaus” followed in the next paragraph by

the statement “[p]ayment of the offered settlement amount will

stop collection activity on this matter.” First, Johnson insists

that the phrase “may be reported to the national credit bu

‐

reaus” conveys a future possibility that her debt could be

reported, when in fact by the time she received the letter or

shortly thereafter it had already been reported. The problem

with this interpretation, which the district court recognized, is

that although the word “may” is certainly capable of referring

to future events, that is not its only possible usage. According

to ERC, the advisement that the debt “may be reported” is

intended solely to make the debtor aware that ERC is capable of

reporting the outstanding debt.

Both proposed interpretations are consistent with com

‐ monly understood meanings of “may.” The first dictionary

definition of “may” offers two possibilities “a

– used to

indicate a possibility or probability” or “b: have permission to

... – used nearly interchangeably with can .” See Merriam

‐

Webster Dictionary

, “Definition of may ,” https://www.merriam

‐

webster. com/dictionary/may (emphasis in original) (last

visited May 27, 2020). If used to mean has permission to, the

letter’s “notification” that the debtor’s delinquent account

“may be reported” simply apprises the recipient that ERC has

permission to report the delinquent debt. Whether that report

‐Nos. 19

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‐ 1334 13

ing has occurred already, has yet to occur, or never occurs is

irrelevant to the truth or falsity of the statement. Instead, the

notification is simply a statement of fact. See Taylor

, 365 F.3d at

575 (rejecting claim of confusion arising from a “clear state

‐

ment of a truism”). And the fact that a statement explaining

ERC’s power to report the delinquent debt is followed by

another statement (in a new paragraph) explaining that paying

the settlement amount will stop collection activity but not

restore Johnson’s Sprint service is certainly not on its face a

promise or guarantee that if the offered settlement is paid, then

the delinquent debt will not be reported. Nor is there anything

in the fact that the first—and lowest—listed settlement offer of

$875.78 includes a “remit by” date of May 26, 2016 that

transforms the later freestanding statement that ERC may

report the delinquent debt into a guarantee that reporting can

be avoided by remitting payment before May 26th. Accord

‐ ingly, Johnson’s claim does not fall into the third category of

cases involving plainly false, deceptive, or misleading lan

‐

guage. Nor, as discussed above, is the challenged language of

the letter so “plainly and clearly not misleading” that her claim

belongs in the first category. Janetos

, 825 F.3d at 322–23.

Johnson’s claim thus belongs in the second category, for

which she bears the burden of producing evidence of confu

‐

sion (beyond her own) using an objective measure such as “a

carefully designed and conducted consumer survey.” Sims v.

GC Servs. L.P.

, 445 F.3d 959, 963 (7th Cir. 2006) (internal

quotations and citation omitted). As the district court recog

‐

nized, her failure to do so dooms her claim.

Rather than confront this fatal flaw, Johnson insists that no

further evidence is required when a communication has two14 Nos. 19

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‐ 1334

possible readings, one of which is misleading. To support this

position, she cites cases from four other circuits. None apply

here. Tellingly, each of the circuits cited by Johnson uses the

“least sophisticated consumer” standard that we have specifi

‐ cally rejected to assess whether a communication is confusing

under the FDCPA. See Pettit

, 211 F.3d at 1060 (“[W]e have

rejected the ‘least sophisticated debtor’ standard used by some

other circuits because we don’t believe that the unsophisticated

debtor standard should be tied to ‘the very last rung on the

sophistication ladder.’”) (quoting Gammon

, 27 F.3d at 1257).

Moreover, none have any bearing on Johnson’s failure to

provide any outside evidence as to the likelihood that a

hypothetical unsophisticated debtor (or even the least sophisti

‐

cated debtor) would in fact be confused by the language in

ERC’s letter.

Johnson next maintains that she need not present extrinsic

evidence of confusion because ambiguity itself is evidence of

confusion. Johnson suggests it is irrelevant whether her claim

is analyzed under the “least sophisticated” consumer standard

or under our “unsophisticated consumer” standard because

under what she refers to as the “ambiguity principle,” she need

only demonstrate the letter could plausibly be read in two

possible ways, one of which is deceptive. Johnson’s framing of

the argument, however, reveals its fundamental flaw: although

such a showing may be sufficient to withstand dismissal for

failure to state a claim, at this stage of the proceedings, Johnson

must do more than simply propose a potentially misleading

interpretation of ERC’s letter. Indeed, that is why the standard

used does matter: “because we have rejected the ‘least sophisti

‐

cated consumer’ standard, a letter must be confusing to ‘aNos. 19

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‐ 1334 15

significant fraction of the population.’” Lox v. CDA, Ltd.

, 689

F.3d 818, 821 (7th Cir. 2012) (quoting Taylor

, 365 F.3d at 574).

But Johnson has failed completely to demonstrate that a

significant—indeed any (beyond herself)—fraction of the

population would read the April letter as promising to forgo

credit bureau reporting if Johnson paid her debt by May 26th.

See Pettit

, 211 F.3d at 1061 (noting that debtor could not prevail

on FDCPA claim “because at the summary judgment stage of

a case she must do more than merely speculate about how a

naive debtor would interpret the letter”).

By citing bits and pieces of inapposite cases 3

, Johnson

sidesteps entirely the requirement, applicable here, that the

plaintiff bears the burden of demonstrating that language not

misleading on its face yet that could plausibly be read in a

misleading or deceptive manner would in fact mislead a

“significant fraction” of the population. As described above,

Johnson’s complaint proposes an interpretation of ERC’s letter

that could be confusing to an unsophisticated debtor. But

without evidence of how such a debtor would actually read the

3 For example, Johnson quotes Pantoja

, 852 F.3d at 687, for the principle that

“[w]here the FDCPA requires clarity

... ambiguity itself can prove a

violation.” Although she relies heavily on Pantoja

, the issue there involved

a dunning letter attempting to collect a time

‐ barred debt, and we noted that

external evidence of confusion was unnecessary because the letter

exemplified “careful and deliberate ambiguity

... chosen to obscure from

the debtor that the law prohibits the collector from suing to collect his debt

or even threatening to do so.” Id. at 687. There is no evidence here of similar

“deliberate ambiguity” or attempts to obfuscate the debtor’s rights in ERC’s

letter. Thus Pantoja

, like other cases cited by Johnson, does not support her

claim that she needed not present evidence as to whether an unsophisti

‐

cated debtor would be confused by the April letter.16 Nos. 19

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‐ 1334

letter, Johnson cannot make the required showing that the

language of the April letter “unacceptably increases the level

of confusion.” Johnson

, 169 F.3d at 1060. In order to arrive at the

allegedly misleading interpretation Johnson proposes, the

reader must first assume the “remit by” date of May 26 listed

at the beginning of the letter with two other settlement offers

is linked to the statement, appearing much later in the letter,

that the debt “may” be reported to credit bureaus. Next, the

phrase “may be reported” must be defined solely as a state

‐

ment of prospective possibilities as opposed to the equally likely

usage indicating ability or authority to report the debt. These

proposed interpretations must then be combined with the

statement in yet another paragraph informing the debtor that

payment of the settlement offer “will stop collection activity”

(but not restore service with Sprint), to yield the allegedly

misleading interpretation that if the debtor pays the first

offered settlement by May 26, then ERC will not report the

delinquent debt to the national credit bureaus. Because the

language in the April letter, standing alone, makes no such

promise, Johnson bore the burden of producing evidence

beyond her own say so demonstrating the likelihood that an

unsophisticated debtor would conclude as much. It is not

enough that Johnson reached such a conclusion; “under the

FDCPA, confusion is not in the eyes of the beholder.” Pettit

,

211 F.3d at 1062. Her belief that the letter offered to forgo

reporting her debt if she paid by May 26th (or, inversely

threatened to report the debt unless she paid by May 26th) fails

to create a genuine issue as to whether a significant fraction of

the population would reach such a conclusion after reading the

April letter. See id. at 1061. The FDCPA is “not violated by aNos. 19

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dunning letter that is susceptible [to] an ingenious misreading,

for then every dunning letter would violate it. [It] protects the

unsophisticated debtor, but not the irrational one.” White v.

Goodman

, 200 F.3d 1016, 1020 (7th Cir. 2000). Here Johnson

presented one such “ingenious” reading of ERC’s letter and

then failed to prove by any objective measure that a significant

fraction of its recipients were misled. See Sims

, 445 F.3d at 963.

Our case law makes clear that “mere speculation” by the

plaintiff that a collection letter is misleading is insufficient to

survive a debt collector’s motion for summary judgment. See

Durkin

, 406 F.3d at 419. In denying ERC’s motion to dismiss

Johnson’s complaint, the district court observed that “as the

case proceeds, the parties may (both might, and are permitted

to) present evidence about how unsophisticated consumers

would interpret” the allegedly misleading statements in ERC’s

April letter. Because Johnson chose instead to rely solely on her

“speculation” to support her claim, summary judgment for

ERC was appropriate.

III.

For the foregoing reasons, we AFFIRM the district court’s

judgment in all respects.