PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JASON E. TAVERNARO, Plaintiff - Appellant,

v. PIONEER CREDIT RE COVERY, INC., Defendant - Appellee. No. 20-3219

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 2:20-CV-02141-KHV-ADM)

________________ _________________ Christopher E. Roberts, Butsch Roberts & Associates, LLC, Clayton, Missouri (Mark D. Molner, Molner Law Group, LL C, Kansas City, Missouri, w ith him on the briefs), for Plaintiff-Appellant. Lisa M. Simonetti, Greenberg Traurig, LL P, Los Angeles, California (Lindsay N. Aherne, Greenberg Traurig, LLP, Denver, Colorado, wi th her on the brief), for Defendant-Appellee.

________________ _________________ Before TYMKOVICH , Chief Judge, HARTZand McHUGH , Circuit Judges.

________________ _________________ TYMKOVICH , Chief Judge.

________________ _________________ This case requires us to consider whether Pioneer Credit Recovery, Inc., violated the Fair Debt Collection Prac tices Act (FDCPA) when it sent Jason Tavernaro a letter attempting to collect a student loan debt. The district court FILED United States Court of Appeals Tenth Circuit 

### August 8, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 12 dismissed Mr. Tavernaro’s complaint for failure to state a claim because the alleged facts were insufficient to establish that Pioneer used materially misleading, unfair, or unc onscionable means to collect the debt, as required by the FDCPA. We affirm. We conclude that violations of 15 U. S.C. § 1692e for false or misleading communicati ons must be material, and materiality is determined through the perspective of th e reasonable consumer. Appl ying that standard, we find Pioneer’s letter wa s not materially mislea ding. And because Mr. Tavernaro’s other claim under § 1692f for unfair comm unications was similarly based on the § 1692e claim, we conclude his § 1692f claim also fails. 

### I. Background
A. Factual Background Jason Tavernaro borrowed money thr ough the Family Federal Education Loan program to pay for sc hooling, and then he defa ulted on that debt. The defaulted debt was sold to Educati onal Credit Manage ment Corporation (ECMC)—a federal student loan guaranty agency—which then contracted with Pioneer Credit Recovery, Inc. , to help collect the debt. 1 In February 2020, in an attempt to co llect the outstanding balance, Pioneer sent Mr. Tavernaro’s employer a packet containing an Order of Withholding from

1 Mr. Tavernaro denies that he owes the debt. Some of the information in this paragraph was derived fr om Pioneer’s brief, and we do not consider it in our analysis. We recount it merely for context. Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 23 Earnings. The Order requi red Mr. Tavernaro’s employe r to withhold a portion of his earnings and then remit th e withheld wages to Pioneer. The entire packet containe d seven pages. The firs t two pages are a letter addressed to Mr. Tavernar o’s employer that provide d information about Mr. Tavernaro’s alleged debt and ordered hi s employer to garnis h his wages and send them to Pioneer. 2 The third page is an “Employer Acknow ledgement of Wage Withholding,” which—like its title sugge sts—was to be filled out by Mr. Tavernaro’s employer and retu rned to Pioneer. Aplt. A pp. at 17. Pages four through six are the “Handbook for Employe rs,” which provides some additional information to Mr. Tavernaro’s employer. Id. at 18–20. And the last page is a worksheet to calculate the amount to be withheld per pay period. Id. at 21. For clarity, we will desc ribe the letter’s key c ontents, beginning with the first page. At the top-right corner of the fi rst page, ECMC’s logo is prominently displayed. Centered near the middle of the same page is the letter’s title, making clear the letter is an “Order of Withholding from Earnings.” Id. at 15. The text clarifies ECMC “is th e holder of a defaulte d federally insured student loan debt” and that the letter “is an attempt, by a debt collecto r, to collec t a debt.” Id. Near the bottom of the first pa ge, the reader is prompt ed to “PLEASE SEE [THE] NEXT PAGE FOR IMPORTANT INFORMATION.” Id.

2 The only portion of the p acket truly at issue here is the first two pages, and we will refer to thes e two pages as “the letter ” or “the order.” Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 34 On the next page, the letter provides details a bout Mr. Tavernar o, his debt, and the withholding payments. Near the middle of this second page, Pioneer is named for the first time in the letter. Specifically, it states, “P ioneer Credit Recovery, Inc. is assisting ECMC with administrative activities associated with this administrative wage garnishment.” Id. at 16. It then instructs the employer to remit payments to Pioneer and provi des Pioneer’s maili ng address. And finally, the letter admoni shes the reader to “ple ase call . . . or send correspondence to” Pioneer “[ i]f [it has] questions re garding this matter” and again provides Pioneer’s maili ng address and phone number. Id. After Mr. Tavernaro’s empl oyer received the lette r, it withheld $652.97 of his wages and tendered the ga rnished funds to Pioneer. Mr. Tavernaro then filed suit against Pioneer on beha lf of himself and a putativ e class, alleging Pioneer violated the Fair Debt Co llection Practices Act, 15 U. S.C. §§ 1692 et seq. He specifically alleged Pioneer violated the portions of the FDCPA that prohibit the use of “false, deceptive, or misleading representation[s],” id. § 1692e, or “unfair or unconscionable means,” id. § 1692f, in attempting to collect a debt. B. Procedural Background In his complaint, Mr. Tavernaro ac cused Pioneer of employing deceptive and unfair practices in at tempting to collect the de bt he allegedly owed. Specifically, Mr. Tavernaro took issue with the contents of th e letter. According to him, Pioneer deceptively sent the le tter “to appear as though it were sent by ECMC.” Aplt. App. at 9, ¶ 17. To achieve that deception, “Pioneer used Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 45 ECMC’s name and logo on the[] letter.” Id. at 10, ¶ 30. And the allegedly deceptive use of ECMC’s “name and logo on the first page of the[] letter” was also “an unfair or unconsciona ble means [used] to collect a debt.” Aplt. App. at 10–11, ¶ 33. Mr. Tavernaro alleged four violations of the FDCPA: (1) violation of the catch-all provision for § 1692f; (2) viol ation of the catch-all provision for § 1692e; (3) violation of § 1692e(10), which prohibits th e use of false representations or decepti ve means to collect a de bt or obtain information concerning a consumer, a nd; (4) violation of § 1692e (14), which requires debt collectors to use their “t rue name.” Aplt. App. at 9–11, ¶¶ 29, 31, 32, 33. In response, Pioneer filed a motion to dismis s for failure to state a claim, which the district court granted. See Fed. R. Civ. P. 12(b)(6 ). The district court granted Pioneer’s motion be cause Mr. Tavernaro failed to plausibly allege Pioneer violated th e FDCPA. For a violation of 15 U.S.C. § 1692e, the court required Mr. Tavernaro to pl ead facts sufficient to show “(1) [Pioneer] engaged in a practice that was false, deceptive, or misleading and (2) the false, deceptive, or misleading statement was material, in th at it had the potenti al to frustrate the least sophisticated co nsumer’s ability to choose his or her response.” Aplt. App. at 26 (citation omitted). Applying the “l east sophisticated consumer” test for materiality, the court conc luded Mr. Tavernaro’ s “assertions [did] not even raise the possibility that the OWE was materia lly misleading” beca use he failed to Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 56 “allege[] how knowledge of who mailed the OWE was material to his, his employer’s[,] or the least sophisticated co nsumer’s response.” Id. at 29. Because the court concluded the letter was not misleading, it necessarily concluded the letter was not unfair or unconscionable. See 15 U.S.C. § 1692f. Although whether a letter is misleading is a different que stion from whet her it is unfair or unconsciona ble, the court resolved the issues jointly because Mr. Tavernaro’s theory that th e letter was unfair or unc onscionable was premised on the idea that it was mislea ding. As all parties agr eed, Mr. Tavernaro’s claims “turn[ed] on the same issue: whether the OWE was materially misleading.” Aplt. App. at 31. Consequently, the court granted Pioneer’s motion to dismiss. 

### II. Discussion
We find the district cour t properly concluded Mr. Ta vernaro failed to state a claim under the FDCPA. We first re view and consider the FDCPA’s text, structure, and purpose, as well as precedent from ot her circuits. Then, we conclude that statements violate § 1692e only if they are material, meaning that they frustrate the reasona ble consumer’s ability to intelligently respond. Applying this standard, we conclude Mr. Tavern aro’s alleged facts are insufficient to find that the reasonable consumer would be ma terially misled by the letter. We review dismissal under Rule 12(b)(6) for failure to state a claim de

novo. Kansas Penn Gaming, LLC v. Collins , 656 F.3d 1210, 1214 (10th Cir. 2011). In doing so, we accept “all the well-pleaded al legations of the complaint Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 67 as true and must constr ue them in the light most favorable to the plaintiff.” Albers v. Bd. of Cty. Comm’rs, 771 F.3d 697, 700 (10th Cir. 2014) (internal quotation marks om itted). To survive a moti on to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). We “disre gard conclusory statements and look only to whether the remaining[] fact ual allegations plau sibly suggest the defendant is liable.” Khalik v. United Air Lines , 671 F.3d 1188, 1191 (10th Cir. 2012). A. FDCPA Congress enacted the FDCPA “to el iminate abusive debt collection practices by debt collec tors, to insure that those debt collectors who refrain from using abusive debt collecti on practices are not compet itively disadvantaged, and to promote consistent Stat e action to protect consumer s against debt collection abuses.” 15 U.S.C. § 1692(e). To achieve those purposes, the FDCPA places limits on debt collection prac tices, and it provi des a private right of action that allows successful plaint iffs to recover damages for certain violations. Id. § 1692k. Under the FDCPA, debt collectors cannot use false, deceptive, or misleading representations, or unfair or unc onscionable means in attempting to collect a debt. See id. §§ 1692e, 1692f. The statutor y text for both § 1692e and § 1692f provides examples of practices th at violate these prohibitions, but the text makes clear the exam ples are non-ex haustive. Id. § 1692e (“Without limiting Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 78 the general application of the foregoing, the following c onduct is a violation of this section.”); id. § 1692f (same). Among the exam ple violations of § 1692e are the failure to use the de bt collector’s “true nam e” and the use of false representations to attempt to collect any debt or obt ain information concerning a

consumer. Id. § 1692e(14), (10). To prevail on a FDCPA claim, a plaintif f must prove four elements: (1) the plaintiff is a “consumer” under id. § 1692a(3); (2) the debt at issue arose out of a transaction entered in to primarily for personal, fa mily, or household purposes; (3) the defendant is a debt collector under id. § 1692a(6); and (4) through its acts or omissions, the defendant violated the FDCPA. Douglass v. Convergent Outsourcing , 765 F.3d 299, 303 (3d Cir. 2014); see also Maynard v. Cannon , 401 F. App’x 389, 393 (10th Ci r. 2010). The district court concluded—and we agree—that the only element at issue is whether Pioneer violated the FDCPA. And for purposes of 15 U.S.C. § 1692e, (1) a consumer mu st demonstrate materiality, and (2) mate riality means that a reas onable consumer would be frustrated in his ability to intelligently respond to th e debt collection effort. 1. Materiality Although § 1692e does not contain the wo rd “material” in its text, we construe it to require ma teriality based on the langua ge and obvious function of the statute. The FDCPA “does not make actionable every fa lse representation;” instead, to be actionable, “s tatement[s] must be material , which is to say capable Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 89 of influencing the consumer’s decision- making process.” Van Hoven v. Buckles & Buckles, P.L.C. , 947 F.3d 889, 894 (6 th Cir. 2020). The circuits agree. 3 For example, the Seventh Circuit in Hahn v. Triumph P’ships LLC , 557 F.3d 755, 757 (7th Cir. 2009), concluded only materially false, deceptive, or misleading statements ar e actionable under § 1692e. The court noted—and we find persua sive—that “[m]ateriality is an ordinary element of any federal claim based on a fals e or misleading statement.” Id. (citing Carter v. United States , 530 U.S. 255 (2000); Neder v. United States , 527 U.S. 1 (1999)). A statement directed to consumers is de signed to provide info rmation that helps them choose intelligently, “and by defi nition immaterial in formation neither contributes to that objective (if the statement is correct) nor underm ines it (if the statement is incorrect).” Id. at 757–58. We agree th at § 1692e requires any misstatements satisfy a materiality standard. 4

3 “Every circuit to cons ider the question . . . has construed the statute to contain a materialit y requirement.” Van Hoven v. Buckles & Buckles, P.L.C. , 947 F.3d 889, 894 (6th Cir. 2020) (citing Hill v. Accts. R eceivable Servs., LLC , 888 F.3d 343, 346 (8th Cir. 2018) (collecting cases)).

4 We need not answer whether § 1692f also contains a materiality requirement. It is unnecessary because Mr. Tavernaro alleged that Pioneer, “by misrepresenting that the OWE letter was sent by EC MC,” “used an unfair or unconscionable means to collec t [the] debt.” Aplt. App. at 10–11, ¶ 33. In other words, his § 1692f claim was grounded solely on a theory of misrepresentation. Because his § 1692f claim is so intertwined with the § 1692e claim, we will only find the letter to be unfair or unconscionable if it is materially misleading. Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 910 2. Reasonable Consumer Having concluded that only materially misleading, decep tive, or false statements violate § 1692e, we are left with an open question: How is materiality measured? Is it from the perspective of a hypot hetical “unsophisticated consumer” or from that of a “reasonable c onsumer?” As the Supreme Court noted in its most recent FDCPA case, Sheriff v. Gillie , 578 U.S. 317 (2016), it has yet to decide “whether a potentially false or misl eading statement should be viewed from the perspective of the least sophisticated consumer . . . or the average consumer who has defaulted on a debt.” Id. at 327 n.6 (cleaned up). The lower court cases sugge st the standards differ, but as we explain, in reality the standards are co mparable in practice. Th e courts applying the least sophisticated consumer standard tend to “agree that although the least sophisticated debtor may be uninformed, naïve, an d gullible, nonetheless her interpretation of a collection notice ca nnot be bizarre or unreasonable.” Tourgeman v. Collins Fin. Servs., Inc. , 755 F.3d 1109, 1119 (9th Cir. 2014) (internal quotati on marks omitted); see also Ellis v. Solomon & Solomon, P.C. , 591 F.3d 130, 135 (2d Cir. 2010) (“[T]his Court has been careful not to conflate lack of sophistication w ith unreasonableness.”); cf. Turner v. J.V.D.B. & Assocs., Inc. , 330 F.3d 991, 995 (7th Cir. 2003) (appl ying a similar standard to the unsophisticated consumer test) (“[T he unsophisticated consumer test] is objective, turning . . . on whether the debt coll ector’s communication would deceive or mislead an unsophisticated, but reasonable, consumer.”); but see Brown v. Card Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 1011 Serv. Center , 464 F.3d 450, 454 (3d Cir. 2006) (“ The least sophisticated debtor standard requires more than simply examining whether particular la nguage would deceive or mislead a reas onable debtor because a communication that would not deceive or mislead a reasona ble debtor might still dece ive or mislead the least sophisticated debtor.”) (interna l quotation marks omitted). “[T]he reasonable pe rson standard is well ensconc ed in the law in a variety of legal contexts in which a claim of d eception is brought.” Haskell v. Time, Inc. , 857 F. Supp. 1392, 1398 (E.D. Cal. 1994) (colle cting cases). Some of the sources illustrate the concept. For example, the Federal Trade Commission uses a “reasonable consumer” standa rd to protect consumers from false a dvertising, deploying well-settled standa rds to determine whether st atements are deceptive or misleading and decide whether the statements are material. 5 To start, the FTC “examines the overall net impression of [a representation to consumers].” ECM BioFilms, Inc. v. FTC , 851 F.3d 599, 610 (6th Cir. 2017) (internal quotation marks om itted). In examining th e representation, the FTC does not look to “an isolat ed word or phrase.” FTC v. NPB Advert., Inc. , 218 F.

5 The Federal Trade Co mmission Act makes it “ unlawful for any person, partnership, or corporation to disseminate, or cause to be disseminated, any false advertisement” through certain means or af fecting certain indus tries. 15 U.S.C. § 52. In 1983, the FTC issued a policy statement adopting the now well-settled “reasonable consumer” standard. FTC, Deceptive Acts and Practices , Trade Reg. Rep., ¶ 13,205; 2016 WL 6107331, at *2–4. Although the policy statement is not binding on the FTC or the courts, the Commission bega n to use the “reasonable consumer” standard, Cliffdale Associates, Inc. , 103 F.T.C. 110 (1984), and it continues to apply the same standard today. Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 1112 Supp. 3d 1352, 1358 (M.D. Fla. 2016). Ra ther, the FTC considers whether at least a significant minority of reasona ble consumers would likely interpret a representation to have the purpo rtedly misleading meaning. ECM BioFilms, Inc. , 851 F.3d at 610. That is to say, a representation is c onsidered misl eading “if at least a significant minority of reasonable consumers would be likely to take away the misleading claim.” See id. at 610–11 (cleaned up). After determining an ad is misleading, the FTC reviews whether re presentation at issue is material. “A representation is material if a reasonable pr ospective buyer is likely to rely upon it.” FTC v. Roca Labs, Inc. , 345 F. Supp. 3d 1375, 1386 (M.D. Fla. 2018). Another helpful illustration of the reasonable consumer standard comes from application of the Truth-in-Lending Act. 15 U.S.C. §§ 1601 et seq. In Bustamante v. First Fe d. Sav. and Loan Ass’n , 619 F.2d 360, 362 (5th Cir. 1980), the Fifth Circuit held that a borrower was en titled to recission of a loan contract under the TILA because he sought reciss ion before the lende r made necessary material disclosures. Bustamante , 619 F.2d at 362. The c ourt explained that in determining whether an om ission was material for purposes of the 15 U.S.C. § 1635, it applies “an objectiv e standard to de termine the materi ality question, based on what a reasonable consumer would find significant in deciding whether to use credit.” Id. at 364 (emphasis added ). Because the aim of the TILA is to protect consumers, the Fift h Circuit refused a subjectiv e standard that would (1) “protect only the sophistic ated credit shoppe r” and (2) “fail to protect the Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 1213 unsophisticated or uneducated consumer, or redr ess violations of the [TILA], and would not promote the info rmed use of credit.” Id. (cleaned up). To be sure, some courts that have considered the question in the context of debt collection have concluded that ma teriality is measur ed by the so-called imaginary “least soph isticated consumer.” 6 For example, in the Eleventh Circuit’s Jeter v. Credit Bureau, Inc. , 760 F.2d 1168 (11th Cir. 1985), the court asked “whether the ‘least s ophisticated consumer’ would be deceived by [the debt collector’s] letters.” Id. at 1177. In its view, the le ast sophisticated consumer standard requires cour ts to “gauge the tendency of a debt collector’ s language to deceive” by viewing communi cations from the perspectiv e of “debtors on the low side of reasonable capacity .” See id. at 1174 n.6 (interna l quotation marks omitted) (emphasis added). The Jeter court first consider ed the FTCA because the FTC enforced consumer protection laws against debt collectors before

6 A number of circuits have applied th e least sophisticated or unsophisticated consumer tests. See Pollard v. Law Office of Mandy L. Spaulding , 766 F.3d 98, 103 n.4 (1st Cir. 2014) (unsop histicated consumer); Jacobson v. Healthcare Fin. Servs., Inc. , 516 F.3d 85, 90 (2d Cir. 2008) (l east sophisticated consumer); Tatis v. Allied Interstate, LLC , 882 F.3d 422, 42 7 (3d Cir. 2018) (least s ophisticated consumer); Russell v. Absolute Co llection Servs., Inc. , 763 F.3d 385, 394 (4th Cir. 2014) (least sophisticated consumer); Gonzalez v. Kay , 577 F.3d 600, 607–08 (5th Cir. 2009) (least sophisticated consumer); Hartman v. Great Seneca Fin. Corp. , 569 F.3d 606, 611–12 (6th Cir. 2009) (least sophisticated consumer); Walker v. Nat’l Recovery, Inc. , 200 F.3d 500, 501 (7th Cir. 1999) (unsophi sticated consumer); Peters v. General Serv. Bureau, Inc. , 277 F.3d 1051, 1055 (8th Ci r. 2002) (unsophisticated consumer); Swanson v. Southern Oregon Credit Serv., Inc. , 869 F.2d 1222, 1225 (9th Cir. 1988) (least soph isticated consumer); LeBlanc v. Unifund CCR Partners , 601 F.3d 1185, 1193–94 (11th Cir. 2010) (least sophisticated consumer); Frank v. Autovest, LLC , 961 F.3d 1185, 1189 (D.C. Cir. 2020) (unsophisticat ed consumer). Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 1314 enactment of the FDCPA. Id. at 1172. In short, it re asoned that be cause (1) the FTCA “was enacted to protect unsophist icated consumers, not only ‘reasonable consumers,’” and (2) the FTC looked to a “less sophisticate d consumer,” it follows “Congress intended the [same] standard unde r the FDCPA.” Id. at 1172, 1173, 1175. But Jeter leaves us with a vague and nebulous standard that gives little guidance to courts or creditors trying to comply with the law. These cases fail to persuade us that Congress intended for the application of the least sophisticated consumer standard. Rath er than presume Congress intended for the application of a specific standard that is not mentioned in the statute’s text, we infer C ongress operationalized its inte nt to protect debtors in other ways and under tr aditional standards. For example, the FDCPA and its ame ndments created a private right of action, § 1692k—which did not exist under the FTC Act, see Holloway v. BristolMyers Corp. , 485 F.2d 986, 989 (D.C. Cir. 1973) —and placed more expansive limits on debt collectors’ practices. See, e.g. , § 1692b (placing limits on debt collectors’ actions taken for the purpose of acquiring location information of a debtor when communicating with a person other th an the debtor); § 1692c (limiting debt collectors’ communications with debtors and third parties for the purpose of collecting debt); § 1692d (pro hibiting debt collectors from taking actions that have the natural conseque nce of harassing, oppr essing, or abusing any person in connection with the collec tion of a debt); § 1692e (providing a nonexhaustive list of conduc t that is false, deceptive, or misleading); § 1692f Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 1415 (providing a non-exhaustive list of conduct that is unfair or unconscionable); § 1692g (requiring debt collec tors to validate debts); § 1692h (requiring creditors to apply payments to non-disputed de bts when the consum er owes multiple debts); § 1692i (limiting the venues wher e a debt collector may file suit to enforce collection of certain debts); § 1692j (prohibi ting the use of any form that creates the false impression that someone other than th e creditor is participating in the collection of a debt). Thus, even if we apply a ma teriality standard that is framed differently than the FTC’s standard, the FDCPA— viewed in it s entirety— results in more pr otection for debtors. 7 Nor are we convinced that the least sophisticated consumer standard is correct as a theoretical matt er; in practice most courts implementing th at standard have incorporated aspects of the reasonable c onsumer standard. In applying the least sophisticated co nsumer standard, courts typi cally begin by noting the least sophisticated consumer is not an expert but then qui ckly explain he is not actually the least sophisticated consumer. See, e.g. , Denciger v. Network Recovery Servs., Inc. , 493 F. Supp. 3d 138, 141 (E.D.N.Y. 2020) (“This hypothetical consumer

7 Although we have previously said th at the FDCPA “is a remedial statute, [so] it should be construed liberally in fa vor of the consumer,” Johnson v. Riddle , 305 F.3d 1107, 1117 (10th Cir. 2002), we find that cannon of construction unhelpful here. “This maxim is usel ess in deciding c oncrete cases. Every statute is remedial in the sense that it alters the law or favo rs one group over another.” Stomper v. Amalgamated Transit Union, Local 241 , 27 F.3d 316, 320 (7th Cir. 1994). It is clear Congress enacted the FDCPA to protec t consumers, 15 U.S.C. §1692(a), but this maxi m does not tell us “how far to go” in one direction or the other. See id. Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 1516 ‘does not have the astuteness of a Philadelphia lawyer or even the sophistication of the average, everyday, common consum er.’ But the cons umer ‘is neither irrational nor a dolt,’ and a court must be ‘c areful not to c onflate lack of sophistication with unreasonabl eness.’” (citations omitted )). They also remind us that the least sophist icated consumer “can be pres umed to possess a rudimentary amount of information about the world and a willingne ss to read a collection notice with some care.” Id. (internal quotation ma rks omitted). Taking the standard litera lly, we would review co llection notices from the perspective of a consumer less s ophisticated than anyone else. See Least , Oxford English Dictionary (3d ed. 2018) (“Less than any other in size, extent, or degree.”). But no court appl ies the standard to mean wh at it says. Otherwise, could we really expect th e consumer with less sophi stication than all other consumers to be literate, re ad the entirety of collecti on notices with some care, and be rational? Instead, in varying de grees, courts constr ue this hypothetical consumer to be more sophist icated than the actual least sophisticated consumer. In reality, the nebulous le ast sophisticated consumer standard is simply a misnomer. A few ci rcuits, recognizing problems wi th the least sophisticated consumer standard, inst ead look to the “unsophist icated consumer.” See Walker v. Nat’l Recovery, Inc. , 200 F.3d 500, 501 (7th Cir. 1999); Peters v. Gen. Serv. Bureau, Inc. , 277 F.3d 1051, 1055 (8th Cir. 2002); Frank v. Autovest LLC , 961 F.3d 1185, 1189 (D.C. Cir. 2020). Th e Seventh Circui t frames the unsophisticated consumer st andard’s inquiry as “whe ther a person of modest Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 1617 education and limited comme rcial savvy would be likely to be deceived.” Evory v. RJM Acquisitions Funding LLC , 505 F.3d 769, 774 (7th Cir. 2007). Rather than view representations from the standpoint “of the least intelligent consumer in this nation of 300 million people,” the Seventh Circuit looks to “the average consumer in the lowest qua rtile (or some other substa ntial bottom fraction) of consumer competence.” 8 Id. The standard is variable , such as when a “debt collector has targeted a particularly vulnerable group—say, consumers who he knows have a poor command of English.” Id. The D.C. Circuit observe d that although the least sophisticated consumer and unsophisticated consum er standards use differ ent names, they are functionally identical. Jones v. Dufek , 830 F.3d 523, 525 n.2 (D.C. Cir. 2016) (“The term ‘unsophisticated’ is probably more accurate,” but “[ i]n practice, the ‘least sophisticated’ and ‘ unsophisticated’ appear to be the same”). We agree the unsophisticated consumer test is functionally th e same as the le ast sophisticated consumer standard, and th e unsophisticated consumer is descriptively more accurate to the tests’ func tion. Even so, neither st andard is correct because

8 Not all courts that us e the unsophisticat ed consumer sta ndard have been as specific as the Seventh Circuit. But they generally view representations from the perspective of “consumer s of below average sophis tication or intelligence” while still maintaining “an objecti ve element of re asonableness.” See Peters v. Gen. Serv. Bureau, Inc. , 277 F.3d 1051, 1055 (8th Cir. 2002) (internal quotation marks omitted). Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 1718 neither is statutoril y required, and both suffer from vagueness and di fficulty to apply. We thus apply the “rea sonable consumer ” standard—as a pplied in the FTCA’s false advertising cases and the TILA’s nondisc losure jurisp rudence. Using the reasonable c onsumer to assess materialit y is consistent with other consumer protection la ws and provides courts and litigants with a comparable and familiar standard. 9 And it is sufficiently protec tive of consum ers, whether sophisticated or not. In summary, a representation violates § 1 692e only if it is materially false, deceptive, or misleading to the reasonable consumer. Applying this standard, the first question is whether the representation is mi sleading. In viewing representations from the perspective of the reasonable consum er, we assume the

9 The reasonable consumer standard we apply is also c onsonant with how materiality is defined in the Restatement (Third) of Torts. The restatement notes that reliance on a fr audulent misrepresentation is only justifia ble if the misrepresentation is material. Restatement (Third) of Torts § 9 (2020). And “[a] misrepresentation is material if a reasonable person would give significant weight to it in deciding whet her to enter into the releva nt transaction, or if the defendant knew that the plai ntiff would give it such weight (whether reasonably or not).” Id. § 9 cmt. d (emphasis added). Al though a misrepresentation is not identical to a “fal se, deceptive, or misleading representation,” 15 U.S.C. 1692e, we find the restatement persuasive as it similarly deal s with deceptive representations that can harm consumers. What is more, the proposed Restatem ent of Consumer Contracts also understands deception to be viewed fr om the perspective of the reasonable consumer. Restatement of Consumer Contracts § 7 reporters’ notes (Am. L. Inst., Revised Tentative Draft 2, June 2022) (“Deception should be understood broadly to encompass not only out right fraud, but any act or practice that is likely to mislead the reasonable consumer .” (emphasis added)). Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 1819 reasonable consumer would r ead a communication in its entirety and make sense of a communication by assessing it as a whole and in its context. 10 The inquiry is whether the reasonabl e consumer could re asonably interpret th e representation to have multiple meanings, one of which is untrue. If a reasonable c onsumer would come to only one interpretati on, which is accurate, then the represen tation is not misleading. On the othe r hand, if a reasonable c onsumer could understand a representation as misleading, materiality is then as sessed by asking whether the reasonable consumer would ha ve his ability to intelligently respond frustrated. B. Application Examining Pioneer’s letter, we ask wh ether the reasonabl e consumer would have been materially misled by the letter at hand. We conclude no reasonable consumer would have been materially misled. Mr. Ta vernaro contends Pioneer violated §§ 1692e and 1692f because the letter gave the a ppearance of having been sent by ECMC, not Pioneer . Although he claims the letter violates different portions of § 1692e a nd § 1692f generally, the crux of each claim tu rns on the same point: whether the lett er is materially mislea ding because it makes the reader believe it wa s sent by the creditor rather th an the debt co llector. As

10 The proposed Restatement of Consum er Contracts defines “reasonable” as “[a] conclusion, as determined based on th e totality of the circumstances, including the ordinary behavior and perspective of consumers engage d in the type of transaction at issue and their in teraction with the business.” Restatement of Consumer Contracts § 1(a)(8) (Am. L. Inst., Revised Tentative Draft 2, June 2022). As we are similarly determ ining consumer understanding, we find that definition helpful here. Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 1920 evidence for his view, Mr. Tavernaro points to (1) th e letterhead, which includes ECMC’s logo but excludes Pioneer’s; (2) th e absence of an af firmative statement in the letter that it was sent by Pioneer rath er than ECMC; and (3) the signature line, which identifies EC MC but not Pioneer. Reviewing the letter, a r easonable consumer would not be misled. First, from the beginning of the body of the letter, it forthri ghtly identifie s ECMC as the creditor. Aplt. App at 15 (“[ECMC] is the holder of a defaulte d federally insured student loan debt owed to ECMC by the employee refe renced below.”). Second, the letter stat es it “is an attempt, by a debt collector, to collect a debt.” Id. Third, on the next page, th e letter clarifies that “P ioneer Credit Recovery, Inc. is assisting ECMC with administ rative activities associated with this administrative wage garnishment.” Id. at 16. In other word s, the letter makes clear that ECMC owns the debt, Pioneer is a debt collector helping ECMC with the collection of the debt, and the letter is an atte mpt to collect the debt. Even assuming a reasonable consum er would believe ECMC and not Pioneer sent the letter, Mr. Tavernaro fails to demonstrat e how that would frustrate the reasonable cons umer’s ability to respond in telligently. In essence, he argues that “the first page of the co llection communication leaves a consumer with the indelible impression that the ‘debt collector’ is ECMC, rather than Pioneer,” Aplt Br. at 36 (citation omitted), and the least sophisticated consumer would “not even know to w hom [he] should respond.” Id. at 35. Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 2021 But no reasonable consumer would be co nfused about whom to contact if he had any questions about this letter. The second page of the letter clearly states, “[i]f you have any questions rega rding this matter, please call [phone number] or send correspondence to: Pion eer Credit Recovery, Inc. [mailing address].” Aplt. App. at 16. And it also dire cts the reader to remit the withheld wages to Pioneer and lists the relevant address. How one could read these instructions and still not know whom to contact is a mystery. We also find Mr. Tavern aro’s remaining argument similarly unpersuasive. He contends Pioneer viol ated the “true name” requi rement by placing ECMC’s logo in the letterhead and omitting it s own logo because th e “Supreme Court[] held that it is critical for a debt collector to disc lose its ‘true name’ in the letterhead of a written attempt to coll ect a debt.” Aplt. Br. at 26 (citing Sheriff v. Gillie , 578 U.S. 317 (2016)). Ba sed on his reading of Sheriff , Mr. Tavernaro faults the distri ct court for concludi ng the purported letterh ead logos discrepancy was immaterial be cause it understood Sheriff to stand for the proposition that “debt collector[s] may not lie about their institutio nal affiliation.” Aplt. App. at 29 (cleaned up). In our view, Mr. Tavernaro misreads Sheriff . In Sheriff , a debtor sued debt collectors (special counsel) who were contracted by the Ohio Attorney General to collect debts owed to the state, alleging the special counsel violated § 1692e by sending debt collection notices that used the Attorney General’ s letterhead. 578 U.S. at 320–23. The Court concluded the co llection notice was not misleading Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 2122 because “[s]pecial counsel create[d] no false impression” in using the Attorney General’s letterhead, in part because they were required by Ohio law to use that letterhead. Id. at 326. Read as a whole, the co mmunication “alert[ed] the debtor to both the basis for the payment obligation and the official responsible for enforcement of debts owed to the State, [and] the si gnature block convey[ed] who the Attorney General ha[d] enga ged to collect the debt.” Id. at 326–27. Similarly, here the letter as a whole alerts Mr. Tave rnaro to the basis for his payment obligation and who the creditor and debt collector are. Although the letter here did not include Pioneer’s name in the signa ture line, and there are no allegations in the complaint that ECMC require d its logo be used in the letterhead, we find that no reasonable consumer—after reading the letter as a whole—would misunderstand th e basis for the debt or the identities of the creditor and debt collector. 11 The Sheriff Court also specifically addres sed the “true name” requirement and concluded the special co unsel did not violate it. The Court concluded the special counsel did “not em ploy a false name when usi ng the Attorney General’s letterhead” at his instruction while ac ting as agents for debt collection. Id. at

11 Pioneer asserts the le tter was authored by EC MC and that, in fact, ECMC was required by regulati on to issue the le tter in its own name. Aple. Br. at 20–21. That may be the ca se, but at this st age in litigation (m otion to dismiss) we are only permitted to consider facts alleged in the complaint, Waller v. City & Cty. of Denver , 932 F.3d 1277, 1286 n.1 (10th Cir. 2019), and the complaint is silent as to authorship of the letter. We therefore cannot assume ECMC authored the letter. Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 2223 327. The special co unsel did not “misrepresent [t heir] identity” because the letters they sent “accurat ely identif[ied] the office primarily responsible for collection of the debt (the Attorney Gene ral), special counsel’s affiliation with that office, and the addres s (special counsel’s law firm) to wh ich payment should be sent.” Id. Once again, Pioneer’s letter di d just that. Al though we presume ECMC’s logo was not placed on the letterhead on its ow n behest, Pioneer did not misrepresent its own identity . The reasonable consumer reading the letter in this case would still know who owns the debt (ECMC), who was c ontracted to help collect the debt (Pio neer), and where to remit debt payments (Pioneer’s mailing address). For thos e reasons, we hold there are in sufficient fact s alleged to conclude Pioneer violated § 1692e by sending the letter. As discussed above, Mr. Tavernaro’s § 1692f clai m—that the letter was an unfair or unconscionable me ans used in attempting to collect a debt—was premised entirely on the le tter’s purported deception. Because we hold the letter was not materially misl eading based on the allege d facts before us, we necessarily conclude the use of the letter did not violate § 1692f. 

### III. Conclusion For the aforementioned reasons, we AF FIRM the district court’s dismissal of Mr. Tavernaro’s claims. Appellate Case: 20-3219 Document: 010110721594 Date Filed: 08/08/2022 Page: 23