PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JASON E. TAVERNARO, 

 Plaintiff - Appellant, 

v. 

PIONEER CREDIT RECOVERY, 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, LLC, Kansas City, Missouri, with him on the briefs), for 

Plaintiff-Appellant. 

Lisa M. Simonetti, Greenberg Traurig, LLP, Los Angeles, California (Lindsay N. 

Aherne, Greenberg Traurig, LLP, Denver, Colorado, with her on the brief), for 

Defendant-Appellee. 

_________________________________ 

Before TYMKOVICH, Chief Judge, HARTZ and McHUGH, Circuit Judges. 

_________________________________ 

TYMKOVICH, Chief Judge. 

_________________________________ 

This case requires us to consider whether Pioneer Credit Recovery, Inc., 

violated the Fair Debt Collection Practices 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

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2 

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 unconscionable 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 communications must be material, and materiality is determined 

through the perspective of the reasonable consumer. Applying that standard, we 

find Pioneer’s letter was not materially misleading. And because Mr. 

Tavernaro’s other claim under § 1692f for unfair communications was similarly 

based on the § 1692e claim, we conclude his § 1692f claim also fails. 

I. Background 

A. Factual Background 

Jason Tavernaro borrowed money through the Family Federal Education 

Loan program to pay for schooling, and then he defaulted on that debt. The 

defaulted debt was sold to Educational Credit Management 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 collect 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 from Pioneer’s brief, and we do not consider it in our 

analysis. We recount it merely for context. 

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Earnings. The Order required Mr. Tavernaro’s employer to withhold a portion of 

his earnings and then remit the withheld wages to Pioneer. 

The entire packet contained seven pages. The first two pages are a letter 

addressed to Mr. Tavernaro’s employer that provided information about Mr. 

Tavernaro’s alleged debt and ordered his employer to garnish his wages and send 

them to Pioneer.2

 The third page is an “Employer Acknowledgement of Wage 

Withholding,” which—like its title suggests—was to be filled out by Mr. 

Tavernaro’s employer and returned to Pioneer. Aplt. App. at 17. Pages four 

through six are the “Handbook for Employers,” 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 describe the letter’s key contents, beginning with the 

first page. At the top-right corner of the first 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 the holder of a defaulted federally insured student loan debt” 

and that the letter “is an attempt, by a debt collector, to collect a debt.” Id. Near 

the bottom of the first page, the reader is prompted to “PLEASE SEE [THE] 

NEXT PAGE FOR IMPORTANT INFORMATION.” Id. 

2

 The only portion of the packet truly at issue here is the first two pages, 

and we will refer to these two pages as “the letter” or “the order.” 

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On the next page, the letter provides details about Mr. Tavernaro, 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, “Pioneer 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 provides Pioneer’s mailing address. And 

finally, the letter admonishes the reader to “please call . . . or send 

correspondence to” Pioneer “[i]f [it has] questions regarding this matter” and 

again provides Pioneer’s mailing address and phone number. Id. 

After Mr. Tavernaro’s employer received the letter, it withheld $652.97 of 

his wages and tendered the garnished funds to Pioneer. Mr. Tavernaro then filed 

suit against Pioneer on behalf of himself and a putative class, alleging Pioneer 

violated the Fair Debt Collection 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 accused Pioneer of employing deceptive 

and unfair practices in attempting to collect the debt he allegedly owed. 

Specifically, Mr. Tavernaro took issue with the contents of the letter. According 

to him, Pioneer deceptively sent the letter “to appear as though it were sent by 

ECMC.” Aplt. App. at 9, ¶ 17. To achieve that deception, “Pioneer used 

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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 unconscionable 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) violation of the catch-all provision for 

§ 1692e; (3) violation of § 1692e(10), which prohibits the use of false 

representations or deceptive means to collect a debt or obtain information 

concerning a consumer, and; (4) violation of § 1692e(14), which requires debt 

collectors to use their “true name.” Aplt. App. at 9–11, ¶¶ 29, 31, 32, 33. 

In response, Pioneer filed a motion to dismiss 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 because Mr. Tavernaro failed to plausibly allege 

Pioneer violated the FDCPA. For a violation of 15 U.S.C. § 1692e, the court 

required Mr. Tavernaro to plead 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 that it had the potential to frustrate the 

least sophisticated consumer’s ability to choose his or her response.” Aplt. App. 

at 26 (citation omitted). Applying the “least sophisticated consumer” test for 

materiality, the court concluded Mr. Tavernaro’s “assertions [did] not even raise 

the possibility that the OWE was materially misleading” because he failed to 

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“allege[] how knowledge of who mailed the OWE was material to his, his 

employer’s[,] or the least sophisticated consumer’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 question from whether it is 

unfair or unconscionable, the court resolved the issues jointly because Mr. 

Tavernaro’s theory that the letter was unfair or unconscionable was premised on 

the idea that it was misleading. As all parties agreed, 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 court properly concluded Mr. Tavernaro failed to state 

a claim under the FDCPA. We first review and consider the FDCPA’s text, 

structure, and purpose, as well as precedent from other circuits. Then, we 

conclude that statements violate § 1692e only if they are material, meaning that 

they frustrate the reasonable consumer’s ability to intelligently respond. 

Applying this standard, we conclude Mr. Tavernaro’s alleged facts are 

insufficient to find that the reasonable consumer would be materially 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 allegations of the complaint 

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as true and must construe 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 omitted). To survive a motion 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 “disregard conclusory statements and 

look only to whether the remaining[] factual allegations plausibly 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 eliminate abusive debt collection 

practices by debt collectors, to insure that those debt collectors who refrain from 

using abusive debt collection practices are not competitively disadvantaged, and 

to promote consistent State action to protect consumers against debt collection 

abuses.” 15 U.S.C. § 1692(e). To achieve those purposes, the FDCPA places 

limits on debt collection practices, and it provides a private right of action that 

allows successful plaintiffs to recover damages for certain violations. Id.

§ 1692k. 

Under the FDCPA, debt collectors cannot use false, deceptive, or 

misleading representations, or unfair or unconscionable means in attempting to 

collect a debt. See id. §§ 1692e, 1692f. The statutory text for both § 1692e and 

§ 1692f provides examples of practices that violate these prohibitions, but the 

text makes clear the examples are non-exhaustive. Id. § 1692e (“Without limiting 

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the general application of the foregoing, the following conduct is a violation of 

this section.”); id. § 1692f (same). Among the example violations of § 1692e are 

the failure to use the debt collector’s “true name” and the use of false 

representations to attempt to collect any debt or obtain information concerning a 

consumer. Id. § 1692e(14), (10). 

To prevail on a FDCPA claim, a plaintiff 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 into primarily for personal, family, 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 Cir. 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 must demonstrate 

materiality, and (2) materiality means that a reasonable consumer would be 

frustrated in his ability to intelligently respond to the debt collection effort. 

1. Materiality 

Although § 1692e does not contain the word “material” in its text, we 

construe it to require materiality based on the language and obvious function of 

the statute. The FDCPA “does not make actionable every false representation;” 

instead, to be actionable, “statement[s] must be material, which is to say capable 

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of influencing the consumer’s decision-making process.” Van Hoven v. Buckles 

& Buckles, P.L.C., 947 F.3d 889, 894 (6th 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 are actionable under § 1692e. The court 

noted—and we find persuasive—that “[m]ateriality is an ordinary element of any 

federal claim based on a false 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 designed to provide information that helps 

them choose intelligently, “and by definition immaterial information neither 

contributes to that objective (if the statement is correct) nor undermines it (if the 

statement is incorrect).” Id. at 757–58. We agree that § 1692e requires any 

misstatements satisfy a materiality standard.4

 

3

 “Every circuit to consider the question . . . has construed the statute to 

contain a materiality requirement.” Van Hoven v. Buckles & Buckles, P.L.C., 947 

F.3d 889, 894 (6th Cir. 2020) (citing Hill v. Accts. Receivable 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 ECMC,” “used an unfair or 

unconscionable means to collect [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. 

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2. Reasonable Consumer 

Having concluded that only materially misleading, deceptive, or false 

statements violate § 1692e, we are left with an open question: How is materiality 

measured? Is it from the perspective of a hypothetical “unsophisticated 

consumer” or from that of a “reasonable consumer?” 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 misleading 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 suggest the standards differ, but as we explain, in 

reality the standards are comparable in practice. The courts applying the least 

sophisticated consumer standard tend to “agree that although the least 

sophisticated debtor may be uninformed, naïve, and gullible, nonetheless her 

interpretation of a collection notice cannot be bizarre or unreasonable.” 

Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109, 1119 (9th Cir. 2014) 

(internal quotation 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 with unreasonableness.”); cf. Turner v. J.V.D.B. & Assocs., 

Inc., 330 F.3d 991, 995 (7th Cir. 2003) (applying a similar standard to the 

unsophisticated consumer test) (“[The unsophisticated consumer test] is objective, 

turning . . . on whether the debt collector’s communication would deceive or 

mislead an unsophisticated, but reasonable, consumer.”); but see Brown v. Card 

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Serv. Center, 464 F.3d 450, 454 (3d Cir. 2006) (“The least sophisticated debtor 

standard requires more than simply examining whether particular language would 

deceive or mislead a reasonable debtor because a communication that would not 

deceive or mislead a reasonable debtor might still deceive or mislead the least 

sophisticated debtor.”) (internal quotation marks omitted). 

“[T]he reasonable person standard is well ensconced in the law in a variety 

of legal contexts in which a claim of deception is brought.” Haskell v. Time, Inc., 

857 F. Supp. 1392, 1398 (E.D. Cal. 1994) (collecting cases). Some of the sources 

illustrate the concept. For example, the Federal Trade Commission uses a 

“reasonable consumer” standard to protect consumers from false advertising, 

deploying well-settled standards to determine whether statements 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 omitted). In examining the representation, the FTC 

does not look to “an isolated word or phrase.” FTC v. NPB Advert., Inc., 218 F. 

5

 The Federal Trade Commission Act makes it “unlawful for any person, 

partnership, or corporation to disseminate, or cause to be disseminated, any false 

advertisement” through certain means or affecting certain industries. 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 began to use the “reasonable 

consumer” standard, Cliffdale Associates, Inc., 103 F.T.C. 110 (1984), and it 

continues to apply the same standard today. 

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Supp. 3d 1352, 1358 (M.D. Fla. 2016). Rather, the FTC considers whether at 

least a significant minority of reasonable consumers would likely interpret a 

representation to have the purportedly misleading meaning. ECM BioFilms, Inc., 

851 F.3d at 610. That is to say, a representation is considered misleading “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 representation at issue is material. “A 

representation is material if a reasonable prospective 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 Fed. Sav. and Loan Ass’n, 619 F.2d 360, 362 (5th Cir. 1980), 

the Fifth Circuit held that a borrower was entitled to recission of a loan contract 

under the TILA because he sought recission before the lender made necessary 

material disclosures. Bustamante, 619 F.2d at 362. The court explained that in 

determining whether an omission was material for purposes of the 15 U.S.C. 

§ 1635, it applies “an objective standard to determine the materiality 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 Fifth Circuit refused a subjective standard that would (1) 

“protect only the sophisticated credit shopper” and (2) “fail to protect the 

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unsophisticated or uneducated consumer, or redress violations of the [TILA], and 

would not promote the informed 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 materiality is measured by the so-called 

imaginary “least sophisticated 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 sophisticated consumer’ would be deceived by [the debt 

collector’s] letters.” Id. at 1177. In its view, the least sophisticated consumer 

standard requires courts to “gauge the tendency of a debt collector’s language to 

deceive” by viewing communications from the perspective of “debtors on the low 

side of reasonable capacity.” See id. at 1174 n.6 (internal quotation marks 

omitted) (emphasis added). The Jeter court first considered the FTCA because 

the FTC enforced consumer protection laws against debt collectors before 

6

 A number of circuits have applied the 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) (unsophisticated consumer); Jacobson v. Healthcare Fin. Servs., 

Inc., 516 F.3d 85, 90 (2d Cir. 2008) (least sophisticated consumer); Tatis v. Allied 

Interstate, LLC, 882 F.3d 422, 427 (3d Cir. 2018) (least sophisticated consumer); 

Russell v. Absolute Collection 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) (unsophisticated consumer); Peters v. 

General Serv. Bureau, Inc., 277 F.3d 1051, 1055 (8th Cir. 2002) (unsophisticated 

consumer); Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1225 (9th 

Cir. 1988) (least sophisticated 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) (unsophisticated consumer). 

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enactment of the FDCPA. Id. at 1172. In short, it reasoned that because (1) the 

FTCA “was enacted to protect unsophisticated consumers, not only ‘reasonable 

consumers,’” and (2) the FTC looked to a “less sophisticated consumer,” it 

follows “Congress intended the [same] standard under 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. Rather than presume Congress 

intended for the application of a specific standard that is not mentioned in the 

statute’s text, we infer Congress operationalized its intent to protect debtors in 

other ways and under traditional standards. 

For example, the FDCPA and its amendments 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 than the debtor); § 1692c 

(limiting debt collectors’ communications with debtors and third parties for the 

purpose of collecting debt); § 1692d (prohibiting debt collectors from taking 

actions that have the natural consequence of harassing, oppressing, or abusing 

any person in connection with the collection of a debt); § 1692e (providing a nonexhaustive list of conduct that is false, deceptive, or misleading); § 1692f 

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(providing a non-exhaustive list of conduct that is unfair or unconscionable); 

§ 1692g (requiring debt collectors to validate debts); § 1692h (requiring creditors 

to apply payments to non-disputed debts when the consumer owes multiple 

debts); § 1692i (limiting the venues where a debt collector may file suit to 

enforce collection of certain debts); § 1692j (prohibiting the use of any form that 

creates the false impression that someone other than the creditor is participating 

in the collection of a debt). Thus, even if we apply a materiality standard that is 

framed differently than the FTC’s standard, the FDCPA—viewed in its entirety—

results in more protection for debtors.7

Nor are we convinced that the least sophisticated consumer standard is 

correct as a theoretical matter; in practice most courts implementing that standard 

have incorporated aspects of the reasonable consumer standard. In applying the 

least sophisticated consumer standard, courts typically begin by noting the least 

sophisticated consumer is not an expert but then quickly 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 that the FDCPA “is a remedial statute, 

[so] it should be construed liberally in favor 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 useless in deciding concrete cases. Every statute 

is remedial in the sense that it alters the law or favors 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 protect consumers, 15 U.S.C. 

§1692(a), but this maxim does not tell us “how far to go” in one direction or the 

other. See id. 

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‘does not have the astuteness of a Philadelphia lawyer or even the sophistication 

of the average, everyday, common consumer.’ But the consumer ‘is neither 

irrational nor a dolt,’ and a court must be ‘careful not to conflate lack of 

sophistication with unreasonableness.’” (citations omitted)). They also remind us 

that the least sophisticated consumer “can be presumed to possess a rudimentary 

amount of information about the world and a willingness to read a collection 

notice with some care.” Id. (internal quotation marks omitted). 

 Taking the standard literally, we would review collection notices from the 

perspective of a consumer less sophisticated than anyone else. See Least, Oxford 

English Dictionary (3d ed. 2018) (“Less than any other in size, extent, or 

degree.”). But no court applies the standard to mean what it says. Otherwise, 

could we really expect the consumer with less sophistication than all other 

consumers to be literate, read the entirety of collection notices with some care, 

and be rational? Instead, in varying degrees, courts construe this hypothetical 

consumer to be more sophisticated than the actual least sophisticated consumer. 

In reality, the nebulous least sophisticated consumer standard is simply a 

misnomer. A few circuits, recognizing problems with the least sophisticated 

consumer standard, instead look to the “unsophisticated 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). The Seventh Circuit frames the 

unsophisticated consumer standard’s inquiry as “whether a person of modest 

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education and limited commercial 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 quartile (or some other substantial 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 observed that although the least sophisticated consumer 

and unsophisticated consumer standards use different 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 the same as the least sophisticated 

consumer standard, and the unsophisticated consumer is descriptively more 

accurate to the tests’ function. Even so, neither standard is correct because 

8

 Not all courts that use the unsophisticated consumer standard have been 

as specific as the Seventh Circuit. But they generally view representations from 

the perspective of “consumers of below average sophistication or intelligence” 

while still maintaining “an objective element of reasonableness.” See Peters v. 

Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1055 (8th Cir. 2002) (internal quotation 

marks omitted). 

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neither is statutorily required, and both suffer from vagueness and difficulty to 

apply. 

We thus apply the “reasonable consumer” standard—as applied in the 

FTCA’s false advertising cases and the TILA’s nondisclosure jurisprudence. 

Using the reasonable consumer to assess materiality is consistent with other 

consumer protection laws and provides courts and litigants with a comparable and 

familiar standard. 9 And it is sufficiently protective of consumers, whether 

sophisticated or not. 

In summary, a representation violates § 1692e only if it is materially false, 

deceptive, or misleading to the reasonable consumer. Applying this standard, the 

first question is whether the representation is misleading. In viewing 

representations from the perspective of the reasonable consumer, we assume the 

9

 The reasonable consumer standard we apply is also consonant with how 

materiality is defined in the Restatement (Third) of Torts. The restatement notes 

that reliance on a fraudulent misrepresentation is only justifiable 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 whether to enter into the relevant transaction, or if the 

defendant knew that the plaintiff would give it such weight (whether reasonably 

or not).” Id. § 9 cmt. d (emphasis added). Although a misrepresentation is not 

identical to a “false, deceptive, or misleading representation,” 15 U.S.C. 1692e, 

we find the restatement persuasive as it similarly deals with deceptive 

representations that can harm consumers. 

What is more, the proposed Restatement of Consumer Contracts also 

understands deception to be viewed from 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 outright fraud, but any act or practice that is likely to 

mislead the reasonable consumer.” (emphasis added)). 

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reasonable consumer would read 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 reasonable consumer could reasonably interpret the representation to 

have multiple meanings, one of which is untrue. If a reasonable consumer would 

come to only one interpretation, which is accurate, then the representation is not 

misleading. On the other hand, if a reasonable consumer could understand a 

representation as misleading, materiality is then assessed by asking whether the 

reasonable consumer would have his ability to intelligently respond frustrated. 

B. Application 

Examining Pioneer’s letter, we ask whether the reasonable consumer would 

have been materially misled by the letter at hand. We conclude no reasonable 

consumer would have been materially misled. Mr. Tavernaro contends Pioneer 

violated §§ 1692e and 1692f because the letter gave the appearance of having 

been sent by ECMC, not Pioneer. Although he claims the letter violates different 

portions of § 1692e and § 1692f generally, the crux of each claim turns on the 

same point: whether the letter is materially misleading because it makes the 

reader believe it was sent by the creditor rather than the debt collector. As 

10 The proposed Restatement of Consumer Contracts defines “reasonable” as 

“[a] conclusion, as determined based on the totality of the circumstances, including 

the ordinary behavior and perspective of consumers engaged in the type of 

transaction at issue and their interaction with the business.” Restatement of 

Consumer Contracts § 1(a)(8) (Am. L. Inst., Revised Tentative Draft 2, June 2022). 

As we are similarly determining consumer understanding, we find that definition 

helpful here. 

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evidence for his view, Mr. Tavernaro points to (1) the letterhead, which includes 

ECMC’s logo but excludes Pioneer’s; (2) the absence of an affirmative statement 

in the letter that it was sent by Pioneer rather than ECMC; and (3) the signature 

line, which identifies ECMC but not Pioneer. 

Reviewing the letter, a reasonable consumer would not be misled. First, 

from the beginning of the body of the letter, it forthrightly identifies ECMC as 

the creditor. Aplt. App at 15 (“[ECMC] is the holder of a defaulted federally 

insured student loan debt owed to ECMC by the employee referenced below.”). 

Second, the letter states it “is an attempt, by a debt collector, to collect a debt.” 

Id. Third, on the next page, the letter clarifies that “Pioneer Credit Recovery, 

Inc. is assisting ECMC with administrative activities associated with this 

administrative wage garnishment.” Id. at 16. In other words, 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 attempt to collect the debt. 

Even assuming a reasonable consumer would believe ECMC and not 

Pioneer sent the letter, Mr. Tavernaro fails to demonstrate how that would 

frustrate the reasonable consumer’s ability to respond intelligently. In essence, 

he argues that “the first page of the collection 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 whom [he] should respond.” Id. at 35. 

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But no reasonable consumer would be confused 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 regarding this matter, please call [phone 

number] or send correspondence to: Pioneer Credit Recovery, Inc. [mailing 

address].” Aplt. App. at 16. And it also directs 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. Tavernaro’s remaining argument similarly unpersuasive. 

He contends Pioneer violated the “true name” requirement by placing ECMC’s 

logo in the letterhead and omitting its own logo because the “Supreme Court[] 

held that it is critical for a debt collector to disclose its ‘true name’ in the 

letterhead of a written attempt to collect a debt.” Aplt. Br. at 26 (citing Sheriff v. 

Gillie, 578 U.S. 317 (2016)). Based on his reading of Sheriff, Mr. Tavernaro 

faults the district court for concluding the purported letterhead logos discrepancy 

was immaterial because it understood Sheriff to stand for the proposition that 

“debt collector[s] may not lie about their institutional 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 collection notice was not misleading 

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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 communication “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 signature block convey[ed] who 

the Attorney General ha[d] engaged to collect the debt.” Id. at 326–27. 

Similarly, here the letter as a whole alerts Mr. Tavernaro 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 signature line, and there are no 

allegations in the complaint that ECMC required its logo be used in the 

letterhead, we find that no reasonable consumer—after reading the letter as a 

whole—would misunderstand the basis for the debt or the identities of the 

creditor and debt collector.11 

The Sheriff Court also specifically addressed the “true name” requirement 

and concluded the special counsel did not violate it. The Court concluded the 

special counsel did “not employ a false name when using the Attorney General’s 

letterhead” at his instruction while acting as agents for debt collection. Id. at 

11 Pioneer asserts the letter was authored by ECMC and that, in fact, 

ECMC was required by regulation to issue the letter in its own name. Aple. Br. 

at 20–21. That may be the case, but at this stage in litigation (motion 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. 

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327. The special counsel did not “misrepresent [their] identity” because the 

letters they sent “accurately identif[ied] the office primarily responsible for 

collection of the debt (the Attorney General), special counsel’s affiliation with 

that office, and the address (special counsel’s law firm) to which payment should 

be sent.” Id. Once again, Pioneer’s letter did just that. Although we presume 

ECMC’s logo was not placed on the letterhead on its own 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 contracted to help 

collect the debt (Pioneer), and where to remit debt payments (Pioneer’s mailing 

address). For those reasons, we hold there are insufficient facts alleged to 

conclude Pioneer violated § 1692e by sending the letter. 

As discussed above, Mr. Tavernaro’s § 1692f claim—that the letter was an 

unfair or unconscionable means used in attempting to collect a debt—was 

premised entirely on the letter’s purported deception. Because we hold the letter 

was not materially misleading based on the alleged facts before us, we 

necessarily conclude the use of the letter did not violate § 1692f. 

III. Conclusion 

For the aforementioned reasons, we AFFIRM the district court’s dismissal 

of Mr. Tavernaro’s claims. 

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