F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D A V I D T O U R

G E M A N , Plaintiff-Appellant

,

v.

C O L L I N S F I N A N C I A L S E R

V I C E S , I N C

. , DB A Precision Recovery Analy tics, I nc., a Tex a s corporation; N E L S O N & K E N N A R D , a partnership; P A R A G O N W A Y , I N C .; C O L L I

N S F I N A N C I A L S E R V I C E S USA, I

N C ., Defendants-Appellees

,

a nd

D E L L F I N A N C I A L S E R

V I C E S , L P, Defendant

. No. 12-56783

D.C. No. 3:08-cv-01392- CAB

- NL S

OPI N I ON

A ppeal from the United States District Court for the Southern District of California Cathy Ann B enciveng o, District J u dg e, Presiding

Arg ued and Submitted April 9, 2014—Pasadena, California

F iled J une 25, 2014T O U R G E M A N V

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B efore: J e rome F arris and Andrew D. Hurwitz

, Circuit J udg es, and Paul L . F riedman, District J udg e. *

Opinion by

J udg e F riedman; Dissent by

J udg e F arris

SUMMARY * *

F air Debt Collection P r actices Act

The panel reversed the district court’s summary judg ment in favor of t h e d e f

e n d ants in a class action under the F air Debt Collection Practices Act.

The panel held that the plaintiff had Article I I I standing
to asse r t c l a i m s based on collection letters that he did not receive because the alleg ed violation of h is statutory rig ht not to be the targ et of misleading debt collection communications constituted a cog niz able injury . The panel also held that the plaintiff had a statutory

cause of action under the F DCPA.

The panel reversed the district court’s summary judg ment

on claims that the defendants violated § 1 692e of the F DCPA by misidenti f

y i n g the plaintiff’s o r ig inal creditor in a series of c ollection letters sent to him, as well a s in a complaint filed
ag ainst him in state court. T h e panel held that the letters a nd

* T h e Ho n o rab l e P au l L

. Fried m an , District J u d g e, U.S. District Co u rt f o r th e District o f

Co lu m b ia, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.T O U R G E M A N V

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the complaint were materially m i s leading

, and that the plaintiff was entitled to judg ment under § 1692e(2) and (10).

Dissenting

, J udg e F arr is wrote that he would affirm the district court’s judg ment.

COUNSEL

B rett M. W e aver (arg

ued )

, J o h n son & W eaver, L L P, San Dieg o, Ca l i f

ornia, and Daniel P. Murphy

, L aw Offices o f Daniel Murphy

, San Dieg o , California, f or Pla i n tiffAppellant.

Tomio B

. Narita (arg

u ed) and J effrey A. Topor, Simmonds & Narita L L P, San F rancisco, California, for D efendantAppellee Nelson & Kennard.

No appearance for Defendants-Appellees Collins Financial Services, I n c., Collins F inancial Services USA, I n c., o r Parag on W ay , I nc.

OP INION

F RI EDMAN, District J udg e:

This is a class action broug ht under t h e Fair Debt Collection Practices A ct (“F D CPA” or “the A ct”), 15 U .S.C. § 1692 et seq. Plaintif

f David Tourg eman contends that the defendants — Collins F inancial Services, I nc.; Parag on W ay , I nc.; Nelson & Kennard; and Collins F inancial Services USA, I nc. — made false representations to him in connection withT O U R G E M A N V

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their efforts to c o l l e ct a purported debt. 1 Specifically

, Tourg eman a

rg ues that the defendants violate d t h e Act b y misidentify ing his or ig inal creditor in a series of collection letters sent to him, as well a s in a complaint filed ag ainst him in state court. He also maintains that one defendant, Nelson & Kennard, misleading ly represented that its collection letter

was f rom an attorney when, on Tourg eman’s a ccount of the facts, no attorney h ad b een “meaning fully involved” in evaluatin g h i s case. T h e district court g ranted summary j udg ment to the defendants. W e have jurisdiction un d e r 28 U.S.C. § 1291. W e n ow reverse and hold that judg ment should be entered for Tourg eman.

I

. B ACKGROUND

David Tourg eman boug ht a Dell computer. At the time of the purchase, Tourg e man resided in Mex i c o , and he ordered the computer to be shipped to hi s p a r e n ts’ home in California. H e financed the p urchase throug h Dell F inancial Services, which arrang ed for a loan to b e orig inated b y CI T Online B ank. Dell F inancial then s e r v i ced the loan. According to Tourg e man, he completed repay ment within
two y ea r s o f buy ing the computer. B ut Dell F inancial’s records reflected o therwise. T ourg em a n ’s alleg edly outstanding debt therefore was charg ed off a n d t h en sold,

1 T o u rg em an s erv es h ere as t h e n a m ed p lain tif f o n b eh alf o f a class of

co n su m ers sim ilarly s itu ated

. T h is ap p e a l reso lv es th e essen tial leg al
q u estio n th at u n derlies T o u rg em an ’ s an d th e class’ s claim s u n d er o n e sectio n of th e FDCP A
, 1 5 U.S.C. § 1 69 2e. Fo r ease o f ref eren ce, w e ref

er

o n ly to p lain tif

f T o u rg em an rath er th an

to th e class.T O U R G E M A N V

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a l o n g w ith more than 85,000 other Dell F inancial d ebts, t o Collins F inancial Services. 2

Collins transferred Tourg eman’s file along with the other Dell F inancial accounts to Collins’s affiliated colle c tion

a ge ncy , Parag on W ay , I nc., which mailed three letters to Tou r ge man encourag ing him to pay o ff the purported debt. Collins then referred the f ile to the law firm o f N e lson & Kennard, w hich sent its own dunning letter to Tourg eman. All o f these letters were mailed to addresses in California at which Parag on and Nelson & Kennard b e l ieved Tourg eman mig ht reside. I n f

act, the addresses belong ed to Tourg eman’s
p arents, and Tourg eman himself remained residen t i n Mex ico. After receiving no response to the letters, Nelson & Kennard f

iled a complaint on behalf of Collins in San Dieg o County Superior Court. Tou r ge m an retained counsel, a nd Nelson & Kennard e ventually elected to dismiss the action. I t was during this state court litiga t i o n that Tourg eman l earned of the several letters that had b een mailed to h i m at his parents’ addresses. See Tourgeman v. Collins F in. Servs., Inc.
, No. 08-cv-1392, 2011 W L 3176453, at *6 (S.D. Cal. J uly 26, 2011).

Tourg eman then w ent on the offensive. He filed this lawsuit in f

ederal district court, alleg ing that Collins, Parag on W a y , and Nelson & Kennard had violated the F D CPA, a s well as California law, in their efforts to collect the purported

2 It is im m aterial to th is ap peal w

h eth er T o u

rg em an actu ally h ad paid h is lo an in f u ll; n o n e o f h is FDCP A claim s d ep en d s o n t h e v alid i ty o f th e d eb t.T O U R G E M A N V

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debt from him. 3 Tourg eman’s complaint survived motions to dismiss filed by the s e v eral defendants, see id.

, and the district court later certified a class of consumer plaintiffs, see Tourgeman v. Collins Fin. S ervs., Inc.
, No. 08-cv-1392, 2012 W L 1327824, at *4–10 (S.D. Cal. Apr. 17, 2012). B ut upon the defendants’ m o t ions for summary judg ment a nd Tourg eman’s cross-motion, the c ourt g ranted judg ment to the defendants. See Tourgeman v. Collins Fin. Servs., Inc.
, No. 08-cv-1392, 2012 W L 3731807 (S.D. Cal. Aug . 29, 2012).

On appeal, Tourg e m a n makes two claims under the F DCPA. His main c laim arises from the f a c t t hat the defendants — both in their lette r s and in the state court complaint — falsely identified his orig inal creditor a s “American I nvestment B ank, N.A.,” when, in actuality

, CI T Online B a

nk orig inated the loan. T o u r g e m an contends that
t h is misidentification violated the A ct’s prohibition on t h e “use [of] any f

alse, d eceptive, o r misleading representation o r

m e a n s in connection with the collection of any debt.” 15 U.S.C. § 1692e. Tourg eman’s second claim relates to the letter sent to h im by the law firm of Nelson & Kennard. He
arg ues that the attorney w ho sig n e d t h e letter had not been “meaning fully involved” in e v aluating his case, and that the letter therefore runs afoul of 15 U

. S.C. § 1692e(3), which proscribes “[ t] he false representation or implication that any individual is a

n attorney or that any communication is from

an attorney .” T ourg e man seeks o nly statutory d amag es,

3 T o u rg em an also su ed Dell Fin an cial, w ith w h ich h e later settled ; th at

en tity is n o t th eref o re in v o lv ed in th is ap p eal. Co llin s an d P arag o n W ay h av e elected n eith er to f

ile brief s n o r to o f f er arg u m en t o n th i s ap p eal, b u t

w e n o n eth eless are o b lig ated t o rev iew th e reco rd in f u ll. S ee Bro wn Ba g S o ftwa re v. S

yma n tec, Co rp

. , 9 6 0 F .2 d 1 46 5
, 14 7 8 (9 t h Cir. 1 99 2 ). In an y

ev en t, Nelso n & Ken n ard o f f ers arg u m en ts eq u ally ap p licab le to th e letters

sen t b y P arag on W ay

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conceding that he suffered no pecuniary loss as a result of the defendants’ conduct.

I I

. STANDI NG

Nelson & Kennard first arg u es that Tourg e man lacks both statutory and Ar t i c l e I I I standing to assert any claims based

on the c ollection letters, which Tourg eman admittedly never received when they were sent. The law firm contends that the F DCPA does n ot provide a cause of action to a consumer in Tourg eman’s p osition, n otwithstanding the statute’s broad lang uag e providing that “any d ebt collector who fails to comply w ith any provision of this subchapter with r espect to any person i s l i a ble to such person.” 15 U.S.C. § 1692k(a). Nelson & Kennard further maintains that even if the F DCPA does purport to endow such c onsumers with a cause o f action, Article I I I would forbid it, because consumers who never receive the offending communication have suffered no injury in fact. Tourg eman’s p osition is that a violation of the F DCPA “in and of itself [ ] confers Article I I I standing .”

A. Article I I I Standing

“Article I I I of the Constitution limits federa l -court jurisdiction to ‘Cases’ and ‘Controversies.’” M assachusetts

v. E

. P. A.
, 549 U.S. 497, 516 (2007). The requirement o f standing flows fro m t h i s limitation. Lujan v. D e fenders of W ildlife

, 504 U .S. 555, 5 60 (1992). Standing d octrine assures that “the litig ant is entitled to have the court d ecide the merits of the dispute or of particular issues,” W arth v. S e l d i n , 422 U

. S

. 490, 498 (1975), by demanding that he o r she “possess a ‘direct stake in th e outcome’ of the case,” Hollingsw o rth v. Perry
, 133 S. Ct. 2652, 2662 (2013)T O U R G E M A N V

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(quoting Arizonans for Official E nglish v. Arizona
, 520 U.S. 43, 64 (1997)).

To possess standing

, a plaintiff must have suffere d an “injury in fact,” meaning “an i n v asion of a leg ally protected interest w h i c h is (a) concrete and particulariz e d, a nd (b) actual or imminent, no t c onjectural or hy pothetical.” Lujan
, 504 U .S. at 560 (internal citations and quotation marks omitted). I n addition, “there must be a causal co n n e c tion between the injury and the conduct complained of

. . . [ and] it must be likely

, as opposed to merely speculati ve, that the injury will be redressed b y a favorable decisi o n

. ” I d

. at 560–61 (internal citations and quotation marks omitted).

“The

. . . injury required by Art. I I I may e x i s t s olely b y virtue of ‘statutes c reating leg al rig hts, the invasion of which
creates standing .’” Id. at 578 (quoting W arth

, 4 2 2 U .S. at 500); see also Massachusetts

, 5 49 U .S. at 516 (“Cong ress has the p ower to define injuries and a rticulate chains of causation that w ill g ive rise to a case or controversy where none e x isted before. ” (quoting Lujan
, 504 U .S. at 580 (Kennedy

, J
., concurring in p art and concurring in the judg ment))) (internal quotation marks omitted). I n cases involving statutory rig hts, “the particular st a t u t e and the rig hts it convey s [ ] g uide the standing determination.” Donoghue v. Bulldog Investors Gen. P’ship

, 696 F .3d 1 7 0
, 1 78 (2d Cir. 2012); see also Hammer v. Sam’s East, Inc.
, ___ F .3d ___, 2 0 1 4 W L 2524534, at * 4 & n.3 (8th Cir. J une 5, 2 014) ( noting that “the actual-injury r e q u irement may be satisfied solely b y the invasion o f a leg al rig ht that Cong r ess created ”); Robey v

. Shapiro, M

arianos & Cej da, L.L.C.
, 434 F .3d 1208, 1212 (10th Cir. 2006) (where a c o u rt is “dealing with leg al rig hts created by Cong r ess under the F DCPA

. . . the ‘ injury in f act’ analy sis for purposes o f Article I I I is directly lin k e d t o theT O U R G E M A N V

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question of whether [the plaintiff] has suffered a c og niz a b le statutory injury ”). As the Supreme Court has ex plained, “[ e] ssentially

, the standing question in such c ases is whether th e co nstitutional or statutory provision on w hich the claim
rests properly can be und e r s t o o d as g ranting persons in the plaintiff’s p osition a r ig ht to judicial relief.” W arth

, 422 U.S.
at 500. F or this reason, “the violation of a statu t o r y r i g h t is usually a sufficient injury in fact to confer standing .” Robins v. Spokeo, Inc. , 742 F .3d 409, 412 (9th Cir. 2014).

At the same time, “the require m e n t o f injury in fact is a hard floor of Article I I I jurisdiction that cannot be removed by statute.” S

ummers v. Earth Island Inst.
, 555 U.S. 488, 497 (2009). T hus, there are limits on Cong ress’s ability to elevate
to the status of leg a lly cog niz a ble injuries particular ty

pes o f harm that were previously not r ecog niz ed in law. Lujan
, 5 0 4 U .S. at 578. A s this court h as observed, there a re “ t w o constitutional limitations on cong ressional p o w e r to confer standing

. ” Robins

, 742 F .3d at 413. “F irst, a plaintiff ‘must be among the injured, in the sense that she all e ge s t h e defendants violated her statutory rig h ts

. ’ ” Id. (quoting Beaudry v

. TeleCheck Servs., Inc.
, 579 F

. 3 d 7 0 2
, 7 0 7 (6th Cir. 2009)) (internal quotation marks omitted). “Second, the statutory rig ht at issue must protect ag ainst ‘individual, rather than collective, harm.’” Id. ( quoting Beaudry

, 579 F .3d at 707).

The second limitation poses no problem in this case. The personal interest i n n ot being “the o bject of a

m i s r e p r e s e n t a

tion made unlawful [ by statute]
, ” Haven s R e a l t y Corp. v. Coleman

, 455 U.S. 3 63, 3 73 (1982), assuredly is an “individual, r ather than collective, harm,” Beaudry

, 579 F .3d
at 707 (internal quotation marks omitted). The gravamen of Nelson & Kennard’s arg ument, rather, is that Tourg eman isT O U R G E M A N V

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not truly “among the injured.” That is, it contends that Tourg eman h as n ot suffered the “actual” injury required b y Article I I I because he never received any letter that contained the alleg e dly misleadi n g representations. According to Nelson & Kennard, a consumer who never receives a dunning letter can suffer neit h e r p ecuniary nor emotional harm, nor

can such a consumer be h indered in deciding how to respond to the effort to collect the debt.

The Supreme Court’s decision in Havens Realty Corp. v

. Coleman

, h owever, makes c lear that such pecuniary o r emot i o n al harms are not necessary to a finding of injury in fact. I n Havens
, the Court held that a n African-American “tester”

—

who, by posing as an ap a r t m e nt h unter, aimed to ferret out violations o f the F air Housing Act (“F HA”)

— possessed standing to bring suit b a sed on the defendants’ falsely telling her t h at no a partments in a particular housing complex were available, even thoug h the teste r h a d no intention of actually renting an apartment from the defendant and, indeed, may well have “fully ex pe ct [ ed] that h e would receive false information.” 4 55 U.S. at 374. T h e Court

co n c l u d ed that the “alleg ed injury to [ the plaintiff’s] statutorily created rig ht to truthful housing information” was

a cog niz able injury in a n d of itself — reg ardless of whether the plaintiff actually hoped to r eside in th e defendant’s housing c omplex — and therefore “ the Art. I I I r e q uirement of injury in fact [ was] satisfied.” I d. at 374 ( citi n g W

arth

, 422 U.S. at 500). T he tester plaintiff possessed standing not because she had been “deprived

. . . of the benefits that result from living in a n i n t e g rated community ,” id. at 375, but simply because her “ statutorily created rig h t to t r u thful housing information” had been infring ed, id. at 374–75.T O U R G E M A N V

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Similarly

, we hav e h el d that where a h o me buy er is referred by h er settlement a g ent to a particular title insurer a s

a result of a k ickback d e a l b etween the ag ent and the insurer, the consumer suffers Article I I I injury even thoug h she p aid

n o more for the insurance than she otherwise would ha v e. Edwards v. First Am. Corp. , 610 F .3d 514, 517–18 (9th Cir. 2010), cert. grante d i n p a r t , 1 31 S. Ct. 3022 (2011), cert. dismissed as improvidently granted

, 132 S. Ct. 253 6 ( 2 0 12) (per curiam); accord Alston v. C o u n t rywide Fin. Corp.
, 585 F

. 3d 753, 762–63 (3d C i r

. 2 0 09) (recog niz ing that because Article I I I injury can be predicated on t h e violation of statutory rig hts, “[ a] plaintiff need n ot demonstrate that he

or she suffered actual monetary damag es”); Carter v. WellesBowen Realty, Inc.
, 553 F

. 3d 979, 989 (6th Cir. 2009) (“J ust

as a violation of the rig hts of ‘ test e rs’ to r eceive ‘truthful information’ supports standing

, so does a v i o lation of the rig ht to receive referrals untain ted by conflicts of interest.” (quoting Havens
, 455 U.S. at 373–74))

. More recently

, we concluded that an individual had standi ng to sue a website operator that a lleg edly h ad published inaccurate information about him, reg ardless o f whether the p l aintiff had suffered
any f inancial or emotional harm as a consequence. See Robins

, 742 F .3d at 412–14; accord Beaudry

, 579 F

. 3d at 707; see also In re Zynga Privacy Litig.
, ___ F .3d ___, 2014 W L 1814029, at * 5 n .5 (9th Cir. May 8, 2014) (affirming Article I I I standing based o n F acebook user’s interest in maintaining the privacy of her online identification and URL in f o r m a t i on). I n c a ses involving a variety o f other federal statutes, cou r t s reg ularly have held that the absence o f pecuniary loss is no bar to Article I I I standing

, if the p laintiff has alleg ed a violation o f the rig hts conferred by statute. See,
e.g. , Hammer
, 2014 W L 2 524534, at *3–4 ( action under F air and Accurate Credit Transactions Act); D onoghue

, 696 F .3d
at 1 7 4–80 (action u nder section 1 6(b) of Securities Ex chang eT O U R G E M A N V

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Act); Robey

, 434 F .3d at 1211

– 12 (action under F DCPA); DeMando v. Morris
, 206 F .3d 1300, 13 0 3 (9th Cir. 2 000) (action under Truth in L ending Act).

Althoug h Tourg eman co uld not have suffered any p e c uniary loss or mental distress a s the result of a letter that he did not encounter until months a fter it was sent — when related litig ation was already underway — t h e injury he claims to have suffered was the violation of his rig ht not to be the targ e t of misleading debt c ollection communications. The alleg ed violation of this statutory rig ht — like those r ig hts at issue in Havens
, Robins

, and the other cases that we have noted — constitutes a cog niz able injury under A r ticle I I I

. And “[ w] hen the injury in fact is the v iolatio n o f a s t atutory rig ht that we inferred from the ex istence of a private cause o f action, causation and redre s s a b i lity ” — the two other

e l ements of standing — “will u sually be satisfied.” Robi n s , 742 F .3d at 414. Such is the case here. The alleg ed violation

o f T o urg eman’s statutory rig h ts stems solely from the defendants’ having mailed to him their collection letters, a nd
t h a t injury would be redressed by a n award of statut o r y damag es, w hich t h e F DCPA makes available to prevailing

consumers. See 15 U. S.C. § 1692k(a)(2) (providing for “additional da m a ges”). W e conclude, therefore, that Tourg eman has constitutional standing

.

B . Statutory

Standing

Satisfied that Article I I I of the Constitution would not bar Cong r ess from creating a private cause of action for a

consumer in T ourg e man’s position, we no w turn to ask whether Cong ress actually has done so in the F DCPA. W eT O U R G E M A N V

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start with the tex t of the st a t ute. 4 See Lexmark Int’l, Inc. v

. Static Control Components, Inc.
, 134 S. Ct. 1377, 1 387–88 & n.4 (2014); United States v

. Johnson

, 680 F .3d 1 1 40, 1144 (9th Cir. 2012). The F DCPA prov i d e s that “any d ebt collector who fails to comply with any provision of t h is subchapter with respect to any p e r s o n is liable to such person.” 15 U.S.C. § 1692k(a). An d the substantive provision that Tourg eman alleg es was violated states that “[ a] debt collector may not use a ny f alse, deceptive, or misleading representation or means in connection with the collection of
any debt.” Id. § 1692e. T h e q u estion, then, is whether the “use [ of] any false, d eceptive, or misleading representation

. . . with respect to any person” entails a corollary requirement that the person to whom the repr e sentation was addressed actually

have received it.

The statute’s tex t imposes no such requir ement. Still, it is not unreasonable for Nelson & Kennard to contend that the
very concept of a “representation” contemplates the presence of two parties: the party making the r epresentation and the party to whom it is made. See, e.g. , W E B S T E R ’ S T H I R D N E W I N T ’ L D I C T I O N

A R Y 1926 (1993) (defining “represent” a s meaning

, inter alia

, “to set forth or place before someone (as by statement, account, or d i s c o u rse),” and “[ to] ex hibit (a fa c t ) to another mind in lang uag e” (emphases a dded)); B L A C K ’ S L A W D I C T I O N A R Y 1415 (9th ed. 2 0 09) (defining

“ representation” as meaning

, inter alia

, “[ a ] presentation o f fact — either by words or b y co n d u c t — made to induce

4 A s th e S u

prem e Co u rt recen t ly n o t ed

, w h at th e co u rts h av e so m etim es called “ statu to ry stan d in g ” is p erh ap s b etter ad d ressed b y ask in g w h eth er C o n g r e s s h as created b y a p articu l ar statu te a cau se o f actio n i n w h ich a class o f p lain tif

f s is au th o rized to su e. Lexma rk

, 1 3 4 S. C t. at 1 3 8 7

– 8 8 &

n .4

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someone to act

. . . [ especially ] the m a n ifestation to another that a fact, includin g a s tate of mind, ex ists” ( emphases added)). B ut these definitions do not speak t o t h e n ature o f the intended recipient’ s r o le in the transaction, and the statutory tex t itself is aimed squarely a t t h e debt c ollector’s

c o n d u c t , rather than at its effect on the consumer. See 15 U.S.C. §§ 1692e & k(a) (proscribing the “ use [ o f] any false, deceptive, or misleading representation

. . . with respect to any person” ( emphasis added)). A debt colle ct or w ho addresses a m i s l e a ding dunning letter to a c onsumer as a

means of c ollecting that co n s umer’s debt “use[ s] ” an unlawful p ractice “with r espect to” the consumer, reg ardless of whether some interceding condition — such as non-receipt of the letter, o r the co n s u m e r ’ s failure to read it, or the fact that the c onsumer is savvy enoug h not to be m i s l ed by it

— renders the practice ineffective.

The manner in w hich the majority of courts have a pplied the F DCPA alig ns with this construction of t h e s t a tute. T o beg in with, a consumer possesses a rig h t of action e ven where the defendant’s conduct has not caus ed h i m o r her to suffer
any pecuniary or emotional h arm. E

. g. , Phillips v

. Asset Acceptance, LLC
, 736 F

. 3d 1076, 1083 ( 7 t h Cir. 2 013); Robey

, 434 F

. 3d a t 1212; Mil ler v. W o lpoff & Abramson, L.L.P.
, 321 F .3d 292, 307 (2d Cir. 2 003); Baker v. G.C. Servs. Corp.
, 677 F .2d 775, 7 80–81 (9th Cir. 1982 )

. An F DCPA plaintiff need not even have actually been misled o r deceived by the d e bt collector’s representation; instead, liability depends on wh e t h e r the hypothetical “least sophisticated debtor” likely w ould be misled. E.g.
, Gonzales v. Arrow Fin. Servs., LLC
, 660 F .3d 1055, 1061 & n.2 (9th Cir

. 2 0 1 1 ) ; Terran v. Kaplan

, 109 F .3d 1 428, 1431 ( 9th Cir. 1997). This inquiry is objective and i s u ndertaken as a matter of law. Gonzales

, 660 F .3d at 1061. I n addition, by making availableT O U R G E M A N V

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to prevailing c onsumers both statutory d amag es a nd attorney s’ fees, Cong ress “clearly intended t h at private enforcement actions would be the primacy enforcement tool of the A ct.” Baker

, 6 77 F .2d at 7 8 0–81 (citing elements o f the FD C PA’s leg islative history ) ; see also Evon v. Law O ffices o f Sidney Mickell

, 688 F .3d 1015, 1031 (9th Cir. 2012) (“The F DCPA is a consumer protection statute and was intended to permit, even e n c o urag e, attorney s like [ plaintiffs’ class counsel] to act as private atto r n e y ge nerals to pursue F DCPA claims

. ”); Gonzales

, 660 F .3d at 1061 (noting that “C ong ress e ncourag ed private enforcement [ of the F DCPA] by permitting ag g rieve d individuals to bring suit as private attorney s g eneral ” ( citing Camacho v. Bridgeport Fin., Inc.
, 523 F .3d 973, 978 (9th Cir. 2008))).

These interlocking statutory features demonstrate that Cong r ess intended to achieve its g o al of reg u lating d ebt

c o l lectors’ conduct by motivating consumers to bring enforcement actions if they are the targ et s of unlawful collection efforts. And the Act’s broad reg ulatory purpose is effectuated by measuring the lawfulness of a debt c ollector’s conduct not b y its impact on the particular cons u m e r w ho happens to bring a lawsuit, but rather on its likely effect on the most v ul nerable c onsumers

— the hy pothetical “least sophisticated deb t o r” — in the marketplace. See, e.g. , Gonzales

, 660 F .3d at 1061. I n addi t i on, “[ b] ecause t h e F DCPA

. . . is a remedial statute, it should be constru e d liberally in favor of the consumer.” Clark v. Capit a l C r edit & Collection S

ervs. Inc.
, 460 F .3d 1 162, 1176 (9th Cir. 2 006) (quoting J

ohnson v

. Riddle

, 3 0 5 F .3d 1107, 1117 (10th Cir. 2002)) (omission in orig inal). This rule of const r u c t i o n fortifies o ur c onclusion that a consumer such as Tourg eman, who did not actually receive a dunning letter directed towardT O U R G E M A N V

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him a t the time i t w as sent, nonetheless may bring an action challeng ing the lawfulness of that letter under the Act.

F or these reasons, Tourg eman has both Artic l e I I I standing and a statutory

cause of action under the F DCPA. 5

I I I . CL AI MS UNDER THE F DCPA

W e turn now to the merits of Tourg eman’s claims, which

r e q uire that we d etermine whether the defendant s ’

co m m unications were “misleading ” under section 1692e o f the F DCPA. Althoug h Tourg eman levels t he same basic charg e ag ainst all defendants — that h is orig inal creditor, CI T Online B a

nk, w as f

alsely identified to be American I nvestment B ank — there are a few distinctions between the various challeng ed documents and these differences warrant dividing our separate discussion of them. W e f i rs t address the Parag o n W ay letters, then the c o mplaint drafted b y Nelson & Kennard and filed a g ainst Tourg eman in California
state court, and conclude with the letter sent by Nelson & Kennard. We ex ercise de novo review over a g rant or denial of summary jud g ment. Evon
, 688 F .3d at 1023–24. This
court also “reviews a distr i c t court’s interpretation o f the F DCPA de novo.” Id. at 1024.

5 W e also rej ect Nelso n & K en n ard ’ s co n ten tio n th at T o u rg em an ’s claim s b ased on th e letters are t i m e

- barred

. T h e d istrict co u rt ap p ro p riately co n clu d ed th at “ th e f irst t im e th at [T o u rg em an ] reaso n ab ly

c o u ld h av e b eco m e aw are of th e alleg ed ly f alse an d m islea d i ng rep resen tatio n s in Def

en d an ts’ letters w as w

h en h is f ath er w as serv ed w i th

su m m o n s an d co m

p lain t in th e state co u rt law su i t in Octo b er 2 0 07 ,” af ter

w h ich litig atio n d isco v ery rev ealed th e ex isten ce o f th e co llectio n letters. To u rg ema n , 2 0 11 WL 3 1 7 6 4 5 3
, at * 6 ; se e a lso Ma g n u m v. Actio n Co llectio n S

erv., In c. , 57 5 F.3 d 9 3 5
, 9 3 9– 4 1 (9 th Cir. 2 0 0 9 ) (h o ld in g th at d isco v ery ru le ap p lies in

FDCP A actio n s).T O U R G E M A N V

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The F DCPA “comprehensively reg ulates the con d u ct o f debt collectors,” and “is a stri c t liability statute.” G onzales

, 660 F .3d at 1060–61; see also Clark

, 460 F .3d a t 1174–77 (concluding that the F D C P A holds debt collectors strictly liable). Section 1692e therefore “broadly prohibits the use o f ‘any false, deceptive, or misleading representation or means in connection with t h e c o llection of any debt.’” G onzales

, 660 F .3d at 1061 (quoting 15 U.S.C. § 1 692e). The s ection al s o p r ovides a non-ex haustive list of six teen practices that violate this g eneral prohibition; Tourg eman r elies on three o f the subsections: 1692e(2)(A ), proscribing the “false representation of the c h aracter, amount, or leg al status of any debt”; 1 692e(3), prohibiting the “false representation o r implication that any individual is an attorn ey or that any communication is from an at t o rney ”; and 1692e(10), fo r b i d d ing the “use of any false representation o r deceptive means to collect or attempt to collect any debt.”

“I n this circuit, a debt collector’s liability under § 1692e of the F DCPA is an issue of law.” Gonzale s , 6 6 0 F.3d at 1061. The analy sis is objective a nd “takes i n t o account whether the ‘least sophisticated debtor would likely be misled by a c ommunication.’” Id. (quoting Donohue v

. Quick Collect, Inc.
, 592 F .3d 1027, 1030 (9th Cir. 2010)). “The ‘least sophisticated d eb tor’ standard is ‘lower than simply

ex a mining whether particular lang uag e woul d d e ceive o r mislead a reasonable debtor.’” Id. (quoting Terran
, 109 F .3d
at 1432). “ Most c ourts ag ree that althoug h the least sophisticated debtor may be u ninformed, naive, a nd g ullible, nonetheless her interpretation of a collection notice cannot be biz arre or unreasonable.” Evon , 688 F

. 3d at 1027.

I n addition, “[ i] n assess i ng F DCPA liability

, we are not concerned w ith mere technical falsehoods that mislead noT O U R G E M A N V

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o n e , but instead with g enuinely misleading statements tha t may frustrate a consumer’s ability to intellig ently choose his

or her response.” D o n ohue

, 592 F

. 3d at 1034. I n other

wo r d s, a debt collector’s false o r misleading representation
must b e “material” in order fo r i t t o be actionable under the F DCPA. Id. at 1033. “T h e p u rp ose of the F D CPA, ‘ to provide information that helps consumers to choose intellig ently ,’ would not be furthered by creating liability a s to immaterial information because ‘by definition immaterial information neither contribut e s t o that objective (if the
statement is correct) nor u n d e r mines it (if the statement is incorrect).’” Id. ( q u oting Hahn v. Triumph P’ships LLC
, 557 F .3d 755, 757–58 (7th Cir. 2009)). Thus, “false b ut nonmaterial rep r e s e ntations are not likely to mislead the least sophisticated consume r a

n d therefore are not actionable under [ section] 1692e.” Id.

A. Parag on W ay

L etters

Parag on W ay mailed three letters to Tourg eman that falsely identified h i s orig inal creditor as “American I nvestment B ank, N.A.,” when in fact CI T Online B a nk orig inated his loan. The l e tters also display ed an “Orig inal Account #” that did not match Tourg e man’s orig inal CI T loan number. The f

irst two of these letters, however, d id include

a “Descript i on” line item that stated, “Dell Computer Corporation.” The q u e s t ion presented is whether this combination of features — in particular, the letters’ misidentification o f Tourg eman’s orig inal creditor

—T O U R G E M A N V

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rendered these letters materially misleading under sectio n 1692e. 6

To u r g eman c ontends that these false statements could lead a c onsumer to reach any number of incorr e ct understanding s about the nature of the predicament he or she faces. F or ex ample, the c o n sumer mig ht be concerned that the erroneous information is indicative o f an attempted fraud. Or the consumer mig ht assume that because the let t e r s e eks
to collect a debt that evidently d o e s not belong to him, the letter can safely be disreg arded. Alternatively

, the consumer mig ht be concerned that if he responds to the letter by pay ing the amount demanded, he will lat e r r eceive another letter from a different debt collector attempting to collect the same debt. Tourg eman contends that because each of these beliefs about the nature of the situ ation is just as reasonable as the

6 T o u rg em an places little em p h asis o n th e p resen ce in th e letter s o f an in co rrect acco u n t n u m

b er. A t o ral arg u m en t, h is co u n sel sim p ly stated th at th e u n f

am i liar acco u n t n u m

b er m ad e th e letters “ d o u b ly co n f u s in g .” Co u n sel f o r Nelso n & Ken n ard

, in h i s a r g u m en t, m ain tain ed th at an y claim m ad e o n th e b asis o f th e acco u n t n u m b er h ad n o t b een p led i n T o u rg em an ’ s co m

p lain t, an d h ad o n ly been raised o n ap p eal. B u t th e d istri c t c o ur t clearly co n sid ered th is f actu al alleg atio n i n its decisio n on

su m m ary j u d g m en t. S

ee To u rg ema n , 2 0 1 2 W L 3 7 3 1 8 0 7 , at * 3

.

In an y ev e n t , w e co n clu d e th at th e m isid en tif icatio n o f th e o rig in al cred ito r is in d ep en d en tly s u f f icien t t o co n stitu

t e a v io lati o n o f th e A ct. A lth o u g h th e in co rrect acco u n t n u m b er certain ly co m

p o u n d s th e v io lat i o n , w e d o n o t d eterm in e w he t h er th at p articu l ar f alse statem en t, stan d in g alo n e, w o u ld b e su f

f icien t to v io late th e FDCP A

.T O U R G E M A N V

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one true understanding

, he has been misled or deceived within the meaning of the Act. 7

Nelson & K ennard maintains that despite the erroneous identification of T ourg e man’s orig inal c r e d i t o r , t h e references
to Dell in the first two Parag o n W ay letters were sufficient to tip off even the least sophisticated debtor about the subject
matter of the collection e f fort. And a consumer g enuinely
puz z led by

the mention of American I nvestment B ank, need only have p icked up the phone to call for more information o r to dispute the d ebt. T h us, say s N elson & Kenna r d

, b e cause th e c o n s umer’s ability to intellig ently respond to the letters would not h a v e b e en adversely affected by the incorrect information, the false statements were not “material,” a nd consequently

Parag on W ay

did not violate the Act.

I n D onohue

, we held that a defen d a n t’s mislabeling of a portion of a debt as “interest

. . . of 12%” — when in f a ct the

sum “included pre-finance charg es and i n terest” — did not violate section 1692e because the statement’s falsity “did not undermine Donohue’s a b ility to intellig ently choose h er action concerning her debt.” Id

. at 1034. W e relied on the Seventh Circuit’s decision in Hahn

, which invol v ed comparable facts. See 557 F

. 3d at 757 (“[ T ] h e difference between p rincipal and interest is n o m o r e important to the

7 T o u rg em an also arg u es th at su m m ary j u d g m en t sh o u ld n o t h av e b een g ran ted t o Co l lin s an d P arag o n W ay in lig h t o f d ep o sitio n testim o n y g iv en b y W alt C o llin s, th e f

o u n d er an d f

o rm er CEO o f Co llin s F in an cial Serv ices, i n w

h i ch Mr. Co llin s o p in ed th at th e m i s i d en t if icatio n of T o u rg em an ’ s orig in al cred ito r v i o lated th e FDCP A

. T h is l in e o f arg u m en t is f oreclo sed b y o u r preced en ts, in w h ich w e h av e reco g n ized th at “ w e are

n o t b o u n d b y

a w itn ess’ s o p in io n s ab o u t th e law .” Miller v. Cla rk Cn ty. , 3 4 0 F.3 d 9 5 9 , 9 63 n .7 (9 th Cir. 2 0 0 3 ); see a lso McHu g h v. Un ited S erv. Au to . Ass’n , 1 6 4 F.3 d 4 5 1 , 4 5 4 (9 th Cir. 1 9 9 9 ).T O U R G E M A N V

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F air Debt Collection Practices Act than the color of the paper that [ the c reditor] used.”); see a lso W ahl v. Midland Credit Mgmt., I n c

. , 5 56 F .3d 643, 6 46 (7th Cir. 2009) (“[ Plaintiff] can’t win simply by showing that [ the debt collector’s] use o f the term ‘principal balance’ is false in a technical sense; she has to show that it would mislead the unsop h i sticated consumer.”).

B y contra s t , i n L o x v. CDA, Ltd.

, 689 F .3d 818 (7th Cir. 2012), the court concluded that the statement that a tri b u nal could award attorney s’ fees p ay able b y the consumer

— when, in f

act, such an outcome w as a leg al imp o s sibility

—
was a material misrepresentation because, for the consumer who believed that were t he case, such a fact “would have undoubtedly been a factor in his d e c ision-making process, and v ery well could have led to a decision to pay a debt that he would h ave preferred to contest.” I d. a t 827. And the Six th Circuit has held that a consumer’s alleg ations that she endured “confusion and d elay in try ing to contact the proper party c oncerning pay

ment on her loan and resolution of [her] problem,” w hich alleg edly w as caused by the defendan t ’s false statement that a particular bank held her mortg ag e note, sufficiently stated a cl ai m under the c ourt’s F DCPA

m ateriality standard. W allace v. W

a sh. Mut. Bank, F.A

. , 683 F .3d 323, 327–28 (6th Cir. 2012).

W e are persuaded that, in the contex t of debt c o l l e c t ion, th e identity of a consumer’s orig inal c reditor is a critical piece of information, and t h e r e fore its false identification in a dunning letter would be likely to mislead some consumers in a material way

. Unlike mislabeling p ortions of a total d ebt

as principal rather th a n interest — literally false, but

m eaning ful only to the “ hy p ertechnical” reader, see W a h l

, 556 F .3d at 645 — the f

actual e rrors in Parag on W ay ’ s lettersT O U R G E M A N V

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to Tour ge m a n could easily cause the least sophisticated debtor to suffer a disadvantag e in charting a course of action in resp o n s e to the collection effort. See Donohue

, 592 F .3d
at 1034 (a false statement violates the F DCPA if i t “ m ay frustrate a consumer’s ability to intellig ently choose his or her response”). 8

The debtor who takes Parag on Way ’s letters at face value

— e ither because he does n ot r em e m b er the d etails concerning his financing of a computer boug ht several y ears beforehand, or perhaps because he never knew the identity o f his ori g inal creditor to beg in with — mig ht eng ag e in a fruitless atte m p t to investig ate the f acts of this non-ex istent debt, in a r e s p o n sible effort to determine how to most effectively respond to the c ollection notic e

. This debtor mig ht, quite reasonably

, contact American I nvestment B a nk
to obtain backg round information s o t h a t he can remember what had e a r l i e r transpired, or to obtain any records that the bank holds pertaining to his debt so t h a t h e can p rove he already had p aid it off, if h e believes such is the case. B ut, o f
course, American I

n vestment B ank would have no record o f

a loan ag r eement; and the unknown account number c ertainly is o f no help in g etting to t h e b o ttom of thing s. E v en if the

8 T h e d i s trict co u rt w as “ n o t p ersu ad ed th at th e m i sid en tif icatio n o f th e

o rig in al cred ito r, o r th e acco u n t n u m b er, in th is case w o u ld ‘f ru strate a

co n su m er’ s a b i l i t y to i n tellig en tly ch o o se h is o r h er resp o n se,’ ” b ecau s e

“ t h e least so p h isticated deb to r w o u ld n o t h av e reco g n ized th e o rig in al cred ito r, o r acco u n t n

u m b er, ev en if th ey h ad b een co rrectly id en tif ied in
t h e f i rst in s tan ce.” To u rg ema n , 2 0 1 2 W L 3 7 3 1 8 0 7
, at * 5 (q u o t i ng Do n o h u e , 5 9 2 F.3 d at 1 03 4 ). T h is ap pro ach

, h o w ev er, d ef eats th e p u rp ose

o f th e least so p h isticated d eb to r stan d ard

, w h i ch is t o “ en su

re th at th e FDCP A pro tects a ll co n su m ers, th e g u llib le as well a s t h e sh rew d .” Cla rk

, 4 6 0 F.3 d at 1 1 7 1 (q u otin g Clo m o n v

. Ja ckso n , 9 88 F .2 d 1 3 1 4
, 1 3 1 8

– 1 9 (2 d Cir. 1 9 9 3 )) (alteratio n o m itted ) (em

p h ases ad ded ).T O U R G E M A N V

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c onsumer eventually finds his way to learning that the let t e r referred to the Dell d ebt he had incurred with CI T Online B ank, the delay already w ould have cost him some portion o f the thirty day s that the F DCPA g r ants to consumers before having to respond to a collection n otice, lest the debt collector be entitled to assume the validity of the debt. See 15 U.S.C. § 1692g

. And such “confusion a nd delay in try ing to contact the prop e r party concerning pay ment on [ the] loan” is precisely the k ind of infrin g e m e n t of the consumer’s best interests that the F DCPA seeks to combat. W allace

, 683 F .3d at 327. 9

By e nsuring that consumers are fully and truthf u l l y apprised of t h e facts and of their r ig hts, the F DCPA enables them “to understand, m ak e informed decisions about, a nd participate fully and meaning fully i n the debt collection process.” Clark

, 460 F .3d at 1171; s e e also Donohue

, 5 9 2 F. 3d at 1033 (“The purpose of the F DCPA [is] ‘to provide information that helps consumers to choose

9 Deb t co llecto rs m

u st n o t m ak e rep resen tatio n s t h at ten d t o lead

co n su m ers t o f o reg o th e v alu ab l e rig h ts g ran ted to th em b y th e A ct. S ee, e.g

. , Ea sterlin g v. Co llecto

, In c. , 69 2 F.3 d 2 2 9
, 2 3 5 ( 2 d Cir. 20 1 2) (co llectio n l etter v io lated sectio n 1 6 9 2 e d u e to its “ cap acity to d isco u rag e d eb to rs f ro m f u lly av ailin g th em selv es o f th eir l eg al rig h ts”); Ru ssell v. E q uifa x A.R.S

. , 7 4 F.3 d 3 0
, 3 4

– 3 6 (2 d Cir. 1 9 9 6) (co l lectio n l e t t e r s

v io lated b o t

h sectio n s 1 6 92 g an d 1 6 9 2 e(1 0) b y em p lo y i n g lan g u ag e th at

w o u ld ten d to m ak e co n su m er “ u n certain as to h er rig h ts” to en j o y th irty

d ay p erio d w ith i n

w h ich to d isp u te d eb t or d em an d v alid atio n f ro m deb t

co llecto r); S

wa n so n v. S

. Or. Cred it S

erv., In c. , 8 6 9 F.2 d 1 2 2 2
, 12 2 5

– 2 6 (9 th Cir. 1 9 8 8 ) (p er cu riam ) (d eb t co llecto r v i o lated sectio n 1 6 9 2 g b y

o v ersh ad o w in g n o tice o f t h i rty

- d ay p erio d b y in clu d in g lan g u ag e th at

“ pro m is[ed ] h arm

to th e d eb to r w

h o w aits b ey o n d 1 0 d ay s”).T O U R G E M A N V

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intellig ently .’” (qu o ting Hahn

, 5 57 F .3d at 757–58)). 1 0 Parag on W ay ’ s false r epresentations would li k e l y mislead

consumers in a manner that deprives them of their rig ht to enjoy these benefits. W e therefore h old that these letters contained materially mislea ding statements that trig g er liability under sectio n 1 6 9 2e of the A ct. According ly

, the appellant is e ntitled to judg ment on h i s claims ag ainst Parag on W ay

under subsections 1692e(2) and e(10).

Nelson & K ennard repeatedly sug g ests that a perplex ed

consumer could simply place a phone call to the d ebt collector to c lear up any confusion. B u t for many consumers

— particularly those w h o do not even recog niz e that they have encountered f

a l s e information — making such a c all likely w oul d n o t be their first r eaction to the letter, nor does the F DCPA require that it b e s o

. As we have previously

ex p lained, “consumers are under n o o blig a tion to seek

ex p lanation of confusing or misleadin g l a n g uag e in d ebt collection letters.” Gonzales

, 660 F .3d at 1062 (citing Fields

v. W ilber Law Firm, P.C.
, 3 83 F .3d 562, 566 (7th Cir. 2004)). I ndeed, Nelson & Kennard’s arg ument, t a k en to its furthest reach, would t r ansform many of the F DCPA’s substantive provisions into surplusag e, converting any dunning letter bearing a return a ddre s s and phone number into a

10 Nelso n & Ken n ard m ay b e co rrect th at th e FDCP A d o es n o t req uire th at t h e o rig in al cred i to r b e id en tif ied in co lle c t i o n letters sen t to

c o n su m ers — b u t w

h ere a d eb t co llecto r h a s ch o sen to id en t i fy t h e

o rig in al cred ito r, an d h as d on e so in accu rately

, th e f als e r e p r e sen tatio n

w o u ld lik ely th w art a co n su m er’ s ab ility to f

reely n av i g ate a co u rse of actio n i n resp o n s e to th e co l lectio n n o t ice. Co n g ress’ s reco g n itio n in th e FDCP A th at th i s in f

o rm atio n is im p o rtan t — ev en if n o t so essen tial th at d e b t co llecto rs mu st d isclo s e it w ith o u t f irst bein g ask ed

, see 15 U.S.C. § 1 6 9 2g (a)(5 ) — s u p p o r ts th e co n clu sio n th at its f alse p ro v i sio n co u ld h av e th is ty

p e o f d etrim en tal im

p act o n th e co n su

m er.T O U R G E M A N V

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communication not mi s l eading by v irtue of those features. See Fields

, 3 8 3 F .3d at 566 (noting that the Seventh Circuit has “ rejected the prop osition that a d ebt collector could provide incomplete information in a dunning letter so long a s it provided a telephone number for the debtor to call ” ). I n t erpreting materiality in such a fashion would g ut the F DCPA’s p rohibiti o n of misleading representations, a nd “[ w] e must avoid a construction which r enders any lang uag e of the e nactm e nt superfluous.” Security Pac. Nat’l Bank v

. Resolution Trust Corp. , 63 F .3d 900, 904 (9th Cir. 1995).

B . State Court Complaint

W e nex t address the c omplaint prepared by Nelson & Kennard and filed ag a i nst Tourg eman in California state court, w hich Nelson & K ennard deliv e r ed directly to Tourg eman’s father, who then transmi t t e d i t to his son in Mex ico. Tourgeman
, 2012 WL 3731807, at *2, * 8

– 9

. 1 1 B ecause the one material aspect of this complaint is the same

as that which renders Parag o n W ay ’s letters misleading

— namely

, the inclusion of erroneous refer e nces to American I n v e s tment B ank

— the preceding discussion applies with equal force to this document. The complaint presented the information in a somewhat different format, however; t he body of the c omplaint twice referred to a loan ag reement between American I nvestment B ank a nd Tourg eman. Attached to the complaint was a b lank ex emplar o f s u ch an

11 In Do n o h u e , t

h is co u rt h eld th at a co m

p lain t th at is serv ed d i rectly on

a co n su m er q u alif

ies as a “ co m

m u n icatio n ” th at is su

bj ect to th e strictu res

o f sectio n 1 6 92 e. 5 9 2 F.3 d at 1 03 1– 3 2

. A t least o n e co u rt h as g on e f u rth er an d co n clu d ed th at a co m p l ain t th at is m erely f

iled

, b u t n o t actu ally

serv ed

, also can g iv e rise to liab ility u n d er th e FDCP A

. Ph i llip s , 7 3 6 F.3 d at 1 0 8 2

– 83

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ag reement between the bank and a Dell Computer customer, which featured the log os of both American I n vestment B a nk and Dell. Althoug h the complaint lacked any r eference to the

erroneous account numb e r , b ased o n the reasoning of the preceding section of this opinion, w e necessarily con cl u d e that N elson & Kennard v iolated the Act by transmitting this complaint to Tourg eman.

F urthermore, a c onsumer could be harmed by a complaint

— a s opposed to a dunning letter — in way s distinct y et equally problematic as those we have already discussed. F o r

ex a mple, the consu m er who eng ag es leg al counsel mig ht be unable to a c c u r a t ely apprise the lawy er of the relevant

c i r cumstances, potentially leading to lost opportunities t o settle the debt. And the stakes a re undoubtedly h ig her when the consumer faces the possibility of a default judg ment rather than the mere continuation of collection attempts.

C. Nelson & Kennard L etter

F inally

, w e come to t h e letter mailed to Tourg e man b y Nelson & Kennard. That letter informed him that the firm’s client, Collins F inancial Services, “ ha[ d] forwarded [ his]
account to this office with instructions that w e t a ke appropriate action to e f

fect collection of the above-referenced balances due.” The Nelson & Kennard letter did not mention Dell. I t did r eference “American I n vestment Ba n k

, N.A.,” but, unlike the Parag on W ay letters, it did not label the bank as Tourg eman’s “orig inal creditor.” Rather, both the bank’s

name a nd the sam e incorrect a ccount number that a ppeared in Parag on’s letters were placed in a “Re:” line item atop the body o f the letter. There was no e x planation as to t h e meaning or sig nificance of these pieces of information.T O U R G E M A N V

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Nelson & Kennard arg ues that the absence o f a label informing Tourg eman that American I nvestment B ank was the orig inal credit o r somehow makes the letter less misleading than those sent by Parag on W ay , because t he orig inal creditor was not “misidentified.” On the contra r y , Nelson & Kennard’s letter g ives the least sophisticated debtor

even less of a clue as to how to investig ate th e claim being made ag a inst him, making it m o r e likely that the consumer will w aste valuable time and suffer confusion in his efforts to f o rmulate a response. N elson & Kennard a lso emphasi z e s that it s letter does c orrectly identify Tourg eman’s current creditor — Collins F inancial Se rv i ces — but, in f act, the letter simply states that Collins i s the firm’s “client.” B y

c o n t r ast, Parag on W ay ’s letters clearly describe Collins a s Tourg eman’s “curre nt creditor.” B e cause the Nelson & Kennard letter does not d escri b e w h o American I n vestment B ank purports to be, and as one cannot assume that the least sophisticated debtor understands that the fir m ’ s “client”

— C o l l i n s F inancial Services — is the entity to whom he currently owes money , the c onsumer mig ht v ery well think that the letter concerns a debt c urr e n t l y owned by American I n v e stment B ank. Such a misunderstanding c ould f urther impede the consumer’s ability to ex ercise his rig hts under the F DCPA.

Nelson & Kennard also arg u es that because its letter came

on the heels of the letters sent b y Parag on W ay — two o f which mentioned Dell Computer Corporation — a consumer in Tourg eman’s position w ould know wh a t t h e letter concerned and therefore would not be misled by the absence of any reference to Dell. W e n eed not decide whether there
may be some circumstances in which it would be appropriate, i n determining a dunning letter’s tendency to mislea d

, t o consider the consumer’s receipt o f earlier letters sent by aT O U R G E M A N V

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different debt collector. As we already have ex plained, P ar a go n W a y ’ s l e t t e r s w e r e materiall y m i s l ea d i n g notwithstanding having included references to Dell. The fact that Tourg eman had bee n sent the misleading Parag on Way letters therefore does not help Nelson & Kennard.

Tourg eman also advances a n independent g round f

o r finding that Nel s o n & Kennard’s d unning letter violated the F DCPA. H e a lleg es that the lawy er who sig ned the Nelson & Kennard letter was not “meaning fully involved” in t h e evaluation of Tourg eman’s case b e f o re sending a letter on law firm letterhead. The “meaning ful involvement doctrine”

— to w hich t h i s court has once r eferred in passing

, see Gonzales

, 660 F .3d at 1063, but which we have never squarely adopted — g rows out o f th e l a n guag e in 15 U .S.C. § 1 6 92e(3), which prohibits “ [ t] he false r epresentation o r implication that any individual is an att orney or that any communication is from an attorney .” 1 2

The foundational c ase i s Clomon v. Jackson

, 988 F .2d 1314 (2d Cir. 1993). I n Clomon

, the defendant worked as the part-time g eneral counsel of a debt collection ag ency , a nd authoriz ed the ag ency to send dunning lett e r s bearing his

name and a f

acsimile of his sig nature — even thoug h he did
not personally review e ither the individual letters or the f iles of the consumers to whom the letters w ere sent. Id. at 1316. The Second Circuit concluded that the attorney thereby vi o l ated subsection 1692e(3) b ecause “the collection letters

were n ot ‘ from’ [ the defendan t ] in a ny meaning ful sense o f

12 T h e co n cep t o f “ m ean in g f u l in v olv em en t” is o n ly p ertin en t to claim s b r o u g h t u n d er su

b sectio n 1 6 9 2 e(3 ), n o t t o su bsectio n e(2 ) an d e(1 0) claim s, b ecau s e th e p h rase h as d ev elo p ed th ro u g h co u rts’ co n stru ctio n of th e u n iq u e lan g u ag e o f

e(3 ).T O U R G E M A N V

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that word.” Id. at 1320. Driving this conclusion, in part, was the court’s f

inding that the “use of an attorney ’s sig nature implies — at least in the absence o f lang uag e to the contrary

— that the attorney sig ning the letter formed a n opinion about how to manag e the case of the debtor to whom the letter was sent.” Id. at 1321. This construction o f subsection 1692e(3) h a s since been adopted by four o ther circuits. See

, e

. g

. , Lesher v

. Law Offices of

Mitchell N. Kay, P.C.
, 650 F .3d 993, 1003 (3d Cir. 2011); Kistner v. Law Offices of Michael P. Margelefsky

, 518 F .3d 4 33, 438–41 ( 6th Cir. 2008); Taylor v

. Perrin, Landry, deLaunay & Durand

, 103 F .3d 1 232, 1238 (5th Cir. 1997); Avila v. Rubin , 84 F .3d 222 (7th Cir. 1996). The Seventh Circu i t e x plained the rationale for the doctrine this way : “ An unsophisticated c o n sumer, g etting a letter from

an ‘attorney ,’ knows the p rice of poker has j u s t go n e up.” Avila , 84 F

. 3d at 229.

The district court g ranted summary judg ment t o Nelson & K ennard on Tourg eman’s claim under s u b s e c t i o n 1 6 92e(3). I t assumed that the meaning f u l involvement doct r ine was applicable, see Tourgeman
, 2012 W L 3 7 3 1 8 07, at *6, perhaps because in a

n earlier decision in the case — when the action

was bef o re a nother district judg e on Nelson & Kennard’s motion to d ismiss the complaint — that judg e had adopted the doctrine. S

ee To u r g e ma n , 2 011 W L 3176453, at *8–9. I n ruling on th e s ummary judg ment motion, however, the district
court found it undisputed that t he attorney who sig ned the collection letters was meaning fully involved, a n d g ranted judg ment to Nelson & K e n n a rd o n the meaning f ul involvement claim. 2012 W L 3731807, at *6–7.

W e need not determine whether to adopt a construction o f

s ection 1692e(3) that incorporates a requirement o f meaning ful involvement by a n attorney who sends a dunningT O U R G E M A N V

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letter. 1 3 W e have already concluded that Nelson & Kennard violated the F DCPA b y including misleading r e fe r e nces to American I nvestment B ank in both its letter to T o u r geman and in the state court c omplaint it f i l e d a ga inst him. These

c onclusions a

re sufficient to warrant both reversal o f t h e judg ment g ranted to Nelson & K e n nard a nd entry o f j udg ment in favor of Tourg eman. B ecause “[ v] iolati o n o f a sing le [ F DCPA] provision is sufficient to establish liability

, ” Gonzales

, 660 F .3d at 1064 n .6, we need not decide whether Nelson & Ken n ard also violated subsection 1692e(3) based on a lack of meaning ful attorney involvement. 1 4

I V. CONCL USI O N

F or the foreg o ing reasons, we conclude that the judg ment of the district court g r anting judg ment to Collins, P a r ag on W a y , and Nelson & Kennard must be reverse d

, and that

1 3 F o r th is reaso n , w e d en y th e m o tio n o f th e Natio n al A sso ciatio n o f R e t a i l Co llectio n A tto rn ey s f o r leav e to f

ile an a micu s cu ria e b rief in

su p p o rt o f th e ap p ellees.

14 T h e o n ly p o ten tial relev an ce o f f in d in g an ad d itio n al v io latio n co u ld b e w ith resp ect to calcu latin g th e am ou n t o f statu to ry d am ag e s t o b e

aw ard ed to T o u rg em an

. S ee Cla r k

, 4 6 0 F.3 d at 1 17 8 (co n clu d in g th at “ th e f act th at n u m ero u s v io latio n s o f th e FDCP A are p red icated u

p o n o n e set

o f circu m stan ces s h o u l

d b e co n sid ered an d th at it is b est co n sid ered d u rin g th e calcu l atio n

o f d am ag es” (citin g 1 5 U.S.C. § 1 6 9 2 k (a), (b ))); Peter v. GC S ervs. L.P.
, 3 1 0 F.3 d 3 4 4
, 3 5 2 n .5 (5 t h Cir. 20 0 2 ). Sh o u ld th ere arise

a d isp u t e w ith resp ect t o d a m ag es t h at im p licates a n eed to d ecid e T o u rg em an ’ s claim u n d er 1 6 92 e(3 ), th e d istrict co u rt p resu m ab ly w i l l ad h ere t o th e l a w o f th e case an d ap p ly th e m ean in g f u l in v o lv em en t d o ctrin e. B u t u n lik e th e d istrict c o u r t , w e v i ew th e ev id en ce t o b e eq u iv o cal as to w

h at th e atto rn ey d id or d id n o t d o b ef o re th e f irm sen t th e d u n n in g letter; o n th is reco rd

, n eith er p arty w o u ld b e en titled t o su m m ary j u d g m en t o n

th is claim

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judg ment should instead be entered for To u r ge man ag ainst Parag on W ay and Nelson & Kennard. We ex press n o view
reg arding whether Tourg e man is entitled to judg ment ag ainst Collins itself, as Tourg e man’s claims ag a inst that entity were based on a theory of vic a ri o us liability that was neither decided by the district c o u r t nor briefed on this appeal. W e remand for further proceeding s c onsistent with this opinion.

REVERSED AND REMANDED.

F ARRI S, Circuit J udg e, dissenting :

I respectfully dissent. As I view the record, the trial court g ot it rig ht. I would affirm.