734 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
States to regulate false advertising and unfair business practices perhaps may further the goals of the EPCA. [¶] Accordingly, California’s
regulation of false advertising does not stand as an ‘obstacle to the accomplishment and execution of the full purposes and objectives of
Congress.’ [Citations.]” (True, supra, 520 F.Supp.2d at p. 1181.)
Honda attempts to distinguish True by noting that the True court was considering the preemption argument at the initial pleading stage, not
at summary judgment, and that the court “did not consider express preemption at all, or even cite [title 49 United States Code section] 32919,
much less the express limitation of state regulation of fuel economy disclosure to requirements that are identical with the federal ones.”
In a supplemental brief filed after Paduano filed his reply, Honda brought to this court’s attention two recent United States Supreme Court
cases that Honda believes support its position on the preemption issues: Riegel v. Medtronic, Inc. (2008) 552 U.S. 312, 128 S.Ct. 999, 169
L.Ed.2d 892 ( Riegel ) and Rowe v. New Hampshire Motor Transport Assoc. (2008) 552U.S. 364, 128 S.Ct. 989, 169 L.Ed.2d 933 (Rowe ).FN16
These decisions do not alter our analysis in this case.
FN16. On April 22, 2008, Honda moved to be permitted to file the supplemental brief, and Paduano objected. On May 22, this court
ordered that Honda’s motion would be considered with Paduano’s appeal. We grant Honda’s motion and address the merits of its
arguments.
In Riegel, the United States Supreme Court considered “whether the pre-emption clause enacted in the Medical Device Amendments of 1976 [
(MDA) ], 21 [United States Code section] 360k, bars common-law claims challenging the safety and effectiveness of a medical device given
requirements that pertain only to medical devices. (Riegel, supra, 128 S.Ct. at p. 1010.) Honda contends that Riegel “confirms that Section
32919(b) preempts Paduano’s efforts to base a state-law tort claim on the disclosure of EPA fuel economy figure in advertising.” According to
Honda, Riegel demonstrates that the preemptive effect of title 49 United States Code section 32919(b) applies to state regulation of
manufacturers’ advertising, and not only to attempted regulation of the Monroney sticker.
The federal statute at issue in Riegel differs from 49 United States Code section 32919(b), the preemption provision at issue here. (See Altria
or enforce a law … related to a price, route, or service of any motor carrier … with respect to the transportation of property.’ 49 U.S.C. §
14501(c)(1); see also 49 U.S.C. § 41713(b)(4)(A) (similar provision for combined motor-air carriers).” (Rowe, supra, 128 S.Ct. at p. 993.) The
CHAPTER 45: CONSUMER LAW 735
question facing the Rowe court was whether this federal provision “pre-empts two provisions of a Maine tobacco law, which regulate the
delivery of tobacco to customers within the State.” (Ibid.)
FN17. The True court found the fact that the state law was compatible with the federal law persuasive in rejecting Honda’s
assertions of preemption. (True, supra, 520 F.Supp.2d at 1181.)
The issue of “consistency” arose in Morales in the context of interpreting the “relating to” language in the Airline Deregulation Act’s express
preemption provision. In this case, however, our concern with regard to the consistency of the federal law and the enforcement of Paduano’s
deceptive advertising claims arises in the context of Honda’s own implied preemption argument, i.e., that Paduano’s claims are preempted
FN18. Generally courts will consider only issues properly raised by the parties on appeal. (E.L. White, Inc. v. City of Huntington Beach
(1978) 21 Cal.3d 497, 510-511, 146 Cal.Rptr. 614, 579 P.2d 505; California Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th
1264, 1274-1275, 36 Cal.Rptr.2d 404; Bruno v. Superior Court (1990) 219 Cal.App.3d 1359, 1365, 269 Cal.Rptr. 142.)
[31][32] Despite the dissent’s assertion that Paduano failed to raise claims related to Honda’s “driving style” statements in his opposition to
the motion for summary judgment, it is clear that he in fact did so, and that his argument related to both the CLRA and UCL in that it raised
FN19. It is ironic that the dissent claims that the majority has “warmly embrac[ed]” Paduano’s “new” theories of liability presented
on appeal, when the dissent embraces an argument that Honda never raised, either in the trial court or in this court.
Further, the trial court ruled on the substance of this issue, stating, “To the extent plaintiff relies on a brochure he obtained at the dealer
FN20. While the dissent would protect Honda from the “surprise” supposedly occasioned by Paduano’s claims that Honda made
misrepresentations in its brochure as to how one could achieve the superior mileage touted by Honda, the dissent ignores the fact
that Honda never mentioned that it intended to raise a defense of federal preemption until it filed its motion for summary
judgment. Honda did not seek to amend its answer to the complaint to assert three additional defenses based on federal
Case 45.3
U.S.,2010.
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA
130 S.Ct. 1605, 176 L.Ed.2d 519, 78 USLW 4301, 10 Cal. Daily Op. Serv. 4912, 2010 Daily Journal D.A.R.
5875, 22 Fla. L. Weekly Fed. S 247
adapted to avoid any such error.” This case presents the question whether the “bona fide error” defense in § 1692k(c) applies to a violation
resulting from a debt collector’s mistaken interpretation of the legal requirements of the FDCPA. We conclude it does not.
I
CHAPTER 45: CONSUMER LAW 737
A
Congress enacted the FDCPA in 1977, 91 Stat. 874, to eliminate abusive debt collection practices, to ensure that debt collectors who abstain
from such practices are not competitively disadvantaged, and to promote consistent state action to protect consumers. 15 U.S.C. § 1692(e).
The FDCPA also provides that “any debt collector who fails to comply with any provision of th[e][Act] with respect to any person is liable to
such person.” 15 U.S.C. § 1692k(a). Successful plaintiffs are entitled to “actual damage [s],” plus costs and “a reasonable attorney’s fee as
determined by the court.” Ibid. A court may also award “additional damages,” subject to a statutory cap of $1,000 for individual actions, or,
for class actions, “the lesser of $500,000 or 1 per centum of the net worth of the debt collector.” § 1692k(a)(2). In awarding additional
damages, the court must consider “the frequency and persistence of [the debt collector’s] noncompliance,” “the nature of such
“Notice,” later served on Jerman, stating that the mortgage debt would be assumed to be valid unless Jerman disputed it in writing. Jerman’s
lawyer sent a letter disputing the debt, and Carlisle sought verification from Countrywide. When Countrywide acknowledged that Jerman had,
in fact, already paid the debt in full, Carlisle withdrew the foreclosure lawsuit.
Jerman then filed her own lawsuit seeking class certification and damages under the FDCPA, contending that Carlisle violated § 1692g by
stating that her debt would be assumed valid unless she disputed it in writing.FN1 While acknowledging a division of authority on the question,
FN1. Section 1692g(a)(3) requires a debt collector, within five days of an “initial communication” about the collection of a debt, to
FN2. The District Court distinguished, for instance, Graziano v. Harrison, 950 F.2d 107, 112 (C.A.3 1991), which held a consumer’s
2005), and held that the plain language of § 1692g does not impose an “in writing” requirement on consumers. See 464 F.Supp.2d,
at 725.
FN3. Because the question was not raised on appeal, the Court of Appeals did not address whether Carlisle’s inclusion of the “in
writing” requirement violated § 1692g. 538 F.3d, at 472, n. 2. We likewise express no view about whether inclusion of an “in writing”
requirement in a notice to a consumer violates § 1692g, as that question was not presented in the petition for certiorari. Compare
FN4. Compare, e.g., 538 F.3d, at 476 (case below), with Baker v. G.C. Servs. Corp., 677 F.2d 775, 779 (C.A.9 1982), and Hulshizer v.
Global Credit Servs., Inc., 728 F.2d 1037, 1038 (C.A.8 1984) (per curiam).
The Courts of Appeals have also expressed different views about whether 15 U.S.C. § 1692k(c) applies to violations of the FDCPA
resulting from a misinterpretation of the requirements of state law. Compare Johnson v. Riddle, 305 F.3d 1107, 1121 (C.A.10
2002) (concluding that § 1692k(c) applies where a debt collector’s misinterpretation of a Utah dishonored check statute resulted
in a violation of § 1692f(1), which prohibits collection of any amount not “permitted by law”), with Picht v. Jon R. Hawks, Ltd., 236
F.3d 446, 451-452 (C.A.8 2001) (stating that § 1692k(c) does not preclude FDCPA liability resulting from a creditor’s mistaken legal
interpretation of a Minnesota garnishment statute). The parties disagree about whether § 1692k(c) applies when a violation
(1833) (opinion for the Court by Story, J.); see also Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (“The
general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal
system”).FN5 Our law is therefore no stranger to the possibility that an act may be “intentional” for purposes of civil liability, even if the actor
lacked actual knowledge that her conduct violated the law. In Kolstad v. American Dental Assn., 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494
(1999), for instance, we addressed a provision of the Civil Rights Act of 1991 authorizing compensatory and punitive damages for “intentional
discrimination,” 42 U.S.C. § 1981a, but limiting punitive damages to conduct undertaken “with malice or with reckless indifference to the
federally protected rights of an aggrieved individual,” § 1981a(b)(1). We observed that in some circumstances “intentional discrimination”
FN5. The dissent discounts the relevance of the principle here, on grounds that this case involves the scope of a statutory exception
to liability, rather than a provision “delineat[ing] a category of prohibited conduct.” Post, at 1636 (opinion of KENNEDY, J.). That is a
distinction without a difference, as our precedents have made clear for more than 175 years. Barlow involved a statute providing for
forfeiture of any goods entered “by a false denomination” in the office of a customs collector “for the benefit of drawback or bounty
upon the exportation”; the statute included, however, an exception under which “said forfeiture shall not be incurred, if it shall be
FN6. Different considerations apply, of course, in interpreting criminal statutes. Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57-58,
n. 9, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). But even in that context, we have not consistently required knowledge that the
offending conduct is unlawful. See, e.g., Ellis v. United States, 206 U.S. 246, 255, 257, 27 S.Ct. 600, 51 L.Ed. 1047 (1907) (observing,
in the context of a statute imposing liability for “intentiona[l] violat[ions],” that “[i]f a man intentionally adopts certain conduct in
Copyright Act authorizing court to reduce damages where “the violator was not aware and had no reason to believe that its acts constituted a
violation”).
Congress also did not confine liability under the FDCPA to “willful” violations, a term more often understood in the civil context to excuse
mistakes of law. See, e.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-126, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) (civil damages for
“willful violations” of Age Discrimination in Employment Act of 1967 require a showing that the employer “knew or showed reckless disregard
for the matter of whether its conduct was prohibited” (internal quotation marks omitted)); cf. Safeco Ins. Co. of America v. Burr, 551 U.S. 47,
57, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (although “ ‘willfully’ ” is a “ ‘word of many meanings’ ” dependent on context, “we have generally
taken it [when used as a statutory condition of civil liability] to cover not only knowing violations of a standard, but reckless ones as well”)
(quoting Bryan v. United States, 524 U.S. 184, 191, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998)). For this reason, the dissent missteps in relying on
Thurston and McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988), as both cases involved the statutory
phrase “willful violation.” Post, at 1629.
The dissent reaches a contrary conclusion based on the interaction of the words “violation” and “not intentional” in § 1692k(c). Post, at 1629 –
1630. But even in the criminal context, cf. n. 6, supra, reference to a “knowing” or “intentional” “violation” or cognate terms has not
necessarily implied a defense for legal errors. See Bryan v. United States, 524 U.S. 184, 192, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (“ ‘[T]he
knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law’ ”) (quoting Boyce
Motor Lines, Inc. v. United States, 342 U.S. 337, 345, 72 S.Ct. 329, 96 L.Ed. 367 (1952) (Jackson, J., dissenting)); United States v. International
FN7. Indeed, in International Minerals, the Court faced, and evidently rejected, the distinction the dissent would draw today
between the term “ ‘violation’ ” and a reference to “the conduct giving rise to the violation.” Post, at 1629. As noted, in International
Minerals, the Court rejected a mistake-of-law defense for a statute that applied to those who “knowingly violat[e]” certain
regulations. 402 U.S., at 559, 563, 91 S.Ct. 1697. In so doing, however, we expressly acknowledged the contrary view adopted by
one lower court opinion that knowledge of the regulations was necessary. Id., at 562, 91 S.Ct. 1697 (citing St. Johnsbury Trucking Co.
v. United States, 220 F.2d 393, 397 (C.A.1 1955) (Magruder, C.J., concurring)). The dissenting opinion in International Minerals
The dissent posits that the word “intentional,” in the civil context, requires a higher showing of mens rea than “willful” and thus that it should
be easier to avoid liability for intentional, rather than willful, violations. Post, at 1630. Even if the dissent is correct that the phrase “intentional
violation,” standing alone in a civil liability statute, might be read to excuse mistakes of law, the FDCPA juxtaposes the term “not intentional”
“violation” in § 1692k(c) with the more specific language of § 45(m)(1)(A), which refers to “actual knowledge or knowledge fairly implied on
the basis of objective circumstances” that particular conduct was unlawful. The dissent’s reading gives short shrift to that textual distinction.
clerical or factual mistakes. Such procedures are more likely to avoid error than those applicable to legal reasoning, particularly in the context
of a comprehensive and complex federal statute such as the FDCPA that imposes open-ended prohibitions on, inter alia, “false, deceptive,” §
1692e, or “unfair” practices, § 1692f. See Brief for United States as Amicus Curiae 16–18.
Even if the text of § 1692k(c), read in isolation, leaves room for doubt, the context and history of the FDCPA provide further reinforcement for
construing that provision not to shield violations resulting from misinterpretations of the requirements of the Act. See Dada v. Mukasey, 554
FN8. One of Carlisle’s amici suggests the FTC safe harbor would provide a more categorical immunity than § 1692k(c), obviating the
need, e.g., to maintain “procedures reasonably adapted to avoid any such error.” Brief for National Association of Retail Collection
Attorneys as Amicus Curiae 18-19 (NARCA Brief). Even if that is true, we need not conclude that the FTC safe harbor would be
rendered entirely superfluous to reason that the existence of that provision counsels against extending the bona fide error defense
to serve an overlapping function.
FN9. Carlisle raises concerns about whether, in light of contemporary administrative practice, the FTC safe harbor is a realistic way
for debt collectors and their lawyers to seek guidance on the numerous time-sensitive legal issues that arise in litigation. These
practical concerns, to which we return below, do not change our understanding of the statutory text itself or the likely intent of the
enacting Congress.
Any remaining doubt about the proper interpretation of § 1692k(c) is dispelled by evidence of the meaning attached to the language Congress
disagreed with those interpretations when it enacted the FDCPA. Congress copied verbatim the pertinent portions of TILA’s bona fide error
defense into the FDCPA. Compare 15 U.S.C. § 1640(c) (1976 ed.) with § 813(c), 91 Stat. 881. This close textual correspondence supports an
inference that Congress understood the statutory formula it chose for the FDCPA consistent with Federal Court of Appeals interpretations of
TILA.FN11
FN10. See Ives v. W.T. Grant Co., 522 F.2d 749, 757-758 (C.A.2 1975) (concluding that the bona fide error defense in § 1640(c) was
unavailable despite creditor’s reliance, in selecting language for credit contract forms, on a pamphlet issued by the Federal Reserve
Board); Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1167 (C.A.7 1974) (“[Section] 1640(c) offers no shelter from liability for
the defendant, whose error … was judgmental with respect to legal requirements of the Act and not clerical in nature”); Palmer v.
Wilson, 502 F.2d 860, 861 (C.A.9 1974) (similar).
FN11. That only three Courts of Appeals had occasion to address the question by the time the FDCPA was enacted does not render
such an inference unreasonable. Contra, post, at 1625 – 1626 (opinion of SCALIA, J.). Whether or not we would take that view when
such an inference serves as a court’s sole interpretative guide, here our conclusion also relies on common principles of statutory
interpretation, as well as the statute’s text and structure. Moreover, the inference is supported by the fact that TILA and the FDCPA
were enacted as complementary titles of the CCPA, a comprehensive consumer-protection statute. While not necessary to our
corresponding amendment to the FDCPA, Carlisle reasons, is evidence of Congress’ intent to give a more expansive scope to the FDCPA
defense. For several reasons, we decline to give the 1980 TILA amendment such interpretative weight. For one, it is not obvious that the
amendment changed the scope of TILA’s bona fide error defense in a way material to our analysis, given the uniform interpretations of three
Courts of Appeals holding that the TILA defense does not extend to mistakes of law.FN12 (Contrary to the dissent’s suggestion, post, at 1639,
this reading does not render the 1980 amendment surplusage. Congress may simply have intended to codify existing judicial interpretations to
FN12. Although again not necessary to our conclusion, evidence from the legislative record suggests some Members of Congress
understood the amendment to “clarif[y]” the meaning of TILA’s bona fide error defense “to make clear that it applies to mechanical
and computer errors, provided they are not the result of erroneous legal judgments as to the act’s requirements.” S.Rep. No. 96-73,
pp. 7-8 (1979), U.S.Code Cong. & Admin.News 1980, pp. 280, 284-86; see also Lockhart, 153 A.L.R. Fed. 211-212, § 2[a] (1999)
FN13. The Government observes that several federal agencies have construed similar bona fide error defenses in statutes they
administer to exclude errors of law. See Brief for United States as Amicus Curiae 28-30. The Secretary of Housing and Urban
Development, for instance, has promulgated regulations specifying that the bona fide error defense in the Real Estate Settlement
Procedures Act of 1974, 12 U.S.C. § 2607(d)(3), does not apply to “[a]n error of legal judgment,” 24 CFR § 3500.15(b)(1)(ii) (2009).
While administrative interpretations of other statutes do not control our reading of the FDCPA, we find it telling that no agency has
a categorical exemption unsupported by the statutory text. Ibid. We had no occasion in Heintz to address the overall scope of the bona fide
error defense. Our discussion of § 1692e(5) did not depend on the premise that a misinterpretation of the requirements of the Act would fall
under the bona fide error defense. In the mine-run lawsuit, a lawyer is at least as likely to be unsuccessful because of factual deficiencies as
opposed to legal error. Lawyers can, of course, invoke § 1692k(c) for violations resulting from qualifying factual errors.
Carlisle’s remaining arguments do not change our view of § 1692k(c). Carlisle perceives an inconsistency between our reading of the term
regard to the act’s coverage, when such violation is unintentional and occurred despite procedures designed to avoid such violations.” S.Rep.
CHAPTER 45: CONSUMER LAW 743
No. 95-382, p. 5 (1977), U.S.Code Cong. & Admin.News 1977, pp. 1695, 1699; see also post, at 1627 – 1628 (opinion of SCALIA, J.) (discussing
report). But by its own terms, the quoted sentence does not unambiguously support Carlisle’s reading. Even if a bona fide mistake “with
regard to the act’s coverage” could be read in isolation to contemplate a mistake of law, that reading does not exclude mistakes of fact. A
FN14. For instance, an amendment was proposed and rejected during the Senate Banking Committee’s consideration of the FDCPA
that would have required proof that a debt collector’s violation was “knowin[g].” Senator Riegle, one of the Act’s primary sponsors,
opposed the change, explaining that the bill reflected the view that “certain things ought not to happen, period ….[W]hether
somebody does it knowingly, willfully, you know, with a good heart, bad heart, is really quite incidental.” See Senate Committee on
Banking, Housing and Urban Affairs, Markup Session: S. 1130-Debt Collection Legislation 60 (July 26, 1977) (hereinafter Markup); see
also ibid. (“We have left a way for these disputes to be adj[u]dicated if they are brought, where somebody can say, I didn’t know
that, or my computer malfunctioned, something happened, I didn’t intend for the effect to be as it was”). To similar effect, a House
Report on an earlier version of the bill explained the need for new legislation governing use of the mails for debt collection on
grounds that existing statutes “frequently require[d]” a showing of “specific intent[,] which is difficult to prove.” H.R.Rep. No. 95–
131, p. 3 (1977). Elsewhere, to be sure, the legislative record contains statements more supportive of Carlisle’s interpretation. In
particular, a concern was raised in the July 26 markup session that the TILA bona fide error defense had been interpreted “as only
protecting against a mathematical error,” and that the FDCPA defense should “go beyond” TILA to “allow the courts discretion to
dismiss a violation where it was a technical error.” Markup 20. In response, a staffer explained that the FDCPA defense would “apply
to any violation of the act which was unintentional,” and answered affirmatively when the Chairman asked: “So it’s not simply a
mathematical error but any bona fide error without intent?” Id., at 21. Whatever the precise balance of these statements may be,
1636.FN15
FN15. The dissent also cites several other consumer-protection statutes, such as TILA and the Fair Credit Reporting Act, 15 U.S.C. §
1681 et seq., which in its view create “incentives to file lawsuits even where no actual harm has occurred” and are illustrative of
what the dissent perceives to be a “troubling dynamic of allowing certain actors in the system to spin even good-faith, technical
violations of federal law into lucrative litigation.” Post, at 1631. The dissent’s concern is primarily with Congress’ policy choice,
FN16. The Courts of Appeals generally review a District Court’s calculation of an attorney fee award under § 1692k for abuse of
discretion. See, e.g., Carroll v. Wolpoff & Abramson, 53 F.3d 626, 628-629 (C.A.4 1995); Emanuel v. American Credit Exchange, 870
854–855. In Carroll, the court found no abuse of discretion in a District Court’s award of a $500 attorney’s fee, rather than the
lodestar amount, where the lawsuit had recovered only $50 in damages for “at most a technical violation” of the FDCPA. 53 F.3d, at
629–631.
Lower courts have taken different views about when, and whether, § 1692k requires an award of attorney’s fees. Compare
Tolentino v. Friedman, 46 F.3d 645 (C.A.7 1995) (award of fees to a successful plaintiff “mandatory”), and Emanuel, supra, at 808-
809 (same, even where the plaintiff suffered no actual damages), with Graziano, 950 F.2d, at 114, and n. 13 (attorney’s fees may
be denied for plaintiff’s “bad faith conduct”), and Johnson v. Eaton, 80 F.3d 148, 150-152 (C.A.5 1996) (“attorney‘s fees … are only
administrative practice makes us reluctant to place significant weight on § 1692k(e) as a practical remedy for the concerns Carlisle has
identified.
We are unpersuaded by what seems an implicit premise of Carlisle’s arguments: that the bona fide error defense is a debt collector’s sole
recourse to avoid potential liability. We addressed a similar argument in Heintz, in which the petitioner urged that certain of the Act’s
substantive provisions would generate “ ‘anomalies’ ” if the term “debt collector” was read to include litigating lawyers. 514 U.S., at 295, 115
Rules Civ. Proc. 11(b), (c). Model rules of professional conduct adopted by many States impose outer bounds on an attorney’s pursuit of a
client’s interests. See, e.g., ABA Model Rules of Professional Conduct 3.1 (2009) (requiring nonfrivolous basis in law and fact for claims
asserted); 4.1 (truthfulness to third parties). In some circumstances, lawyers may face personal liability for conduct undertaken during
representation of a client. See, e.g., Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 191, 114 S.Ct. 1439,
128 L.Ed.2d 119 (1994) (“Any person or entity, including a lawyer, … who employs a manipulative device or makes a material misstatement (or
646.641 (2007); Wis. Stat. § 427.105 (2007-2008). More generally, a group of 21 States as amici supporting Jerman inform us they are aware
of “no [judicial] decisions interpreting a parallel state bona fide error provision [in a civil regulatory statute] to immunize a defendant’s
mistake of law,” except in a minority of statutes that expressly provide to the contrary.FN18 See Brief for State of New York et al. as Amici
CHAPTER 45: CONSUMER LAW 745
Curiae 11, and n. 6. Neither Carlisle and its amici nor the dissent demonstrate that lawyers have suffered drastic consequences under these
state regimes.
FN17. See Brief for Ohio Creditor’s Attorneys Association et al. as Amici Curiae 4-6, and nn. 7-8 (identifying “134 state consumer
protection and debt collection statutes,” 42 of which expressly exclude legal errors from their defenses for bona fide errors).
FN18. See, e.g., Kan. Stat. Ann. § 16a-5-201(7) (2007) (provision of Kansas Consumer Credit Code providing a defense for a “bona
fide error of law or fact”); Ind.Code § 24-9-5-5 (West 2004) (defense for creditor’s “bona fide error of law or fact” in Indiana Home
Loan Practices Act).
In the dissent’s view, these policy concerns are evidence that “Congress could not have intended” the reading we adopt today. Post, at 1630.
FN19. The dissent also downplays the predicate fact that respondents in this case brought a foreclosure lawsuit against Jerman for a
debt she had already repaid. Neither the lower courts nor this Court have been asked to consider, and thus we express no view
about, whether Carlisle could be subject to liability under the FDCPA for that uncontested error-regardless of how reasonably
Carlisle may have acted after the mistake was pointed out by Jerman’s (privately retained) lawyer.
FN20. Compare Hartman v. Great Senaca Financial Corp., 569 F.3d 606, 614-615 (C.A.6 2009) (suggesting that reasonable
procedures might include “perform[ing] ongoing FDCPA training, procur[ing] the most recent case law, or hav[ing] an individual
responsible for continuing compliance with the FDCPA”), with Johnson v. Riddle, 443 F.3d 723, 730-731 (C.A.10 2006) (suggesting
that researching case law and filing a test case might be sufficient, but remanding for a jury determination of whether the “limited
[legal] analysis” undertaken was sufficient and whether the test case was in fact a “sham”).
FN21. The dissent adds in passing that today’s decision “creates serious concerns … for First Amendment rights.” Post, at 1635
(citing Legal Services Corporation v. Velazquez, 531 U.S. 533, 545, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001)). That claim was neither
raised nor passed upon below, and was mentioned neither in the certiorari papers nor the parties’ merits briefing to this Court. We
decline to express any view on it. See Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).
746 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
the requirements of that statute.
FN22. The FDCPA has been amended some eight times since its enactment in 1977; the most recent amendment addressed a
concern not unrelated to the question we consider today, specifying that a pleading in a civil action is not an “initial communication”