                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                   File Name: 15a0087p.06

                  UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


 PAMELA GILLIE; HAZEL MEADOWS,                    ┐
                           Plaintiffs-Appellants, │
                                                  │
                                                  │           No. 14-3836
      v.                                          │
                                                       >
                                                      │
 LAW OFFICE OF ERIC A. JONES, LLC; ERIC A. JONES;     │
 WILES, BOYLE, BURKHOLDER & BRINGARDNER CO.,          │
 LPA; MARK JEFFREY SHERIFF; SARAH SHERIFF,            │
                            Defendants-Appellees,     │
                                                      │
                                                      │
 OHIO ATTORNEY GENERAL,                               │
                              Intervenor-Appellee.    │
                                                      ┘
                        Appeal from the United States District Court
                       for the Southern District of Ohio at Columbus.
                   No. 2:13-cv-00212—James L. Graham, District Judge.
                                 Argued: March 3, 2015
                             Decided and Filed: May 8, 2015

                 Before: CLAY, GILMAN, and SUTTON, Circuit Judges.
                                _________________

                                       COUNSEL

ARGUED: James E. Nobile, NOBILE & THOMPSON CO., L.P.A., Hilliard, Ohio, for
Appellants. Christopher P. Conomy, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Intervenor-Appellee. Boyd W. Gentry, LAW OFFICE OF BOYD W.
GENTRY, LLC, Beavercreek, Ohio, for Jones Appellees. Michael L. Close, ISAAC WILES
BURKHOLDER & TEETOR, Columbus, Ohio, for Appellees Wiles and Sheriff. ON BRIEF:
James E. Nobile, Eric E. Willison, NOBILE & THOMPSON CO., LPA, Hilliard, Ohio, for
Appellants. Christopher P. Conomy, Sherry M. Phillips, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Intervenor-Appellee. Boyd W. Gentry, LAW OFFICE OF
BOYD W. GENTRY, LLC, Beavercreek, Ohio, for Jones Appellees. Michael L. Close, Dale D.
Cook, ISAAC WILES BURKHOLDER & TEETOR, Columbus, Ohio, for Appellees Wiles and
Sheriff.




                                             1
No. 14-3836                Gillie, et al. v. Law Office of Eric A. Jones, et al.                  Page 2



       CLAY, J., delivered the opinion of the court in which GILMAN, J., joined. SUTTON, J.
(pp. 25–37), delivered a separate dissenting opinion.

                                           _________________

                                                 OPINION
                                           _________________

        CLAY, Circuit Judge. Plaintiffs Pamela Gillie and Hazel Meadows appeal the district
court order entering summary judgment in favor of Defendants Eric A. Jones; the Law Office of
Eric A. Jones, LLC (“Jones Law Office”); Mark J. Sheriff; Sarah Sheriff; and Wiles, Boyle,
Burkholder & Bringardner Co., LPA (“Wiles Law Firm”). Plaintiffs brought this action under
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., alleging that
Defendants utilized a deceptive, misleading, or false representation or means in attempting to
collect consumer debts Plaintiffs owed to entities owned and operated by the State of Ohio. The
Attorney General intervened on behalf of Defendants, asserting that the alleged
misrepresentation—consisting of sending debt-collection notices on the Attorney General’s
letterhead—was not a misrepresentation at all and was, in fact, authorized by the Attorney
General. The district court found that Defendants were exempt from FDCPA coverage as
“officers” of the State of Ohio; and that, in any event, their use of the Attorney General’s
letterhead did not violate the FDCPA.

        For the reasons set forth below, we VACATE the summary judgment in favor of
Defendants and REMAND this case to the district court for further proceedings consistent with
this opinion.

                                             BACKGROUND

        On September 20, 1977, Congress enacted the Fair Debt Collection Practices Act, Pub. L.
95-109, 91 Stat. 874 (codified at 15 U.S.C. 1692 et seq.), as Title VIII of the Consumer Credit
Protection Act. Abusive debt collection practices were at the time, and remain today,1 a “serious


        1
         See Press Release, FTC, New York Attorney General Crack Down on Abusive Debt Collectors (Feb. 26,
2015), available at https://www.ftc.gov/news-events/press-releases/2015/02/ftc-new-york-attorney-general-crack-
down-abusive-debt-collectors; Rebecca Thiess & Ellen Taverna, Cleaning Up Debt Collection: New rules are
No. 14-3836                    Gillie, et al. v. Law Office of Eric A. Jones, et al.                           Page 3

national problem” that “touches the lives of many Americans.” S. Rep. No. 95-382, at 2 (1977).2
The FDCPA specifically sought to target all “third party” and “independent debt collectors,”
whom the Senate cited as “the prime source of egregious collection practices.” Id. The Senate’s
contention was that independent debt collectors have little incentive to act fairly, given that they
“are likely to have no future contact with the consumer and often are unconcerned with the
consumer’s opinion of them.” Id. at 2. Moreover, the independent collector’s commissions-
based incentive to collect as many debts as possible is problematic, because it increases the
likelihood of abusive collection practices. Id. The same concerns, however, are not present for
“in house collectors,” who were to be excluded from the FDCPA’s broad definition of the term
“debt collector.” Id. at 3 (internal quotation marks omitted). “Government officials, such as
marshals and sheriffs,” were offered by the Senate as the lone example of “in house” collectors
working in the public sector. Id. at 3. The statutory language ultimately adopted for this
exemption excluded from the definition of debt collector, “any officer or employee of . . . any
State to the extent that collecting or attempting to collect any debt is in the performance of his
official duties.” 15 U.S.C. § 1692a(6)(C). This language remains the only exemption for state
actors. The term “debt collector,” from which these state actors are exempted, was ultimately
defined as “any person . . . who regularly collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due another.” § 1692a(6). The overwhelming
breadth of this provision is fitting, given Congress’s intent to extinguish all abusive debt
collection practices.           One of these practices consisted of independent debt collectors
“misrepresenting” that they were, in fact, “government official[s].” S. Rep. No. 95-382, at 8
(1977). This concern, along with the issue of who would qualify for the state sector exemption,
are among the issues we address in this opinion.




necessary to end abusive debt collection practices, U.S. News (Mar. 24, 2014, 10:45 a.m. EDT),
http://www.usnews.com/opinion/economic-intelligence/2014/03/24/the-consumer-protection-bureau-should-end-
abusive-debt-collection.
        2
            This is the final committee report that was presented with the legislation before its enactment.
No. 14-3836                  Gillie, et al. v. Law Office of Eric A. Jones, et al.               Page 4

       Special Counsel and the Ohio Attorney General

       Title I, Chapter 131, of the Ohio Revised Code governs the collection of debts3 owed to
the State of Ohio. These debts include unpaid taxes, overdue fees on governmental services, and
administrative fines, as well as consumer debts arising from transactions with various State-
owned entities (e.g., overdue tuition from a State university or unpaid medical bills from a State
hospital). This case is about consumer debts. Debts that remain uncollected by the State entity
to whom the debt is owed are eventually “certified” to the Office of the Ohio Attorney General
(“OAG”). Ohio Rev. Code § 131.02(A). The Attorney General is thereafter responsible for
collecting the debt or disposing of it by other means (e.g., securing a judgment, selling or
transferring the claim on the debt, or causing the debt to be canceled). §§ 131.02(C), (F).

       The Attorney General is not personally required to collect the debts certified to the OAG.
Section 109.08 of the Ohio Revised Code provides that the Attorney General may enlist “special
counsel” to collect debts on the Attorney General’s behalf. The statute reads in full:

       The attorney general may appoint special counsel to represent the state in
       connection with all claims of whatsoever nature which are certified to the attorney
       general for collection under any law or which the attorney general is authorized to
       collect.
       Such special counsel shall be paid for their services from funds collected by them
       in an amount approved by the attorney general.
       The attorney general shall provide to the special counsel appointed to represent
       the state in connection with claims arising out of [specific tax debts] the official
       letterhead stationery of the attorney general. The special counsel shall use the
       letterhead stationery, but only in connection with the collection of such claims
       arising out of those taxes.

Ohio Rev. Code § 109.08.

       Special counsel receive their appointment by submitting a successful response to a
Request for Qualifications. Once selected, they enter into a “retention agreement” with the
Attorney General that defines the scope of their engagement.

       The retention agreement contains a few provisions that are germane to this dispute. First,
actions taken by special counsel are only authorized by and through the retention agreement and
       3
           These debts are generally referred to as “claims” throughout the Ohio Revised Code.
No. 14-3836                   Gillie, et al. v. Law Office of Eric A. Jones, et al.                       Page 5

only for its duration. (R. 48-8, 2013 Retention Agreement, PageID # 634 (“No services rendered
by Special Counsel after the date of Termination shall be authorized or payable without an
additional agreement from the Attorney General.”)). Second, “Special Counsel shall be engaged
by the Attorney General solely on an independent contractor basis.” (Id. at PageID # 635 (“No
Special Counsel . . . shall be regarded as in the employment, or as an employee of, the Attorney
General or the State Clients.”)). Third, “the appointment of Special Counsel is personal in nature
and does not extend to any law firm that the Special Counsel is associated with.” (Id. at PageID
# 634).      Fourth, claims are assigned to special counsel; however, all collections must be
forwarded and endorsed to the Attorney General before the special counsel is entitled to receive
a percentage of the collections-based fee. Fifth, the retention agreement requires special counsel
to “comply with the same standards of behavior as set forth in . . . the Fair Debt Collection
Practices Act.” (Id. at PageID # 646). In addition to these provisions, though not in the
agreement, special counsel have been orally directed by the Attorney General to utilize OAG
letterhead in connection with all collections (including consumer debts, even though it is
contrary to Ohio’s code4).

         On April 13, 2012, the OAG announced a “Request for Qualifications for Special
Counsel of Fiscal Year 2013” (“RFQ”). (R. 48-11, Jones Response to RFQ, PageID # 658). The
RFQ solicited responses from qualified attorneys who wished to enter into a contract to perform
debt collection on behalf of the state. The relationship would be “defined by contract” and the
“appointment” would “only become effective upon execution of [the] Retention Agreement.”
(Id. at PageID # 661, 663).

         Defendant Mark J. Sheriff submitted a response to the RFQ on May 1, 2012. Sheriff, a
partner at Wiles Law Firm, had previously been appointed as a special counsel. Sarah Sheriff
also worked for Defendant Wiles Law Firm at the time under the direction of Mark Sheriff.
Defendant Eric A. Jones submitted a response to the RFQ on May 2, 2012. Jones, who owned
and operated Defendant Jones Law Office, had likewise served as a special counsel in previous
years. Sheriff and Jones became special counsel to the Attorney General for fiscal year 2013


         4
          “The special counsel shall use the letterhead stationery, but only in connection with the collection
of such claims arising out of those taxes.” Ohio Rev. Code § 109.08 (emphasis added).
No. 14-3836             Gillie, et al. v. Law Office of Eric A. Jones, et al.          Page 6

upon the execution of the retention agreements they received, following their selection based on
their respective responses to the RFQ.

       On May 24, 2012, Plaintiff Pamela Gillie was engaged in bankruptcy proceedings when
she received a debt collection letter from Jones. The collection letter was written on OAG
letterhead, which included both an image of the Great Seal of the State of Ohio and the Attorney
General’s name—Mike DeWine—in large font at the top of the page. The letter stated: “Dear
Sir/Madam, You have chosen to ignore repeated attempts to resolving the referenced . . . medical
claim. If you cannot make immediate full payment call DENISE HALL at Eric A. Jones, L.L.C.
. . . at my office to make arrangements to pay this debt.” (R. 48-2, Jones Collection Ltr., PageID
# 611).    The next paragraph of the letter continued in bold capital font, “THIS IS A
COMMUNICATION FROM A DEBT COLLECTOR.” (Id.) The signature block read “Eric A.
Jones Outside Counsel for the Attorney General’s Office,” and the return payment stub provided
that payments should be made to the Law Office of Eric A. Jones, L.L.C. (Id. at PageID # 611–
12). The notice did not specifically identify the original creditor or the date on which the debt
was incurred. Gillie thought that it might have been related to her pregnancy. She believed that
the letter was from the Attorney General but the inclusion of the other names confused her.

       On July 20, 2012, Plaintiff Hazel Meadows received a debt collection letter from Sarah
Sheriff with Wiles Law Firm. The letter used OAG letterhead for the “Collections Enforcement
Section” and likewise included an image of Ohio’s Great Seal. (R. 48-4, Wiles Collection Ltr.,
PageID # 614). The body of the letter read, “Sir/Madam: Per your request, this is a letter with
the current balance owed for your University of Akron loan that has been placed with the Ohio
Attorney General. Feel free to contact me . . . should you have any further questions.” (Id.) It
was signed by Sarah Sheriff and the signature block noted her association with Wiles Law Firm
and indicated that she was “Special Counsel to the Attorney General.” (Id.) It was also noted in
the letter that the sender was a debt collector. Meadows was confused by the letter and did not
recall “ever asking anyone for any information” about her debts. (R. 48-3, Meadows Affidavit,
PageID # 612). Sarah Sheriff averred, however, that the letter was drafted in response to a phone
call and that Meadows could not have been confused because she had previously made payment
on the same debt after entering into an agreed judgment and payment plan on March 6, 2008.
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.           Page 7

       Plaintiffs filed this suit on March 5, 2013, alleging that Defendants violated various
provisions of the FDCPA by utilizing the OAG letterhead. The Attorney General thereafter
successfully moved to intervene as Defendant and Counterclaimant. On September 6, 2013, the
district court stayed discovery and ordered briefing to determine whether the issues of liability
and damages should be bifurcated. Bifurcation was ordered on December 4, 2013, to delay a
costly class-certification process until the court could decide the two legal issues presented:
whether “special counsel” are debt collectors under the FDCPA and whether the use of letterhead
from the Office of the Attorney General by special counsel violates the FDCPA. The district
court also continued the stay of discovery and ordered the filing of dispositive motions within
sixty days.

       Plaintiffs and Defendants filed opposing motions for summary judgment and made
appropriate responses. The Attorney General also moved for a judgment on the pleadings, and
Plaintiffs moved to dismiss the Attorney General’s counter-complaint for failure to state a claim.
The district court granted Defendants’ motions for summary judgment, denied the Attorney
General’s motion for judgment on the pleadings, denied Plaintiffs’ motion for summary
judgment, and denied as moot Plaintiffs’ motion to dismiss for failure to state a claim. The court
first held that special counsel are not “debt collectors” within the meaning of the FDCPA
because they are officers of the State of Ohio, and state officers are explicitly exempt from
FDCPA coverage. The court then went on to determine that, even if special counsel did fall
within the definition of a “debt collector,” use of OAG letterhead was not a “false, deceptive or
misleading” communication in violation of 15 U.S.C. § 1692e. This appeal followed.

                                          DISCUSSION

                                       Standard of Review

       We review de novo an appeal from an order granting summary judgment. Combs v. Int’l
Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004). Summary judgment should be granted when there
exists no genuine dispute of material fact and, in light of the facts presented, the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The court may look to “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits” when ruling on the motion. Id. The facts must be viewed in the light most favorable
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.           Page 8

to the non-moving party and all reasonable inferences shall be afforded to those facts. Combs,
354 F.3d at 576–77. But, a mere “scintilla of evidence” that militates against the clear weight of
the evidence in the record does not create a genuine issue of fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986).

                                              Analysis

I.     “Debt Collectors” and the “Officer or Employee” Exemption

       The FDCPA was enacted to prevent “abusive debt collection practices” and ensure that
those debt collectors who fairly engage in the practice of debt collecting “are not competitively
disadvantaged” by their peers’ malfeasance. 15 U.S.C. § 1692. A “debt collector” is “any
person . . . who regularly collects or attempts to collect . . . debts owed or . . . due another” for
profit. § 1692a(6). Any individual qualifying as an “officer or employee” of a state is excluded
from this definition if attempting to collect debts “in the performance of his official duties.”
§ 1692a(6)(C).

       The issue before us is controlled by the scope of the term “officer.” Specifically, we
must determine whether private attorneys “appointed” as “special counsel” to the Ohio Attorney
General, but operating as independent contractors, are officers of a state, within the meaning of
the FDCPA. We think not. The use of the word “appoint” in reference to “hiring” independent
contractors is not decisive. Special counsel, in truth, are indistinguishable from the myriad of
independent contractors who enter into for-profit agreements with government agencies or actors
to help fulfill the duties of some government office. The FDCA is a broad remedial statute, Frey
v. Gangwish, 970 F.2d 1516, 1520 (1992), with limited, clearly defined exceptions. We find no
justification for diluting its protection by broadly interpreting the term “officer or employee” to
include independent contractors.

       A.        The Dictionary Act

       When a statutory term is left undefined by Congress, we first turn to the Dictionary Act,
which offers definitions for words that are commonly used throughout Acts of Congress.
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2768 (2014). “Officer” is one of those
words; and we must adhere to the Dictionary Act definition, “unless the context indicates
No. 14-3836                 Gillie, et al. v. Law Office of Eric A. Jones, et al.                    Page 9

otherwise.” 1 U.S.C. § 1. Both sides insist that our judgment should be guided by extra-
statutory considerations: Plaintiffs posit that we infer legislative intent as to the scope of the
exclusion by looking to principles of sovereign immunity;5 whereas the Attorney General
stresses the importance of federalism and a state’s ability to determine the organization of its
own government. “[T]he qualification ‘unless the context indicates otherwise’ has a real job to
do, in excusing the court from forcing a square peg into a round hole.” Rowland v. Cal. Men’s
Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 200 (1993). But we have not been stuck
with a square peg. The Dictionary Act provides a specific definition for the present occasion that
comports with our common understanding of the word “officer,” and leads to a result that is
consistent with the purpose of the FDCPA.

        We review de novo the interpretation of statutory language. RL BB Acquisition, LLC v.
Bridgemill Commons Dev. Grp., LLC, 754 F.3d 380, 384 (6th Cir. 2014). When the language of
a statute is clear we must apply its plain meaning. Ashland Hosp. Corp. v. Serv. Emps. Int’l
Union, Dist. 1999, 708 F.3d 737, 723 (6th Cir. 2013).

        An “officer” “includes any person authorized by law to perform the duties of the office.”
1 U.S.C. § 1. Defendants contend that “special counsel” easily fall within this definition by
operation of the following Ohio statutes: § 109.08, authorizing the Attorney General to appoint
special counsel to collect debts; and § 131.02, assigning the Attorney General responsibility over
the collection of debts owed to the State. The difficulty with Defendants’ arguments is that these
statutes do not authorize special counsel to fulfill the duties of any office. Our focus is drawn to
the following words: “authorized by law” and “the duties of the office.” We consider each
phrase in turn.




        5
           Debt collection companies that win government contracts pursuant to a statutory authorization are not
entitled to sovereign immunity. Rosario v. Am. Corrective Counseling Servs., 506 F.3d 1039 (11th Cir. 2007); Del
Campo v. Kennedy, 517 F.3d 1070 (9th Cir. 2008). Special counsel, likewise, are not entitled to sovereign immunity
because of their independent-contractor status and indemnification of the OAG. See Brotherton v. Cleveland,
173 F.3d 552, 560 (6th Cir. 1999) (listing four factors for the court to consider; indemnification being the most
salient); cf. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 51 n.21 (“It would indeed heighten a mystery of
legal evolution were we to spread an Eleventh Amendment cover over an agency that consumes no state revenues
but contributes to the State’s wealth.” (internal quotation marks omitted)).
No. 14-3836                  Gillie, et al. v. Law Office of Eric A. Jones, et al.                     Page 10

                  1.       Authorized by Law

         Although it is true that special counsel are authorized to collect certain debts assigned to
them on behalf of the Attorney General, they are not authorized to do so by law. The Attorney
General contends that § 109.08—bearing the title “special counsel to collect debts”—provides
such an authorization. But this argument is specious. Our analysis must be guided by parsing
the meat and bones of the statute, not simply by surveying its skin. Section 109.08, which is
broken into four sentences, primarily governs the conduct of the Attorney General, and not that
of special counsel. First, the statute authorizes the Attorney General to employ or contract with
individuals selected by the Attorney General to act as special counsel for the purpose of
collecting debts certified to the OAG. Second, it authorizes the Attorney General to set the pay
of special counsel, which must be allocated only from funds that special counsel themselves have
collected. Third, § 109.08 requires the Attorney General to provide OAG letterhead to any
special counsel assigned to collect specific tax debts. The fourth sentence, “The special counsel
shall use the letterhead stationery, but only in connection with the collection of such claims
arising out of those taxes,” is the only provision of the statute that grants any authority to special
counsel. Ohio Rev. Code § 109.08 (emphasis added). This provision not only fails to authorize
any collections activity, it restricts the manner in which collections may occur should any
collections actually be authorized or assigned by the Attorney General.6 Section 109.08 simply
establishes the framework under which the Attorney General, within his or her discretion, may
delegate the collection of debts to a third-party debt collector. Authorization to actually act as an
officer of a state requires more. Such an authorization entails the actual capability to act, not
merely the prospect of a future delegation. See Authorize and Authority, BLACK’S LAW
DICTIONARY (10th Ed. 2014) [hereinafter “BLACK’S”] (to authorize is “to give legal
authority,” which means “the power delegated by a principal to an agent”).

         We find no difficulty in determining the source of special counsel’s authority. The RFQ
emphasized that an appointment as special counsel would “only become effective upon
execution of a Retention Agreement,” and that any relationship with the OAG would exclusively

         6
         The Attorney General’s insistence that special counsel violate this restriction is the basis for this action.
Taxes owed to a state are not debts under the FDCPA. The legislature’s failure to specifically endorse the use of
OAG letterhead by special counsel in the collection of consumer debts supports an inference that the state
understood special counsel to be independent debt collectors and not entitled to use government letterhead.
No. 14-3836                  Gillie, et al. v. Law Office of Eric A. Jones, et al.                    Page 11

be “defined by contract.” (R. 48-11, Jones Response to RFQ, PageID # 661, 663). The retention
agreements themselves reiterated that “[s]pecial counsel shall be engaged by the Attorney
General solely on an independent contractor basis.” (R. 48-8, 2013 Retention Agreement,
PageID # 635). Absent a contract and work being specifically assigned thereunder, “special
counsel” is an empty title. Finding no authority derived from this title, we cannot say that
special counsel are “authorized by law” to perform any duties. They are instead authorized only
by contract with the OAG.

        The Attorney General suggests that “a fair reading of ‘authorized by law’ means simply
that it was lawful for the Attorney General to direct that [s]pecial [c]ounsel perform duties of the
Attorney General’s office.” This interpretation is obviously flawed. The Attorney General has
numerous duties, many of which are lawfully delegated by necessity to his staff at the OAG, not
all of whom are officers. A narrower reading of the Attorney General’s interpretation could be
that only those delegations that are specifically contemplated by statute qualify as being
authorized by law. However, as explained above, only an actual delegation (not one that is
merely contemplated) falls within the ordinary meaning of the word “authorized.” We are left
only with the Attorney General’s contracting authority to support the Attorney General’s
position. But the phrase “authorized by law” cannot be construed so as to include all duties and
responsibilities entrusted by contract to an independent contractor. To hold otherwise would
invite a preposterous result—bestowing officer status under the Dictionary Act on every
independent contractor working on behalf of a state.7 This cannot be the case. “Interpretations
of a statute which would produce absurd results are to be avoided if alternative interpretations
consistent with the legislative purpose are available.” Guzman v. U.S. Dep’t of Homeland Sec.,
679 F.3d 425, 432 (6th Cir. 2012) (internal quotation marks omitted).




        7
          In Ohio, for example, the Facilities Construction Commission and its Executive Director are tasked with
“general supervision over the construction of any projects, improvements, or public buildings constructed for a state
agency.” Ohio Rev. Code § 123.21(2). The Executive Director, like the Attorney General, is authorized by statute
to engage independent contractors to undertake functions specifically prescribed by statute to his or her office. §
123.21(3). Under the Attorney General’s interpretation of the Dictionary Act, every independent contractor working
on a construction project for a state agency in the State of Ohio would be an officer of the state.
No. 14-3836                    Gillie, et al. v. Law Office of Eric A. Jones, et al.                     Page 12

                   2.        “The Duties” of the Office

        Turning from “authorized by law,” we find another reason to disqualify special counsel
as officers under the plain meaning of the Dictionary Act. Mainly, that special counsel do not
perform “the duties” of any office. The use of the definite article preceding both “duties” and
“office” in the Dictionary Act’s definition restricts our interpretation of that language. “[T]he
word ‘the’ frequently (but not always) indicates ‘a particular thing.’” NLRB v. Noel Canning,
573 U.S. ___, 134 S. Ct. 2550, 2561 (2014).                     It can also be used to refer to something
generically, id., as may be the case with “the office.” By way of example, officers include any
person authorized by law to perform the duties of the office in question—which could be the
Office of Attorney General or some other public office. However, the word “the” that precedes
“duties” has only one sensible construction—that it refers to a specific thing—all duties
associated with the office in question. It would be unreasonable to construe “the,” in that
instance, to mean “a,” “some” or “any.” See, e.g., Sandifer v. U.S. Steel Corp., 134 S. Ct. 870,
876 (2014) (“It is a fundamental canon of statutory construction that, unless otherwise defined,
words will be interpreted as taking their ordinary, contemporary, common meaning.” (internal
quotation marks omitted)); Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034, 2042 (2012) (“And
it is normal usage that, in the absence of contrary indication, governs our interpretation of
texts.”).

        Special counsel qualify as officers only if they are entitled to perform all duties of some
public office.8 But special counsel are not so entitled. Special counsel cannot perform all duties
of the Attorney General’s office; nor are they associated with any other public office.9 A “public
office” is “[a] position whose occupant has legal authority to exercise government’s sovereign
powers for a fixed period.” Public Office, BLACK’S (emphasis added). The authority to collect
consumer debts is not a sovereign power; instead, it is a right that can be exercised by any
creditor. See Sovereign Power, BLACK’S (“The power to make and enforce laws.”); Sovereign
Right, BLACK’S (“A unique right possessed by a state or its agencies that enables it to carry out


        8
        This interpretation is also consistent with the common understanding of the term “officer.” See Officer,
BLACK’S (“In public affairs, the term refers esp. to a person holding public office under a national, state, or local
government and authorized by that government to exercise some specific function.”).
        9
            The Attorney General has conceded that there is no legislatively designated office of special counsel.
No. 14-3836               Gillie, et al. v. Law Office of Eric A. Jones, et al.           Page 13

its official functions for the public benefit, as distinguished from certain proprietary rights that it
may possess like any other private person.”). Without a legislatively designated office or the
authority to exercise sovereign powers, special counsel are not officers of the State.

        B.      Officers, Appointment, and Independent Contractors, Generally

        Even if the Dictionary Act were inapplicable to this case, our conclusion would be the
same. The Attorney General has attributed special weight to the word “appoint,” which it is not
due. For reasons known only to the legislature, all of the Attorney General’s employees are
appointed. See Ohio Rev. Code § 109.05 (“The attorney general may appoint such employees as
are necessary.” (emphasis added)). Once we remove this guise as the basis for special counsel’s
authority, the resolution of this issue is readily apparent. The salient distinction between special
counsel and the Attorney General’s employees, who are also appointed, is special counsel’s
independent-contractor status.      The overwhelming weight of authority sensibly finds that
independent contractors are not exempt from FDCPA coverage as officers or employees,
pursuant to 15 U.S.C. § 1692a(6)(C). See, e.g., Brannan v. United Student Aid Funds, Inc.,
94 F.3d 1260, 1263 (9th Cir. 1996) (“This exemption applies only to an individual government
official or employee who collects debts as part of his government employment responsibilities.
[The contractor] is a private nonprofit organization with a government contract . . . .”); Pollice v.
Nat’l Tax Funding, L.P., 225 F.3d 379, 406 (3d Cir. 2000) (“The exemption expressly is limited
to ‘any officer or employee of the United States or any State’ . . . . [And, it] does not extend to
those who are merely in a contractual relationship with the government.”); see also Piper v.
Portnoff Law Assocs., 274 F. Supp. 2d 681, 688 (E.D. Pa. 2003) (“Because the defendants are in
a contractual relationship with the City . . . , the municipal officers’ exemption does not extend to
them.”); Gradisher v. Check Enforcement Unit, Inc., 133 F. Supp. 2d 988, 992 (W.D. Mich.
2001) (“This Court agrees with Brannan and Pollice that an independent contractor is not
entitled to an exemption to the FDCPA pursuant to 15 U.S.C. § 1692a(6)(C).”); Knight v.
Schulman, 102 F. Supp. 2d 867, 876 (S.D. Ohio 1999) (“Since the Defendant was an attorney in
private practice, rather than an officer or employee of the United States, he is not excluded from
the definition of debt collector, regardless of whether the Defendant was acting as an agent of the
United States at the time the letters . . . were written.”).
No. 14-3836                    Gillie, et al. v. Law Office of Eric A. Jones, et al.                        Page 14

         Quite simply, “[t]he legal question raised . . . is whether someone who has been
appointed as special counsel to the attorney general is properly characterized as a state officer or
employee or as an independent contractor.” Keefer v. Wiles, Boyle, Burkholder & Bringardner,
Co., LPA, Nos. 2:07-CV-1205, 2:07-CV-1288, 2008 WL 4404295, at *3 (S.D. Ohio Sept. 23,
2008) (emphasis added). The Attorney General has legally distanced himself and the OAG from
special counsel so that the State of Ohio does not suffer the negative consequences of special
counsel’s actions. Now, he wishes to see that special counsel get treated as if they are officers of
the State of Ohio, directly under his supervision. The Attorney General cannot have it both
ways; special counsel are not officers or employees simply because they are independent
contractors. No court has held otherwise.10

         C.        Federalism and Policy Concerns

         The Attorney General seeks to frame this case as a matter of federalism, fundamentally
insisting that Congress should have explicitly legislated that an independent contractor is
incapable of being an “officer or employee” of the state. For legal authority, the Attorney
General points to Gregory v. Ashcroft and the “plain statement” rule. See 501 U.S. 452, 460
(1991) (“If Congress intends to alter the usual constitutional balance between the States and the
Federal Government, it must make its intention to do so unmistakably clear in the language of
the statute.” (internal quotation marks omitted)). This case is about third-party debt collectors.
Ohio is not being regulated; nor is the structure of its government being challenged.

         Contrary to Defendants’ assertions, special counsel also fail to qualify as officers of the
State under Ohio’s own laws. Section 109.36(A)(1) of the Ohio Revised Code defines an


         10
             Defendants point to a few cases for support, but they are inapposite. In Bell v. Newnham, No. L-89-373,
1990 WL 131972, at *2 (Ohio Ct. App. Sept. 14, 1990), the Ohio Court of Appeals held that special counsel was
“acting . . . under color of [state] law” for the purposes of a § 1983 suit. The court relied on the fact that the plaintiff
had sued special counsel “in his capacity as a state officer or employee,” but the court never analyzed the validity of
this assumption. Whether or not special counsel were “officers or employees” is insignificant in the § 1983 context,
where it is widely accepted that independent contractors may act under color of law. See Lugar v. Edmondson Oil
Co., 457 U.S. 922, 941 (1982) (“To act under color of law does not require that the accused be an officer of the
State.” (internal quotation marks omitted)). Similarly in Berridge v. Heiser, 993 F. Supp. 1136, 1143 (S.D. Ohio
1997), the court found that special counsel could be sued under § 1983 if “acting under color of state law.” Finally,
in Heredia v. Green, 667 F.2d 392 (3d Cir. 1981), the Third Circuit found that the defendant was a state officer
exempt from FDCPA coverage because he had been appointed a Landlord and Tenant Officer of the court. Like
special counsel, the defendant was charged with serving debt notices. Unlike special counsel, the Landlord and
Tenant Officer position was prescribed duties by statute and the holder of the position was not in an independent
contractual relationship for the purpose of collecting debts. See id. at n.3.
No. 14-3836                     Gillie, et al. v. Law Office of Eric A. Jones, et al.                  Page 15

“[o]fficer or employee” as “[a] person who . . . is serving in an elected or appointed office or
position with the state or is employed by the state.” Defendants conclude that special counsel
must be officers because they are “appointed” pursuant to § 109.08 to a “position with the state.”
Again, the use of the word “appoint” is overstated. The Supreme Court of Ohio itself has
recognized that courts should not “read so much into the . . . word ‘appointment’ because . . . the
more significant words in [the statutory definition of ‘officer or employee’] are ‘office or
position with the state.’” Engel v. Univ. of Toledo Coll. of Med., 130 Ohio St. 3d 263, 267 ¶ 18
(2011).11 The court elaborated by noting that a “public officer . . . must possess some sovereign
functions of government to be exercised by him for the benefit of the public either of an
executive, legislative, or judicial character.” Id. at ¶ 19 (internal quotation marks omitted)
(emphasis added); accord Solowitch v. Bennett, 456 N.E.2d 562, 566 (Ohio Ct. App. 1982)
(“The chief and most decisive characteristic of a public office is determined by the quality of the
duties with which the appointee is invested . . . . If official duties are prescribed by statute, and
their performance involves the exercise of continuing independent, political or governmental
functions, then the position is a public office.” (internal quotation marks omitted)). Special
counsel exercise neither “sovereign functions” nor “independent, political or governmental
functions.”        Nor are they prescribed by statute any “powers and duties,” as is common
throughout the code.12

         Another fair reading of Ohio’s “officer or employee” statute is that only individuals
“serving in an elected or appointed office” qualify as an officer, whereas those “serving in an . . .
appointed . . . position with the state” are merely employees.13 Special counsel necessarily fall
into a third category, independent contractors, because it appears that the legislature failed to

         11
            Defendants attempt to distinguish this case because the use of the word “appointment” appeared in a
letter as opposed to a statute (like § 109.08); however, they fail to recognize that the court specifically identified
which words were most important in defining an officer of the state, pursuant to § 109.36(A)(1)—“office or position
with the state.”
         12
             See, e.g., Ohio Rev. Code § 109 (Attorney General’s powers and duties); § 109.04 (“Powers and duties of
first assistant attorney general”); § 109.75 (“Powers and duties of peace officer training commission executive
director”); § 111.04 (“Duties of assistant secretary [of State]”); § 121.081 (“Department of insurance – powers and
duties”); § 121.083 (“Superintendent of industrial compliance – powers and duties”); § 121.33 (“Office of Hispanic-
Latino affairs – powers and duties”); § 121.42 (“Inspector general – powers and duties”); § 1155.011
(Superintendent and deputy superintendent for savings and loan associations and savings banks – powers and
duties”); § 118.08 (“Powers, duties, and functions of financial planning and supervision commission”); § 120.04
(“State public defender – powers and duties”); § 120.15 (“County public defender – powers and duties”).
         13
              Special counsel has explicitly disclaimed the employee designation through contract.
No. 14-3836                   Gillie, et al. v. Law Office of Eric A. Jones, et al.                      Page 16

distinguish between “officers” and “employees” based on the presumption that all officers are, in
fact, employees of the State of Ohio. This interpretation is consistent with another provision of
the code, which presumes that every officer has a State-entity employer. See § 109.361 (“All
expenses . . . in the defense of an officer or employee shall be paid by the employer that
employed the officer or employee at the time the alleged act or omission occurred.”). However,
the State is not special counsel’s (nor any independent contractor’s) employer.14 See Employer,
BLACK’S (“[O]ne who controls and directs a worker under an express or implied contract of
hire and who pays the workers’ salary or wages.” (emphasis added)); Independent Contractor,
BLACK’S (“Someone who is entrusted to undertake a specific project but who is left free to do
the assigned work and to choose the method for accomplishing it . . . . Unlike an employee, an
independent contractor who commits a wrong while carrying out the work usu[ally] does not
create liability for the one who did the hiring.” (emphasis added)).

         If Special Counsel Defendants truly believed in their status as officers of the State of
Ohio, then it begs the question why they are not now represented by the Attorney General. See
Ohio Rev. Code § 109.361 (“Upon the receipt of a written request by an officer or employee, the
attorney general . . . shall represent and defend the officer or employee in any civil action
instituted against the officer or employee.”). The answer is simple. Special counsel are not
officers because they are independent contractors and not the holders of a public office. See
Advisory Opinion No. 75-016, Ohio Ethics Commission (August 19, 1975).15, 16

         If an actual officer or employee of the State of Ohio were collecting these debts, he or she
would be exempt from FDCPA coverage. To the extent that this natural interpretation of an

         14
           The state could have said “paid by the agency, office, or department that employed,” or used any other
language that did not suggest a specific relationship between the officers and the entity that hired them. We must
presume that the Ohio legislature used the words it chose with a full understanding of their common meaning.
Beverage Distribs., Inc. v. Miller Brewing Co., 690 F.3d 788, 794 (6th Cir. 2012).
         15
            The Ohio Ethics Commission—an independent body responsible for ethics advice and enforcement with
respect to the executive branch—was specifically asked to address whether special counsel were officers of the State
of Ohio pursuant to § 109.36 to advise attorneys serving as special counsel if they were subject to a state prohibition
against officers receiving outside income. The Committee noted that “[s]pecial counsel of the attorney general . . .
are not appointed to an office or an instrumentality of the state . . . but are rather engaged as an agent of an elected
officer of the state.” Advisory Op. No. 75-016. Nor were they employed by the state because they “are independent
contractors.” Id.
         16
            Defendants also point to § 124.11(A) (Unclassified service – classified service), which lists special
counsel alongside of assistant attorneys general as unclassified civil servants. This categorization is meaningless, as
it also includes teachers, library staff, nurses, and volunteer firefighters, among many others who are certainly not
officers.
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.            Page 17

“officer or employee,” which excludes independent contractors, restricts a state’s ability to
organize its government, Congress did make a plain statement about a state’s right to seek relief
from FDCPA coverage: the Bureau of Consumer Financial Protection is required to exempt all
“debt collection practices within any State” that are subject to “substantially similar”
requirements as under the FDCPA. See 15 U.S.C. § 1692o. If special counsel were similarly
situated to officers or employees of the State of Ohio, the Ohio Attorney General could have
sought an exemption under this provision of the statute. See 12 C.F.R. § 1006.1 (“This subpart
establishes procedures and criteria whereby states may apply to the Bureau for exemption of a
class of debt collection practices with the applying state from the provisions of the [FDCPA].”)

       Notably, Congress did create an explicit exemption for certain private entities. See
15 U.S.C. § 1692p. The presence of this provision militates against the notion that Congress also
intended to exempt independent contractors, generally, from FDCPA coverage without saying
so. See Corley v. United States, 556 U.S. 303, 314 (2009) (“[A] statute should be construed so
that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or
insignificant.” (internal quotation marks omitted)). Congress did not include an exemption for
independent contractors similarly situated to special counsel. We will not do so now.

       Special counsel are, simply, as their contract with the Attorney General states,
independent contractors. Independent contractors are not officers or employees under the plain
language of the Dictionary Act. Nor are they officers of the State of Ohio simply because
§ 109.08 uses the word “appoint.” Special counsel do not hold a public office; nor do they wield
any sovereign power. The FDCPA specifically sought to regulate independent debt collectors.
Like any other independent debt collector, special counsel are paid only when they actually
collect a debt. Congress explicitly referenced this incentive as contributing to the problems
attendant with independent debt collectors. See S. Rep. No. 95-382, at 2 (1977) (“Collection
agencies generally operate on . . . commission, and this has too often created the incentive to
collect by any means.”). By finding that special counsel are subject to the FDCPA prohibitions,
we are merely holding that Congress’ intended target for regulation—independent debt
collectors—are actually subject to the regulation.
No. 14-3836                 Gillie, et al. v. Law Office of Eric A. Jones, et al.                   Page 18

II.     False, Deceptive, or Misleading Acts and § 1692e Liability

        Section 1692e states, “A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. This
provision, along with its subsections, provides an “extraordinarily broad” base of protection to
consumers, Frey v. Gangwish, 970 F.2d 1516, 1521 (6th Cir. 1992), and is intended to prevent
all abusive debt collection practices by independent debt collectors that tend to deceive or
mislead a consumer. See 15 U.S.C. § 1692 (“It is the purpose of [the FDCPA] to eliminate
abusive debt collection practices . . . .” (emphasis added)). An inherent danger posed by
harassing or deceptive collection practices is that consumers will be pressed into making
uninformed decisions about debt prioritization, which affects their daily lives. See 15 U.S.C.
§ 1692 (“Abusive debt collection practices contribute to the number of personal bankruptcies, to
marital instability, to the loss of jobs . . . .”). When the sender of a letter misrepresents his or her
authority, the least sophisticated consumer might reasonably be intimidated, confused, and “feel
pressured to immediately pay the debt, even if she disputed its validity.” Barany-Snyder v.
Weiner, 539 F.3d 327, 334 (6th Cir. 2008) (internal quotation marks omitted).

        Intimidation is at the heart of this case. There is no compelling reason for special counsel
to use the OAG letterhead, other than to misrepresent their authority and place pressure on those
individuals receiving the letters. The Attorney General insists that any sense of urgency (i.e.
intimidation) that is created by the letters is permissible because the State has special authority
that a regular creditor does not. This putative authority is not cited in any brief. The Attorney
General mentioned at oral argument the power to garnish wages and to withhold lottery
winnings. However, these powers are precisely those powers that are granted to all creditors
after they have received a judgment against the debtor.17 See Ohio Rev. Code § 2716 et seq.
(allowing for garnishment of wages to judgment creditors); Ohio Admin. Code § 3770:1-8-
01(B)(7) (allowing for garnishment of lottery prizes for judgment creditors). Presumably, it is
the lack of extraordinary powers with respect to the collection of consumer debts that causes the
Attorney General to seek out special counsel with “expertise” in “the securing of judgments” and


        17
           The Attorney General does have special powers with respect to tax debts, which are not at issue in this
case. See, e.g., Ohio Rev. Code § 3770.073 (“Satisfying debts to state from lottery prize awards”); § 3770.072
(“State income tax withholding and filing of report”).
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.        Page 19

“post-judgment collections.” (R. 48-11, Jones RFQ Response, PageID # 660); see also Ohio
Rev. Code § 131.02(C) (listing the Attorney General’s debt collection options: “The attorney
general shall collect the claim or secure a judgment . . . .” (emphasis added)). The use of the
letterhead has no apparent purpose beyond misleading a consumer into believing it is the
Attorney General who is collecting on the account. But bad intentions do not result in liability
under § 1692e; the debt collection practice must actually be deceptive.

       The question before us, then, is whether an unsophisticated consumer could reasonably
be misled into thinking she was being contacted by the Ohio Attorney General due to an
independent contractor’s use of OAG letterhead. If she could, we must also determine whether
there is a genuine dispute of material fact as to any confusion that could be created by this debt
collection practice under the particular circumstances of this case. Before we answer these
questions, an overview of the liability provisions is necessary.

       A.      Liability Provisions

       A debt collector violates § 1692e, put simply, if the collection practice that he uses has
the tendency to confuse the least sophisticated consumer. Harvey v. Great Seneca Fin. Corp.,
453 F.3d 324, 329 (6th Cir. 2006). This is an objective standard, with a relatively low bar so as
to cast FDCPA-protection over all consumers, even those who are “gullible” or “naive.” Kistner
v. Law Offices of Michael P. Margelefsky, LLC, 518 F.3d 433, 438 (6th Cir. 2008). However,
because it is an objective standard, we will not sanction “liability for bizarre or idiosyncratic
interpretations of collection notices.” Barany-Snyder, 539 F.3d at 333 (internal quotation marks
omitted). Courts must consider the question of liability in light of the FDCPA’s prevailing
purpose—to prevent abusive, misleading, and deceptive debt collection practices.

       In addition to the general liability provision, the FDCPA enumerates sixteen specific
instances of conduct deemed to be per se violations of § 1692e. Plaintiffs rely on two of these
provisions, §§ 1692e(9) and (14). “Without limiting the general application of the foregoing, the
following conduct is a violation of [§ 1692e]”:

       (9) The use or distribution of any written communication which simulates or is
       falsely represented to be a document authorized, issued, or approved by any court,
No. 14-3836                 Gillie, et al. v. Law Office of Eric A. Jones, et al.                   Page 20

        official, or agency of the United States or any State, or which creates a false
        impression as to its source, authorization, or approval.
        ...

        (14) The use of any business, company, or organization name other than the true
        name of the debt collector’s business, company, or organization.

15 U.S.C. §§ 1692e(9), (14). Only material violations of the § 1692e prohibitions will result in
liability.18 Wallace v. Washington Mut. Bank, F.A., 683 F.3d 323, 326–27 (6th Cir. 2012). But
materiality in the FDCPA context is no more than a restatement of the above-referenced
standard: a false representation or act is material if it has the tendency to confuse the least
sophisticated consumer. Id.

        B.       OAG Letterhead and the Least Sophisticated Consumer

        We must decide, given the particular facts of this case and the words written in these
letters, whether the least sophisticated consumer would be misled by the use of OAG letterhead,
or, if there is any genuine dispute of fact as to whether these letters were misleading. See
Wallace, 683 F.3d at 326–27. Section 1692e(9) prohibits debt collectors from “simulat[ing]”
official documents; from “falsely represent[ing]” that a communication is being “issued” by a
government agent; and from distributing communications that “create[] a false impression as to
its source.” Subsection (14) prohibits the use of “any . . . name other than the true name of the
debt collector’s business.” It is clear that these provisions were violated in the technical sense—
Mike DeWine is not the true name of any Defendant, Sarah Sheriff is not a special counsel, and
the official letterhead certainly implied that the letter was issued by the OAG. But whether these
misrepresentations are material requires further analysis.

        Historically, special counsel’s use of OAG letterhead has led to confusion. The Attorney
General admitted to receiving phone calls from consumers asking whether the letters were


        18
            Plaintiffs suggest that materiality must be presumed under subsections (9) and (14) because those
subsections describe misleading or deceptive means as opposed to false representations. This distinction is
overstated. “Materiality is an ordinary element of any federal claim based on a false or misleading statement.”
Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596 (6th Cir. 2009) (internal quotation marks omitted) (emphasis
added). Here, we are concerned whether the means—using OAG letterhead—is making the materially false
statement that the letters were, in fact, sent by the Attorney General. Moreover, a materiality requirement is
consistent with the legislative intent. See S. Rep. 95-382 (“[The FDCPA’s] purpose is to protect consumers from a
host of unfair, harassing, and deceptive debt collection practices without imposing unnecessary restrictions on
ethical debt collectors.” (emphasis added)).
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.          Page 21

authentic, and if the consumer did in fact owe a debt to the Attorney General. This revelation is
unsurprising; many consumers might reasonably be unaware of Ohio’s debt certification process
and fail to understand why Ohio’s chief law enforcement officer is attempting to collect from
them. Receiving a bill from a state university, which the consumer actually attended, would
naturally be perceived by an average consumer, to say nothing of a naïve or gullible one, as
substantially different from receiving a collection letter written on OAG letterhead.             The
presence of the authoritative symbols at the top of the letter immediately signals to the debtor
that it is the State of Ohio that is threatening to take action against her. If the consumer has been
deceived, he or she may be overborn, and the precise type of abuse that the FDCPA sought to
eradicate has been achieved.

       The letterhead is not, however, the sole representation made by these letters. We must
presume that Plaintiffs will read the entirety of the collection notice, with “a basic level of
understanding . . . and care.”      Kistner, 518 F.3d at 438–39.         Both letters included clear
indications that they were sent by an attorney who was acting as a debt collector. There was also
some indication that the attorney’s role as a debt collector was separate and apart from the OAG.
Defendant Jones signed the letter directed to Gillie as “Outside Counsel for the Attorney
General’s Office.” He also used his business address and informed Gillie to contact one of his
employees at his law firm. Likewise, Defendant Sarah Sheriff signed the Meadows letter as both
an employee of Wiles Law Firm and as special counsel. These representations may clarify the
confusing impact of the letterhead for the least sophisticated consumer, or they may be
overshadowed by the larger presence of the Great Seal of Ohio and the Attorney General’s name.
The inclusion of the title “special counsel” in the signature block says nothing about a debt
collector’s relationship to the Attorney General; and the representation that a debt collector is
acting as outside counsel working for a law firm does not preclude liability. See Peter v. GC
Servs. L.P., 310 F.3d 344, 352 (5th Cir. 2002) (finding a violation of § 1692e(14) where a debt
collector used its true name in the letter while simultaneously directing the consumer to the
government’s return address). The independent debt collector may have achieved his desired
impact at the point when the letter is opened and the least sophisticated consumer perceives the
name of the Attorney General because the least sophisticated consumer may believe that “the
price of poker has just gone up.” Avila v. Rubin, 84 F.3d 222, 229 (7th Cir. 1996).
No. 14-3836                  Gillie, et al. v. Law Office of Eric A. Jones, et al.    Page 22

       Both parties, and the court below, believe that summary judgment is appropriate one way
or the other, but materiality is a mixed question of law and fact. See United States v. Gaudin,
515 U.S. 506, 521 (1995) (“It is commonplace for the same mixed question of law and fact to be
assigned to the court for one purpose, and to the jury for another.”). And, often “whether a letter
is misleading raises a question of fact.” Buchanan v. Northland Grp., Inc., 776 F.3d 393, 397
(6th Cir. 2015). A letter that contains contradictory information or that tends to send a mixed
signal is inherently confusing when it fails to include language that clarifies its meaning. Miller
v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 309 (6th Cir. 2003). Use of the letterhead, in our
view, is intended to induce a higher rate of repayment by intimating that the State of Ohio is in
fact sending the letter, which may lead the naïve consumer to prioritize this debt above all others
for no good reason. But intentions are not always realized and do not necessarily predict the
impact of these letters on the least sophisticated consumer. It is not our role as judges to assert
with certainty and without verifiable reason which individuals would or would not be misled by
these letters. Therefore, we will not do so in this instance. Whether these letters did enough to
clarify the initial confusion created by the use of the government letterhead is a question for the
jury. See, e.g., Kistner, 518 F.3d at 441; Hartman v. Great Seneca Fin. Corp., 569 F.3d 606, 613
(6th Cir. 2009).

       The Wiles Defendants suggest that Meadows could not reasonably have been confused
because she had previously entered into an agreement to pay the debt in question and the letter
was sent at her request. But this contention rings hollow,19 and regardless, would not shield
Defendants from liability because Meadows did not have to allege harm or actual confusion—the
FDCPA is a “strict liability statute.” Fed. Home Loan Mortg. Corp. v. Lamar, 503 F.3d 504, 513
(6th Cir. 2007).

       Defendants also seek shelter from potential liability by way of qualified immunity, which
generally shields “government officials performing discretionary functions . . . from civil
damages liability as long as their actions could reasonably have been thought consistent with the




       19
            The letter was generically addressed to “Sir/Madam.”
No. 14-3836                  Gillie, et al. v. Law Office of Eric A. Jones, et al.                     Page 23

rights they are alleged to have violated.” 20 Anderson v. Creighton, 483 U.S. 635, 638 (1987).
But qualified immunity is inapplicable to an action brought directly under the FDCPA, where
Congress has included an explicit exemption from debt collector liability for government
officials. Cf. Andrus v. Glover Constr. Co., 446 U.S. 608, 616–17 (1980) (“Where Congress
explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to
be implied. . . .”).21

         The Attorney General insists that no deception has occurred in this case because special
counsel and the OAG are but one and the same. But they are not.22 The contractual relationship
between special counsel and the Attorney General is no different than the relationship between
any private, for profit debt collector and the creditors he or she serves. And neither a contractual
relationship, nor any power of agency, nor an accurate description by special counsel of their
relation to the OAG, precludes liability under the FDCPA. See Knight v. Schulman, 102 F. Supp.
2d 867, 876 (S.D. Ohio 1999) (“[R]egardless of whether the Defendant was acting as an agent of
the United States at the time the letters . . . were written,” the FDCPA applied “[s]ince [he] was
an attorney in private practice, rather than an officer or employee of the United States.”); see also
McMillan v. Collection Profs., Inc., 455 F.3d 754, 761 (7th Cir. 2006) (“[I]n some cases the
literal truth may convey a misleading impression.”) (internal quotation marks omitted));
Gradisher v. Check Enforcement Unit, Inc., 210 F. Supp. 2d 907, 914 (W.D. Mich. 2002) (“The
fact that [the defendant] had an ‘affiliation’ with the [government] is thus irrelevant because [the
defendant’s] notices created the false impression that the notices were generated by the
[government].”).

         20
           Private individuals working on the behalf of the government may also seek the protection of qualified
immunity, if offering such protection serves the public interest. Filarsky v. Delia, 132 S. Ct. 1657, 1665 (2012).
But three of five Defendants—Wiles Law Firm, Jones Law Office, and Sarah Sheriff—had no relationship with the
government. See (R. 48-8, 2013 Retention Agreement, PageID # 634) (“[T]he appointment of Special Counsel is
personal in nature and does not extend to any law firm that Special Counsel is associated with.”).
         21
           Qualified immunity typically applies to actions brought under § 1983 or pursuant to Bivens. We have
only extended its coverage to actions brought directly under a federal statute on a few occasions, see, e.g., Cullinan
v. Abramson, 128 F.3d 301, 312 (6th Cir. 1997) (RICO); Blake v. Wright, 179 F.3d 1003, 1011–12 (6th Cir. 1999)
(Federal Wiretap Act), and those statutes did not include explicit exemptions for public officials.
         22
            See, e.g., (R. 48-8, Retention Agreement, PageID # 634–35) (“No Special Counsel . . . shall be regarded
as in the employment of, or as an employee of, the Attorney General or the State Clients”; “Special counsel shall be
engaged by the Attorney General solely on an independent contractor basis”; “Special Counsel shall, at its own
expense, procure and maintain, during the term of this Agreement, malpractice insurance”; “Special Counsel agrees
to indemnify and to hold the Attorney General and the State of Ohio harmless and immune from any and all claims
for injury or damages arising from this Retention Agreement that are attributable to Special Counsel’s own actions
or omissions or those of his/her partners, associates . . . .”).
No. 14-3836             Gillie, et al. v. Law Office of Eric A. Jones, et al.         Page 24

       Special counsel had an affirmative duty as debt collectors to abide by the provisions of
the FDCPA. The FDCA prohibits, as a per se deception, the false implication that a collection
notice is being sent by a government actor. This deception may inappropriately influence a
consumer’s decisions by inducing prompt payment, regardless of the debtor’s circumstances or
the accuracy of the alleged indebtedness. That an OAG employee could attain the same leverage
against the alleged debtor is not at issue in this case—employees and officers of a state are
exempt from the FDCPA. Whether or not the use of the letterhead by special counsel was
compelled by the OAG, a jury could reasonably find that special counsel’s use of the letterhead
is confusing; and therefore a violation of § 1692e, as a materially false, deceptive and misleading
practice. We recognize the importance of a state’s ability to collect on its own accounts, but
once it has assigned debts to an independent, third-party debt collector, the federal rules apply.
That is what happened in this case. And special counsel are liable if a jury finds that they have
held themselves out as something they are not.

                                         CONCLUSION

       Because a jury could reasonably find that the use of the Ohio Attorney General’s
letterhead by the “special counsel” acting as independent debt collectors, in the manner and
under the circumstances present here, to result in deceptive, misleading and false representations
in violation of the Fair Debt Collection Practices Act, we hereby VACATE the summary
judgment in favor of Defendants and REMAND this case to the district court with instructions
for the district court to submit to the jury the question as to whether these letters were actually
confusing to the least sophisticated consumer.
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.         Page 25

                                       _________________

                                             DISSENT
                                       _________________

       SUTTON, Circuit Judge, dissenting. From the founding, the States have taken debts—
whether owed by them or to them—seriously. Compare Chisholm v. Georgia, 2 U.S. (2 Dall.)
419 (1793), with U.S. Const. amend. XI. If States have the sovereign right to set the terms of
being sued, see Alden v. Maine, 527 U.S. 706, 715–27 (1999), they assuredly have a sovereign
right to determine how, when, and whether to collect the myriad debts owed to them. No State
to our knowledge employs all of the individuals needed to perform this sovereign function. See
Nat’l Ass’n of State Auditors, Comptrollers, and Treasurers, Government Debt Collection:
Survey Report and Recommendations 1–2 (2010), available at http://goo.gl/kO7GQ9. The States
as a result hire other agents to collect the debts for them. In the State of Ohio, that means the
Attorney General hires private lawyers—called “special counsel”—to collect debts on his behalf,
to file and settle debt-collection lawsuits with his permission, and to serve at his pleasure. These
lawyers become the Attorney General’s agents for debt-collection purposes, just as the
employees in the Collections Enforcement Section of the Attorney General’s Office serve as his
agents for these purposes, and together all of them are authorized to stand in his place when
recovering the State’s money.

       Plaintiffs filed this class action against the State’s special counsel under the Fair Debt
Collection Practices Act, claiming that their debt collection letters were “false and misleading”
because they used stationery with the Ohio Attorney General’s name on it. That claim has two
serious flaws. One is that the Act exempts state “officers” from its coverage. Under the
Dictionary Act and the clear-statement rule established by Gregory v. Ashcroft, 501 U.S. 452
(1991), the deputizing of private lawyers to act as assistant attorneys general makes them
“officers” of the State for these collection purposes. Any other interpretation would mean that
Congress meant to micromanage how a State structured its law-enforcement and debt-collection
efforts and would create grave constitutional concerns along the way. The other flaw is that the
special counsels’ use of the Ohio Attorney General’s stationery and the accurate description of
their relationship with the State are not “false and misleading” under the statute. The stationery,
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.        Page 26

which the Attorney General requires each special counsel to use, accurately describes the
relevant legal realities—that the law firm acts as an agent of the Attorney General and stands in
the shoes of the Attorney General in collecting money owed to the State. Because I would not
apply the Fair Debt Collection Practices Act to state sovereign functions that Congress has not
regulated and would not prohibit conduct that Congress has not banned, I must respectfully
dissent.

                                                  I.

       The Fair Debt Collection Practices Act prohibits debt collectors from using “false,
deceptive, or misleading representation[s] or means in connection with the collection of any
debt.” 15 U.S.C. § 1692e. Mindful of the sovereign authority of the Federal Government and
the States to determine how, when, and through whom to collect government debts, the Act
exempts “any officer of . . . the United States or any State to the extent that” debt collection
ranks among “his official duties.” 15 U.S.C. § 1692a(6)(C). The Dictionary Act defines
“officer” as “any person authorized by law to perform the duties of the office.” 1 U.S.C. § 1.
Outside counsel hired to handle governmental duties fit that definition to a tee.

       Begin with the phrase “authorized by law.” To “authorize” is “[t]o give legal authority,”
“to empower,” or “to sanction.” Black’s Law Dictionary (10th ed. 2014). That is what Ohio’s
special-counsel statute does. It empowers the Attorney General to “appoint special counsel to
represent the state” in connection with its debts, and it permits any action those private lawyers
take when they invoke their attorney-general-given authority. Ohio Rev. Code § 109.08. But for
the statute, the Attorney General has no power to hire private lawyers as contractors, and private
lawyers have no power to speak on his (and by extension the State’s) behalf. Section 109.08, to
wrap up, is a “law” that “authorize[s]” special counsel to act.

       Now consider the other key phrase: “the duties of the office.” An “office” is a “position
whose occupant has legal authority to exercise a government’s sovereign power for a fixed
period.” Black’s Law Dictionary (10th ed. 2014). Special counsel fit this bill as well. They
serve one-year renewable terms in a position created and empowered by statute. In their hands
rests nothing less than a portion of the Attorney General’s sovereign power to “enforce” the civil
code the Ohio legislature has crafted—“one of the quintessential functions of a State”—by in this
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.         Page 27

instance collecting money due the State. Diamond v. Charles, 476 U.S. 54, 65 (1986); see
Associated Builders & Contractors v. Perry, 16 F.3d 688, 692 (6th Cir. 1994). That may explain
why, after Georgia lost Chisholm before the Supreme Court and was forced to come to federal
court to defend debt-collection efforts against it, the Supreme Court proceeded to lose Chisholm
before the People. See U.S. Const. amend. XI. These are quintessentially sovereign functions
concerning the People’s money. Special counsel hired to perform core sovereign functions count
as “officers” exempt from the Fair Debt Collection Practices Act’s sweep.

       Even if one thinks that the Dictionary Act’s definition of “officer” is ambiguous in this
context, the exemption still applies. When Congress purports to regulate core state functions, it
must do so unambiguously. Gregory, 501 U.S. at 470. The Gregory clear-statement admonition
bars courts from construing ambiguous federal statutes to “trench on the States’ arrangements for
conducting their own governments.” Nixon v. Mo. Mun. League, 541 U.S. 125, 140 (2004). “If
Congress intend[s] to recalibrate state and federal power in an area that has traditionally been the
province of state government,” it must be clear in doing so. Jackson v. Sedgwick Claims Mgmt.
Servs., Inc., 731 F.3d 556, 567 (6th Cir. 2013) (en banc).

       Who can deny that plaintiffs’ interpretation of “officer” “trench[es] on the States’
arrangements for conducting their own governments”? Nixon, 541 U.S. at 140. The States’
sovereign authority gives them power to structure their legal departments as they please, and
their “varied” and “pragmatic” approaches have produced a “staggering[ly] divers[e]” array of
governance arrangements. Avery v. Midland Cnty., 390 U.S. 474, 482–83 (1968). As is its
sovereign right, Ohio has empowered its Attorney General to deputize third parties to shoulder
some of his duties. He may appoint special counsel to “represent the state in civil actions,
criminal prosecutions, or other proceedings in which the state is a party,” Ohio Rev. Code
§ 109.07; to “act as attorney at law in any antitrust case” for the State and its residents, id.
§ 109.81; to “exercise all rights, privileges, and powers of prosecuting attorneys” in organized-
crime cases, id. § 109.83; to “initiate and prosecute” violations of Ohio’s workers compensation
laws, id. § 109.84—and to “represent the state in connection with all claims of whatsoever nature
which are certified to the attorney general for collection,” id. § 109.08.
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.           Page 28

       Nor does Ohio stand alone in this regard. Every State has delegated at least some of its
debt-collection power to a non-State body. Sometimes that is the federal government, which in
fiscal year 2013 collected more than $3 billion in delinquent debts on behalf of all fifty States.
U.S. Dep’t of the Treasury, Fiscal Year 2013 Annual Report to the States: Treasury Offset
Program Delinquent Debt Collections 4 (2014), available at http://goo.gl/6O70u1; see 31 C.F.R.
§ 285.8. But other times that is a private entity. See, e.g., Idaho Code Ann. § 67-2358(1); Or.
Rev. Stat. § 293.231; Wash. Rev. Code § 19.16.500. One State’s collections-assignment scheme
bears more than a passing resemblance to Ohio’s. California’s Franchise Tax Board hires private
contractors to collect debts on the State’s behalf and authorizes them to “refer” debts “for
litigation by [their] legal representatives in the name of the Franchise Tax Board” itself. Cal.
Rev. & Tax Code § 19376(b). Interpreting the Fair Debt Collection Practices Act to regulate
special counsel’s activities undermines the State’s decision to allocate law enforcement
responsibilities between the Attorney General and his agents however the State sees fit. Absent a
clear congressional directive, federal courts have no license to interfere with that choice.

       Plaintiffs, notably, concede that “[t]he term ‘officer’ is ambiguous” and “open to
multiple[] yet reasonable interpretations.” Reply Br. at 5. That should be the end of this case.
Their inability to argue that the statute is unambiguous in their favor means the Gregory clear-
statement rule answers the question presented: “officers” includes special counsel authorized by
the Attorney General to handle specific government functions, including the collection of the
State’s debts.

       Plaintiffs offer several contrary arguments, all unpersuasive. First, they raise a canon of
their own: Remedial statutes must be construed liberally. See Cobb v. Contract Transp., Inc.,
452 F.3d 543, 559 (6th Cir. 2006). But we know that canon does not trump the Gregory clear-
statement rule because Gregory itself involved a remedial statute, the Age Discrimination in
Employment Act, and the Supreme Court insisted on a clear statement all the same.

       Second, plaintiffs seek solace in two circuit court decisions holding that independent
contractors cannot be officers: Pollice v. National Tax Funding, L.P., 225 F.3d 379 (3d Cir.
2000), and Brannan v. United Student Aid Funds, Inc., 94 F.3d 1260 (9th Cir. 1996). Neither
case helps them. In Pollice, a municipal government sold its debts to a debt collector, 225 F.3d
No. 14-3836             Gillie, et al. v. Law Office of Eric A. Jones, et al.          Page 29

at 389, eliminating the possibility that the collector was somehow an officer of the government in
collecting the debt for the government. And in Brannan, the collector and not the government
owned the debt in the first place. 94 F.3d at 1262. In this case, by contrast, the State of Ohio
remains the ultimate creditor and thus its agents—special counsel—collect the debts on the
State’s behalf.

       Third, plaintiffs argue that Congress could not have intended the state-officer exception
to include special counsel because the Fair Debt Collection Practices Act has a separate
provision giving the State an out: It may ask the federal Consumer Financial Protection Bureau
to exempt special counsel from the Act’s requirements.               15 U.S.C. § 1692o.        That
misunderstands how this relief valve functions. The Act permits the Bureau to exempt “any
class of debt collection practices” subjected by state law to “substantially similar” consumer-
protection requirements. Id. The relevant question is whether state law regulates a certain debt-
collection practice as stringently as federal law, not whether the debt collectors carrying on that
practice are “substantially similar” to entities the Act exempts. At any rate, the premise of this
argument is false. Plaintiffs have not argued, nor have we found any indication, that the State’s
consumer-protection law regulates the Attorney General’s use of his own letterhead.

       Fourth, plaintiffs argue that Ohio does not treat special counsel as state officers under its
own law for some purposes. But the question at hand is how the federal Fair Debt Collection
Practices Act treats “officers,” not how state law treats the term for some purposes. The only
relevant state law question is whether the state law duties of special counsel satisfy the federal
definition of “officer.” They do. Even if state law definitions of “officer” were relevant,
plaintiffs mischaracterize how Ohio uses the term for this purpose: debt collection. The state
statute regulating collection agencies defines such agencies as persons “who, for compensation,
. . . offer[] services to collect an alleged debt asserted to be owed to another.” Ohio Rev. Code
§ 1319.12(A)(1). Just like its federal counterpart, it exempts “[a]ny public officer” from its
terms, id. § 1319.12(A)(2)(e)—and Ohio courts define “officer” the same way the Dictionary Act
does. “[T]he chief and most decisive characteristic of a public office,” the Ohio Supreme Court
has held, “is determined by the quality of the duties with which the appointee is invested, and by
the fact that such duties are conferred upon the appointee by law.” Engel v. Univ. of Toledo Coll.
No. 14-3836               Gillie, et al. v. Law Office of Eric A. Jones, et al.      Page 30

of Med., 957 N.E.2d 764, 768 (Ohio 2011). Ohio courts applying that definition accord no
significance to the fact that a particular appointee may also be an independent contractor whose
statutorily prescribed duties are fleshed out by the terms of his contract. See Solowitch v.
Bennett, 456 N.E.2d 562, 566 (Ohio Ct. App. 1982). All of this explains why Ohio regards even
the Deputy Registrar of the Bureau of Motor Vehicles, an independent contractor under the
statute, as an “officer.” Id.

        Finally, plaintiffs urge us to limit the Dictionary Act’s definition because every state
contractor would otherwise qualify as an “officer.” Any such slope is not as steep or as slick as
they imagine. The Ohio Facilities Construction Commission, cited by the majority in support of
plaintiffs’ view, proves the point: There is nothing “sovereign” about the power to “construct[]
and repair” a state agency’s buildings, Ohio Rev. Code § 123.21, and sovereign power remains a
precondition of officer status.       In other respects, the Dictionary Act’s definition reads
expansively because the definition is expansive. Congress knows how to supersede a Dictionary
Act default and has done so before: Title 5 defines “officer” as someone (1) “required by law to
be appointed in the civil service” by the President, certain agency heads, or a federal court;
(2) “engaged in the performance of a Federal function”; and (3) “supervis[ed]” by a limited
group of people. 5 U.S.C. § 2104. Other restrictive definitions exist. To qualify as a principal
officer under the National Constitution, a person must be presidentially appointed and
senatorially approved, swear an oath of office, and “exercis[e] significant authority pursuant to
the laws of the United States.” See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561
U.S. 477, 506 & n.9 (2010). Congress did not deviate from the Dictionary Act when drafting the
Fair Debt Collection Practices Act. I would respect that choice and Gregory’s command that any
ambiguity in the statute be construed in a way that does not interfere with how the State chooses
to handle this core state function: debt collection.

                                                   II.

        Even if the Fair Debt Collection Practices Act somehow covered debt-collection efforts
by special counsel on behalf of the State, plaintiffs face another problem. The Act does not
transform the special counsels’ use of the Ohio Attorney General’s stationery into “false,”
“deceptive,” or “misleading” actions under the statute any more than it would do the same if a
No. 14-3836               Gillie, et al. v. Law Office of Eric A. Jones, et al.      Page 31

special counsel listed his or her name and firm under the Ohio Attorney General’s name and
address in a brief filed in this Court.

        Recall the distribution of authority the special-counsel statute creates. Special counsel
are the Attorney General’s agents, authorized to stand in his place when collecting Ohio debts.
As their contracts makes clear, they “provide legal services” on the Attorney General’s behalf.
R. 48-8 at 2. They may file and settle lawsuits with the Attorney General’s permission. Id. at 5.
The Collections Enforcement Section of the Office of the Attorney General assigns them specific
debts to collect, then audits their performance. Id. at 3. The State does not sell the debts to
special counsel, and they thus remain debts of the State. Id. at 6. As a consequence, special
counsel are no different from assistant attorneys general paid to recover the State’s money. That
is how the Attorney General treats them. Assistant attorneys general “frequently” help special
counsel draft pleadings, and sometimes sign on as co-counsel when a “particularly sensitive or
complex” case demands it. See R. 24 at 21. Assistant attorneys general even stand in for special
counsel (and special counsel for assistant attorneys general) when illness strikes or when
distance makes travel impractical, even if the replacement has not been formally assigned to the
debt. Id.; see Shapiro v. Ohio Attorney Gen., 725 N.E.2d 1232, 1235 (Ohio Ct. App. 1999). It
thus should come as no surprise that the Attorney General requires his debt-collection agents to
use his official stationery. See R. 5 at 2. In this context, an agent who uses his principal’s
letterhead speaks the truth; he does not say anything false or misleading.

        Consider the plaintiffs’ theory of liability under 15 U.S.C. § 1692e(9). That provision
prohibits the use of letters that “simulate[]” or are “falsely represented” to be “document[s]
authorized, issued, or approved by” a State, or that “create[] a false impression as to [their]
source, authorization, or approval.” Id. A document with the Attorney General’s letterhead, it is
no doubt true, gives the impression that it comes from the Attorney General. But special
counsel’s dunning letters do come from the Attorney General. And plaintiffs have not produced
any evidence that these special counsel exceeded the scope of their debt-collection authority
under state law or the Attorney General’s guidance.

        Now consider plaintiffs’ theory of liability under 15 U.S.C. § 1692e(14). That provision
prohibits debt collectors from using “any business, company, or organization name other than the
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.        Page 32

true name of the debt collector’s business, company, or organization.” Plaintiffs argue that, by
employing the Attorney General’s letterhead, special counsel “use” a “name other than the true
name” of their law firms. Wrong again. Nothing about § 1692e(14) prohibits special counsel
from affiliating themselves with the Office of the Ohio Attorney General. Although the statute
never says what a “true name” is, its import is straightforward: A debt collector may not lie
about his institutional affiliation. As the Federal Trade Commission, one of the federal agencies
responsible for enforcing the Act, recognizes, a debt collector may use multiple names in his
various affairs as long as the names “do[] not misrepresent his identity or deceive the consumer.”
Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50,097, 50,107 (Dec.
13, 1988). Here too the principal-agent relationship resolves the dispute. Special counsel may
lawfully use the Attorney General’s letterhead because, as his agents, they represent him in debt-
related affairs.

        An analogy makes the point.        Many insurance agents are independent contractors.
See Weary v. Cochran, 377 F.3d 522, 526 (6th Cir. 2004).                Some insurance agents are
themselves separately incorporated. But no one bats an eye when an insurance agent working for
John Doe Insurance Agency, Inc. uses Nationwide Mutual Insurance Co. letterhead when selling
Nationwide insurance products on Nationwide’s behalf. Just as there is nothing remotely untrue
or misleading about using that letterhead, there is nothing remotely untrue or misleading about
using this letterhead.

        Plaintiffs offer several theories to resist this conclusion. Theory one: The letterhead
misrepresents a special counsel’s authority because state law purportedly prohibits special
counsel from using the Attorney General’s letterhead to collect these debts. But plaintiffs offer
no caselaw to that effect.     And Ohio’s top legal official, the Attorney General, has said
otherwise. He requires all special counsel performing debt collection on his behalf to use his
letterhead, whether in the context of unpaid taxes or other state debts. See R. 5 at 2. Notably,
plaintiffs do not argue that the Attorney General has violated state law.         See R. 31 at 3
(affirmatively waiving the argument). In this setting, a private law firm cannot plausibly be
tagged with liability under the Act for false or misleading acts when it complies with the
directions of the State’s top legal official about a matter of state law. The only thing that could
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.         Page 33

be false or misleading in this setting would be to send out dunning letters on the law firm’s
stationery.

       Theory two: The letterhead tricks debtors into believing they are being contacted by the
Attorney General when they are in fact being contacted by someone else. That does not make
sense either. Special counsel are the Attorney General when it comes to debt collection, and as
his agents possess just as much authority to invoke his name as an assistant attorney general or
another of his employees. It makes no difference that special counsel are deemed independent
contractors by contract, thanks to a basic principle of agency law: A person need not be a
principal’s employee to be that principal’s agent.         “[N]othing about the title independent
contractor invariably precludes someone from being an agent under appropriate circumstances.”
United States v. Hudson, 491 F.3d 590, 595 (6th Cir. 2008) (citing Restatement (Second) of
Agency § 2 cmt. b (1958)). For that inquiry, it does not matter whether special counsel work in
the Attorney General’s office building or their own office building, whether they use the
Attorney General’s computers or their own computers, whether they are insured by the Attorney
General or by their own policies. The only question that matters is whether they exercise the
Attorney General’s debt-collection powers as his agents. They do.

       Theory three: The letterhead confuses debtors into thinking that debts owed to the State
of Ohio are more significant than a debt owed to a private entity such as a bank. Plaintiffs do not
spell out the source of this alleged intimidation, but a few possibilities come to mind. One is the
institutional affiliation printed on the letterhead: “Mike DeWine, Ohio Attorney General.” See
Appendix. But that is the same institutional affiliation conveyed by the letters’ signature blocks.
E.g., id. (“Outside Counsel for the Attorney General’s Office.”). Plaintiffs conceded at argument
that the Act does not bar special counsel from referencing their job title in their signatures. The
letterhead’s content thus cannot supply a cognizable basis for this claim.

       Another possibility turns on the creditor itself:          the State of Ohio.   An official
communication from the State could intimidate an unsophisticated consumer into thinking that
the consequences of failing to pay this debt (as opposed to private debts) are more severe. But
that fear is justified and anything but unsophisticated. From the perspective of a consumer, debts
owed to Ohio (and other governments) do have consequences not shared by debts owed to
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.          Page 34

private parties. For example, the State may deduct what it is due from a taxpayer’s refund,
whether the refund comes from the Federal Government, the State, or a local government. See,
e.g., Ohio Rev. Code § 5703.77(D) (credit account balances); id. § 5726.31 (financial institutions
tax); id. § 5747.12 (income tax); 31 C.F.R. § 285.8 (federal tax). That is not true with respect to
private debts. Debts owed to governments also take priority over most private debts in state
probate proceedings. See Ohio Rev. Code § 2117.25(A). The special consequences of state
debts explain why the Act bars debt collectors unaffiliated with a State from using the State’s
name to scare debtors into paying. When the State itself is doing the demanding, however,
nothing about the resulting fear misleads. And when special counsel communicate with debtors,
they stand in the State’s shoes, just as the Attorney General would stand in the State’s shoes if he
pursued delinquent debtors himself. The only thing misleading in this setting would be to
suggest (through a law firm letterhead alone) that this was not a state debt.

       The last possibility is that the use of the Attorney General’s letterhead evokes unjustified
fears: fear of the Attorney General “stop[ping] or delay[ing]” a pending bankruptcy, R. 48-2 at
1, or fear of being charged with a crime, R. 48-3 at 2. But neither of the milquetoast letters in the
record threatens criminal prosecution, civil penalties, or any action whatsoever. See Appendix.
The letter to Pamela Gillie simply invites her to “make arrangements to pay” if she cannot satisfy
her obligation in full, while the letter to Hazel Meadows simply discloses her current balance
owed. Id. Not even the least sophisticated consumer could infer anything from these letters
other than the reality that these were indeed state debts.

       Theory four: The letterhead misleads debtors into thinking that special counsel are not
associated with the State when in fact they are. True, the Office of the Attorney General has
received calls from debtors worried that a special-counsel dunning letter is a scam. But that
implies the letters do not say enough about how tightly knit the Attorney General and special
counsel are—an implication that contradicts plaintiffs’ entire theory of liability.

       All of this may explain why the only circuit to confront an analogous governmental debt-
collection practice has rejected plaintiffs’ argument. See Heredia v. Green, 667 F.2d 392 (3d
Cir. 1981). In Heredia, the Philadelphia Municipal Court appointed defendant Edward Green as
a “landlord and tenant officer,” as state law authorized it to do, and ordered him to deliver
No. 14-3836              Gillie, et al. v. Law Office of Eric A. Jones, et al.          Page 35

delinquency notices on the Court’s behalf. Id. at 393, 395. Recognizing Green as an “officer,”
the Third Circuit turned aside plaintiffs’ claims under the Fair Debt Collection Practices Act’s
officer exemption. To hold otherwise would place Green “in the anomalous position of being
exposed to personal monetary liability for deceptively giving the impression that he was acting
as an officer of the court despite the fact that his actions . . . had indeed been authorized by that
court.” Id. at 396 (Stern, J., concurring). As for Peter v. GC Servs., L.P., 310 F.3d 344 (5th Cir.
2002), the Fifth Circuit never considered the relationship between the government and the
defendants and thus never considered the agency question presented here.

       The majority seeing things differently, I respectfully dissent.
No. 14-3836   Gillie, et al. v. Law Office of Eriic A. Jones, et al.   Page 36

                                       Appendixx
No. 14-3836   Gillie, et al. v. Law Office of Eriic A. Jones, et al.   Page 37
