Aargon Agency, Inc. v. Sandy O'Laughlin ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AARGON AGENCY, INC., Nevada No. 22-15352
corporation; ALLIED COLLECTION
SERVICES, INC., a Nevada D.C. No.
corporation; ASSETCARE, LLC, a 2:21-cv-01202-
Texas limited liability company; RFB-BNW
CAPIO PARTNERS, LLC, a Texas
limited liability company; CF
MEDICAL, LLC, a Nevada limited OPINION
liability company; CLARK COUNTY
COLLECTION SERVICE, LLC, a
Nevada limited-liability company;
COLLECTION SERVICE OF
NEVADA, a Nevada corporation;
NEVADA COLLECTORS
ASSOCIATION, a Nevada non-profit
corporation; PLUSFOUR, INC., a
Nevada corporation; RM GALICIA,
INC., doing business as Progressive
Management, LLC; THE LAW
OFFICES OF MITCHELL D.
BLUHM & ASSOCIATES, LLC, a
Georgia limited liability company,
Plaintiffs-Appellants,
v.
2 AARGON AGENCY, INC. V. O’LAUGHLIN
SANDY O'LAUGHLIN, in her
capacity as Commissioner of State Of
Nevada Department Of Business And
Industry Financial Institutions
Division,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Argued and Submitted September 2, 2022
San Francisco, California
Filed June 15, 2023
Before: William A. Fletcher, Jay S. Bybee, and Lawrence
VanDyke, Circuit Judges.
Opinion by Judge W. Fletcher;
Dissent by Judge VanDyke
AARGON AGENCY, INC. V. O’LAUGHLIN 3
SUMMARY**
Consumer Rights
The panel affirmed the district court’s order denying
preliminary injunctive relief to entities engaged in consumer
debt collection in their action asserting a facial challenge to
Nevada Senate Bill 248 (“S.B. 248”), which requires debt
collectors to provide written notification to debtors 60 days
before taking any action to collect a medical debt.
Plaintiffs alleged that S.B. 248 is unconstitutionally
vague, constitutes a prior restraint in violation of the First
Amendment, and is preempted by the Fair Credit Reporting
Act (“FCRA”) and the Fair Debt Collection Practices Act
(“FDCPA”).
The panel affirmed the district court on the grounds that
plaintiffs failed to show a likelihood of success on the merits
of their claims. The panel first rejected plaintiffs’ claim that
the term “action to collect a medical debt” in S.B. 248 was
unconstitutionally vague, noting that the implementing
regulations set forth examples of actions that do, and do not,
constitute actions to collect a medical debt.
Addressing the First Amendment claim that S.B. 248
impermissibly burdens plaintiffs’ speech, the panel held
that: S.B. 248 regulates commercial speech and therefore is
not subject to strict scrutiny; communications to collect a
medical debt “concerned lawful activity” and were not
“inherently misleading;” Nevada’s asserted interest in
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 AARGON AGENCY, INC. V. O’LAUGHLIN
protecting medical debtors in Nevada from financial ruin in
the wake of the Covid-19 pandemic was substantial; S.B.
248 directly advanced the government interest asserted; and
S.B. 248 was not a more extensive regulation than necessary
to serve the State’s interest.
The panel next rejected plaintiffs’ argument that the
FCRA, which regulates the creation and the use of consumer
reports by consumer reporting agencies for certain specific
purposes, expressly preempts S.B. 248 under 15 U.S.C. §
1681t(b)(1)(F) because that provision broadly preempts any
state law “relating” to the duties of persons or debt collection
agencies who furnish information to credit reporting
agencies. The panel declined to read § 1681t(b)(1)(F) this
broadly, determining rather that its presumptive effect was
limited by the specific reporting requirements imposed by 15
U.S.C. § 1681s-2. The panel concluded that S.B. 248’s 60-
day notification period in no way interferes with the
reporting obligations as spelled out in § 1681s-2. The panel
further held that S.B. 248 was not impliedly preempted by
the FCRA because it does not interfere with debt collectors’
responsibilities to furnish fair and accurate information to
credit reporting agencies.
The panel also rejected plaintiffs’ contention that the
FDCPA, whose purpose is to “protect vulnerable and
unsophisticated debtors from abuse, harassment, and
deceptive collection practices” impliedly preempts S.B. 248
because S.B. 248 prohibits debt collectors from sending
debtors required notifications pertaining to debt collection,
as set forth in 15 U.S.C. §§ 1692e and 1692g. The panel
stated that the notification contemplated in § 7 of S.B. 248 is
not an attempt to collect a debt. Instead, S.B. 248 provides
consumers with the protection of a 60-day notification
period before any action is taken to collect a medical debt,
AARGON AGENCY, INC. V. O’LAUGHLIN 5
while the requirements of FDCPA’s § 1692e and § 1692g
apply once debt collectors attempt to collect a debt. The
panel determined that S.B. 248 removes no protection under
the FDCPA, but rather, protects consumers for an additional
period of 60 days. The state law provides more protection
than the FDCPA provides standing alone. For that reason, it
is not inconsistent with the FDCPA.
Dissenting, Judge VanDyke disagreed with the
majority’s conclusion that plaintiffs were unlikely to
succeed on the merits of their preemption
claims. Addressing the FDCPA, Judge VanDyke stated that
two provisions in S.B. 248 were inconsistent with the
FDCPA and as such were preempted. First, a debt collector
cannot both comply with timely providing the FDCPA’s
required notices in its initial communication with a debtor
while also complying with S.B. 248’s 60-day prohibition
against debt collectors taking any action to collect a
debt. Second, because S.B. 248 obligates debt collectors to
include confusing information in communications to a
debtor, it requires debt collectors to violate the FDCPA’s
prohibition against using confusing or misleading
representations in their communications with debtors.
Addressing the FCRA preemption claim, Judge
VanDyke stated that the FCRA expressly preempts the
entirety of S.B. 248 because the text of the FCRA explicitly
manifests Congress’s intent to displace state laws regulating
how debt collectors report credit information to reporting
agencies. S.B. 248 further undermines Congress’s purposes
in enacting the FCRA by decreasing the accuracy of credit
reporting and thus is impliedly preempted.
Finally, with respect to the remaining factors for a
preliminary injunction, Judge VanDyke would have
6 AARGON AGENCY, INC. V. O’LAUGHLIN
concluded that Aargon Agency will suffer irreparable harm
absent a preliminary injunction, and that the balance of
equities and the public interest weigh in favor of enjoining
S.B. 248.
COUNSEL
Patrick J. Reilly (argued), Brownstein Hyatt Farber Schreck
LLP, Las Vegas, Nevada; James K. Schultz, Sessions Israel
& Shartle LLC, San Diego, California; David Israel,
Sessions Fishman Nathan & Israel LLC, Metairie,
Louisiana; for Plaintiffs-Appellants.
Kiel Ireland (argued), Deputy Attorney General; Office of
the Nevada Attorney General; Carson City, Nevada; Akke
Levin, Deputy Attorney General; Steven Shevorski, Chief
Litigation Counsel; Aaron D. Ford, Attorney General of
Nevada; Office of the Nevada Attorney General; Las Vegas,
Nevada; for Defendant-Appellee.
Rusty Graf, Black & LoBello, Las Vegas, Nevada; James
Wadhams, Black & Wadhams PLLC, Las Vegas, Nevada,
for Amicus Curiae Nevada Hospital Association.
AARGON AGENCY, INC. V. O’LAUGHLIN 7
OPINION
W. FLETCHER, Circuit Judge:
In June 2021, Nevada enacted Senate Bill 248 (“S.B.
248”), Act of June 2, 2021, ch. 291, 2021 Nev. Stat. 1668, in
response to the COVID-19 pandemic. S.B. 248 requires debt
collectors to provide written notification to debtors 60 days
before taking any action to collect a medical debt. Plaintiffs
are entities engaged in consumer debt collection. They filed
suit in district court against defendant, Commissioner of the
Financial Institutions Division of Nevada’s Department of
Business and Industry, bringing a facial challenge to the law.
They moved for a temporary restraining order and a
preliminary injunction, contending that S.B. 248 is
unconstitutionally vague, violates the First Amendment, and
is preempted by both the federal Fair Credit Reporting Act
(“FCRA”) and the Fair Debt Collection Practices Act
(“FDCPA”).
The district court denied plaintiffs’ motion for a
temporary restraining order and a preliminary injunction.
Plaintiffs timely appealed the denial of the preliminary
injunction. We have jurisdiction under 28 U.S.C. § 1291 and
we affirm.
I. Background
Plaintiffs-appellants Aargon Agency, Inc. and others
(“plaintiffs”) are corporations and limited-liability
companies that engage in the collection of consumer debt
(including medical debt) and in credit reporting. Plaintiffs
generally work on a contingency basis, getting paid only if
they succeed in collecting debt. Defendant-appellee Sandy
O’Laughlin (“defendant” or “Commissioner”) is
8 AARGON AGENCY, INC. V. O’LAUGHLIN
Commissioner of the Financial Institutions Division of
Nevada’s Department of Business and Industry.
Nevada enacted S.B. 248 in response to the COVID-19
pandemic. See Minutes of the Sen. Comm. on Com. and
Lab.: Hearing on S.B. 247 and 248, 2021 Leg., 81st Sess. 11
(Nev. Mar. 2021) [hereinafter Minutes]. The governor
signed the bill into law on June 2, 2021, and it went into
effect on July 1, 2021.
S.B. 248 amends Chapter 649 of the Nevada Revised
Statutes, which governs debt collection agencies. S.B. 248
§ 1 (Nev. 2021). Section 7 of S.B. 248 requires debt
collection agencies to send a written notification to medical
debtors 60 days before taking any action to collect a medical
debt. It provides:
Not less than 60 days before taking any action
to collect a medical debt, a collection agency
shall send by registered or certified mail to
the medical debtor written notification that
sets forth:
(a) The name of the medical facility,
provider of health care or provider of
emergency medical services that
provided the goods or services for
which the medical debt is owed;
(b) The date on which those goods or
services were provided; and
(c) The principal amount of the medical
debt.
Id. § 7(1). The notification must provide the name of the
collection agency and must inform the debtor that, as
AARGON AGENCY, INC. V. O’LAUGHLIN 9
applicable, either the “medical debt has been assigned to the
collection agency for collection” or that the “collection
agency has otherwise obtained the medical debt for
collection.” Id. § 7(2).
Section 7.5 permits a collection agency to accept a
voluntary payment from the debtor, so long as certain
conditions are met. An agency may accept voluntary
payment only if the medical debtor initiates contact with the
agency. Id. § 7.5(1)(a). To accept voluntary payment, the
agency must disclose to the debtor that “payment is not
demanded or due,” and that the “medical debt will not be
reported to any credit reporting agency during the 60-day
notification period specified in [§ 7(1)].” Id. § 7.5(1)(b).
“No action by a medical debtor to initiate contact with a
collection agency may be construed to allow the collection
agency to take action to collect the medical debt before the
expiration of the 60-day notification period . . . .” Id.
§ 7.5(2).
After briefing to this court but before oral argument,
defendant promulgated regulations implementing S.B. 248.
See Nev. Admin. Code R055-21 (adopted March 23, 2022;
filed June 13, 2022). The regulations define “action to
collect a medical debt” for purposes of § 7 and § 7.5 of S.B.
248 as “any attempt by a collection agency or its manager,
agents or employees to collect a medical debt from a medical
debtor.” Id. § 3(1). The regulations provide six examples of
actions that are, and four examples that are not, “action[s] to
collect a medical debt.” Examples of actions to collect a
medical debt are “[p]lacing telephone calls to the medical
debtor”; “[s]ending letters and notices, other than a 60-day
notification, to the medical debtor”; “[c]ontacting the
medical debtor by any electronic means”; “[r]eporting the
medical debt to any credit reporting agency”; [d]emanding
10 AARGON AGENCY, INC. V. O’LAUGHLIN
payment of the medical debt”; and “[c]ommencing any civil
action against the medical debtor.” Id. Examples of actions
that are not actions to collect a medical debt are “[a]ny action
initiated by a medical debtor”; [t]he provision to a medical
debtor of clarification relating to the content of a 60-day
notification by a collection agency or its manager, agents or
employees if the contact is initiated by the medical debtor”;
“[s]ending verification of a medical debt to the medical
debtor if requested by the medical debtor”; and “[s]ending a
receipt to a medical debtor for a voluntary payment.” Id.
After S.B. 248 became law but before it went into effect,
plaintiffs filed suit in the district court. Plaintiffs argued,
inter alia, that S.B. 248 is unconstitutionally vague,
constitutes a prior restraint in violation of the First
Amendment, and is preempted by the FCRA and the
FDCPA. Plaintiffs requested prospective injunctive relief,
including a temporary restraining order and a preliminary
injunction.
The district court denied plaintiffs’ motion for a
temporary restraining order and a preliminary injunction,
holding that plaintiffs are unlikely to succeed on the merits
of their claims.
Plaintiffs timely appealed the denial of their motion for
a preliminary injunction.
II. Standard of Review
We review a denial of a preliminary injunction for abuse
of discretion. CTIA - The Wireless Ass’n v. City of Berkeley,
928 F.3d 832, 838 (9th Cir. 2019). “An abuse of discretion
occurs when the district court based its ruling on an
erroneous view of the law or on a clearly erroneous
AARGON AGENCY, INC. V. O’LAUGHLIN 11
assessment of the evidence.” Id. (quoting Friends of the
Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014)).
III. Discussion
“A plaintiff seeking a preliminary injunction must
establish [1] that he is likely to succeed on the merits, [2]
that he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in his
favor, and [4] that an injunction is in the public interest.”
Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) (brackets
added). We use a “sliding scale” approach according to
which “a stronger showing of one element may offset a
weaker showing of another.” All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). For example,
“a preliminary injunction could issue where the likelihood of
success is such that serious questions going to the merits
were raised and the balance of hardships tips sharply in
[plaintiff’s] favor.” Id. (alteration in original) (internal
quotation marks omitted).
A. Likelihood of Success
On appeal, plaintiffs make three arguments directed to
the merits. They argue that S.B. 248 is unconstitutionally
vague; that S.B. 248 violates the First Amendment; and that
the FCRA and the FDCPA preempt S.B. 248. We agree with
the district court that none of these arguments is likely to
succeed. We address each in turn.
1. Vagueness
Plaintiffs argue that S.B. 248 is unconstitutionally vague
because it fails to define the term “any action to collect a
medical debt” contained in § 7(1), and thereby allows for
arbitrary enforcement by the State. Plaintiffs argue that debt
collectors are “left to guess” whether they are allowed, for
12 AARGON AGENCY, INC. V. O’LAUGHLIN
example, to verify an incoming caller’s identity, to answer a
debtor’s questions about their debt, or to assist with
processing insurance claims.
“A law is unconstitutionally vague if it fails to provide a
reasonable opportunity to know what conduct is prohibited,
or is so indefinite as to allow arbitrary and discriminatory
enforcement.” Hum. Life of Wash. Inc. v. Brumsickle, 624
F.3d 990, 1019 (9th Cir. 2010) (quoting Tucson Woman’s
Clinic v. Eden, 379 F.3d 531, 555 (9th Cir. 2004)).
“Nevertheless, perfect clarity is not required even when a
law regulates protected speech” because “we can never
expect mathematical certainty from our language.” Id. (first
quoting Cal. Tchrs. Ass’n v. State Bd. of Educ., 271 F.3d
1141, 1150 (9th Cir. 2001); then quoting Grayned v. City of
Rockford, 408 U.S. 104, 110 (1972)). “When a statute
clearly implicates free speech rights, it will survive a facial
challenge so long as it is clear what the statute proscribes in
the vast majority of its intended applications.”
Humanitarian L. Project v. U.S. Treasury Dep’t, 578 F.3d
1133, 1146 (9th Cir. 2009) (internal quotation marks
omitted). An economic regulation “is subject to a less strict
vagueness test,” both because “its subject matter is often
more narrow, and because businesses, which face economic
demands to plan behavior carefully, can be expected to
consult relevant legislation in advance of action.” Vill. of
Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489,
498 (1982) (footnotes omitted).
The district court concluded, even without the assistance
of the regulations quoted above, that the term “action to
collect a medical debt” is not unconstitutionally vague. If
there were any doubt about the correctness of the district
court’s holding, that doubt was removed when the defendant
adopted the regulations, quoted above, giving examples of
AARGON AGENCY, INC. V. O’LAUGHLIN 13
actions that do, and do not, constitute actions to collect a
medical debt.
2. First Amendment
Plaintiffs argue that S.B. 248 impermissibly burdens
their speech in violation of the First Amendment. They first
argue that debt-collection communications are not
commercial speech and that S.B. 248 is therefore subject to
strict scrutiny. They then argue that even if debt-collection
communications are commercial speech, the district court
erred in its commercial speech analysis. We disagree with
both arguments.
We may dispose of plaintiffs’ first argument quickly.
Commercial speech is “usually defined as speech that does
no more than propose a commercial transaction.” United
States v. United Foods, Inc., 533 U.S. 405, 409 (2001). This
definition is just a “starting point,” and courts “try to give
effect to a common-sense distinction between commercial
speech and other varieties of speech.” Ariix, LLC v.
NutriSearch Corp., 985 F.3d 1107, 1115 (9th Cir. 2021)
(internal quotation marks omitted). We agree with the
district court that S.B. 248 regulates commercial speech.
When debt collection agencies communicate with a debtor
in an attempt to collect medical debt, the communication
proposes a commercial transaction in which the debtor
would pay, in whole or in part, a past-due medical debt.
Plaintiffs’ second argument requires a little more
analysis. Because S.B. 248 regulates commercial speech, we
analyze it under the four-part test of Central Hudson Gas &
Electric Corp. v. Public Service Commission of New York,
447 U.S. 557, 566 (1980). See Retail Digit. Network, LLC
v. Prieto, 861 F.3d 839, 841 (9th Cir. 2017) (reaffirming that
14 AARGON AGENCY, INC. V. O’LAUGHLIN
we apply the Central Hudson test to restrictions on
commercial speech). Central Hudson provides:
At the outset, we must determine whether the
expression is protected by the First
Amendment. For commercial speech to
come within that provision, it at least must
concern lawful activity and not be
misleading. Next, we ask whether the
asserted governmental interest is substantial.
If both inquiries yield positive answers, we
must determine whether the regulation
directly advances the governmental interest
asserted, and whether it is not more extensive
than is necessary to serve that interest.
447 U.S. at 566. We take the four parts in turn.
First, plaintiffs’ speech comes within the protection of
the First Amendment because communications to collect a
medical debt “concern lawful activity” and are not
“inherently misleading.” See Am. Acad. of Pain Mgmt. v.
Joseph, 353 F.3d 1099, 1106–07 (9th Cir. 2004) (explaining
that while “inherently misleading” speech receives no First
Amendment protection, regulations that target “potentially
misleading” speech must satisfy the remaining Central
Hudson factors).
Second, Nevada’s asserted interest is “substantial.” S.B.
248 seeks to protect medical debtors in Nevada from
financial ruin in the wake of the COVID-19 pandemic.
Minutes at 12, 15. During the pandemic, an unusually high
number of Nevadans needed medical care, and many
Nevadans lost employer-sponsored health insurance. Id. at
11. Roughly twenty percent of Nevadans had medical debt
AARGON AGENCY, INC. V. O’LAUGHLIN 15
that had gone to collection agencies, id., and an increased
number of Nevadans had filed for bankruptcy, id. at 15.
Third, S.B. 248 “directly advances the governmental
interest asserted.” The 60-day notification period required
by § 7 provides time for debtors to communicate with
medical providers and insurance companies, allowing
debtors to verify whether the debt actually exists and to seek
available financial assistance before collection attempts
begin. Minutes at 16.
For the first time on appeal, Plaintiffs argue that S.B. 248
fails to directly advance the state’s interest because it is
constitutionally underinclusive. See Metro Lights, LLC v.
City of Los Angeles, 551 F.3d 898, 904–05 (9th Cir. 2009).
Relying on Greater New Orleans Broadcasting Ass’n v.
United States, 527 U.S. 173 (1999), plaintiffs argue that S.B.
248 is unconstitutional because it restricts debt-collection
speech by debt collection agencies but not by medical
providers.
Assuming that plaintiffs have not forfeited that
argument, see One Indus., LLC v. Jim O’Neal Distrib., Inc.,
578 F.3d 1154, 1158 (9th Cir. 2009), it is in any event
unpersuasive. We explained in Metro Lights:
[R]egulations are unconstitutionally
underinclusive when they contain exceptions
that bar one source of a given harm while
specifically exempting another in at least two
situations. First, if the exception ensures that
the [regulation] will fail to achieve [its] end,
it does not materially advance its aim. This
is the lesson of Greater New Orleans: self-
defeating speech restrictions will violate the
16 AARGON AGENCY, INC. V. O’LAUGHLIN
First Amendment. Second, exceptions that
make distinctions among different kinds of
speech must relate to the interest the
government seeks to advance.
551 F.3d at 906 (alteration in original) (citations and internal
quotation marks omitted).
Neither of the situations we described in Metro Lights is
present here. S.B. 248 is not “self-defeating.” Id. Rather,
as evident from the face of S.B. 248, the law provides useful
breathing room to a class of debtors who sorely need it. Nor
is the distinction between medical debt collection agencies
and medical providers unrelated to the governmental
interest. Collection agencies seek payment of debts for
which medical providers have already unsuccessfully sought
payment. Once a medical provider passes debt on to a
collector, collection costs and fees can drastically multiply
the amount owed, forcing some debtors into bankruptcy.
Minutes at 11, 13. Additionally, compared to medical
providers, collection agencies have different incentives and
employ different collection techniques. Collection agencies
are often paid on a contingency basis, compete with one
another based on how effective they are at obtaining
recovery, and possess resources and expertise that medical
providers lack. 85 Fed. Reg. 76735 (Nov. 30, 2020). In
light of these differences, the State is justified in providing
greater protection from the actions of collection agencies
than from those of medical providers.
Fourth, S.B. 248 is not a more extensive regulation than
necessary to serve the State’s interest. “The fourth part of
the [Central Hudson] test complements the direct-
advancement inquiry of the third, asking whether the speech
restriction is not more extensive than necessary to serve the
AARGON AGENCY, INC. V. O’LAUGHLIN 17
interests that support it.” Greater New Orleans, 527 U.S. at
188. This part of the test requires “a fit between the
legislature’s ends and the means chosen to accomplish those
ends—a fit that is not necessarily perfect, but reasonable;
that represents not necessarily the single best disposition but
one whose scope is in proportion to the interest served.” Bd.
of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)
(internal citations and quotation marks omitted). The
restriction need not be the “least restrictive means” of
achieving the desired objective. Id.The fit between Nevada’s goal and the means to
accomplish that goal is reasonable and proportionate. S.B.
248 does not completely ban commercial speech by debt
collection agencies. Instead, it prohibits speech constituting
an “action to collect a medical debt,” and only within a 60-
day notification period. This allows medical debtors time to
do such things as ascertain whether the debt is actually owed
or is owed in the amount claimed, contact relevant insurance
carriers, or take other actions.
3. Preemption
Plaintiffs argue that S.B. 248 is preempted by two federal
laws—the Fair Credit Reporting Act, and the Fair Debt
Collection Practices Act.
“The Supremacy Clause provides the constitutional
foundation for federal authority to preempt state law.”
Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1178 (9th Cir.
2016) (citing U.S. Const. art. VI, cl. 2; Kurns v. R.R. Friction
Prods. Corp., 565 U.S. 625, 630 (2012)). “Preemption of
state law, by operation of the Supremacy Clause, can occur
in one of several ways: express, field, or conflict
preemption.” Id. at 1178 (citing Kurns, 565 U.S. at 630–31).
Express preemption occurs “when the text of a federal
18 AARGON AGENCY, INC. V. O’LAUGHLIN
statute explicitly manifests Congress’s intent to displace
state law.” Ass’n des Éleveurs de Canards et d’Oies du
Quebec v. Bonta, 33 F.4th 1107, 1114 (9th Cir. 2022)
(quoting Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1022
(9th Cir. 2013)). Federal law may also impliedly preempt
state law through either field or conflict preemption. Ass’n
des Éleveurs, 33 F.4th at 1114. Conflict preemption,
potentially relevant here, occurs when “compliance with
both federal and state regulations is a physical impossibility”
or when the state law “stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.” Arizona v. United States, 567 U.S.
387, 399 (2012) (first quoting Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963); then
quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
“When addressing questions of express or implied pre-
emption, we begin our analysis with the assumption that the
historic police powers of the States [are] not to be superseded
by the Federal Act unless that was the clear and manifest
purpose of Congress.” Altria Group, Inc. v. Good, 555 U.S.
70, 77 (2008) (alteration in original) (internal quotation
marks omitted). “[T]he purpose of Congress is the ultimate
touchstone” of any preemption analysis. Medtronic, Inc. v.
Lohr, 518 U.S. 470, 485 (1996).
a. Fair Credit Reporting Act
The Fair Credit Reporting Act (“FCRA”) “regulates the
creation and the use of consumer report[s] by consumer
reporting agenc[ies] for certain specified purposes, including
credit transactions, insurance, licensing, consumer-initiated
business transactions, and employment.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 334–35 (2016) (alterations in original)
(internal quotation marks omitted). Plaintiffs argue that the
AARGON AGENCY, INC. V. O’LAUGHLIN 19
FCRA expressly preempts S.B. 248 under 15 U.S.C.
§ 1681t(b)(1)(F) to the extent that S.B. 248 prohibits a debt
collector from reporting medical debt until 60 days after
providing a notification pursuant to § 7. S.B. 248 §
7.5(1)(b)(2). Plaintiffs argue further that the FCRA
impliedly preempts S.B. 248, because the state law presents
an obstacle to the accomplishment of the FCRA’s purpose.
(1) Express Preemption
Plaintiffs contend that S.B. 248 is expressly preempted
because it is inconsistent with 15 U.S.C. § 1681t(b)(1)(F).
We disagree.
Section 1681t addresses the FCRA’s “[r]elation to State
laws.” 15 U.S.C. § 1681t; see Gorman v. Wolpoff &
Abramson, LLP, 584 F.3d 1147, 1166 (9th Cir. 2009). The
statute provides that, in general:
Except as provided in subsections (b) and (c),
this subchapter does not annul, alter, affect or
exempt any person subject to the provisions
of this subchapter from complying with the
laws of any State with respect to the
collection, distribution, or use of any
information on consumers . . . except to the
extent that those laws are inconsistent with
any provision of this subchapter, and then
only to the extent of the inconsistency.
15 U.S.C. § 1681t(a).
Congress added § 1681t(b) to the FCRA so as to “avoid
a patchwork system of conflicting regulations.” Ross v.
F.D.I.C., 625 F.3d 808, 813 (4th Cir. 2010) (internal
quotation marks and citation omitted). Section
20 AARGON AGENCY, INC. V. O’LAUGHLIN
1681t(b)(1)(F), upon which plaintiffs rely, provides in
relevant part: “No requirement or prohibition may be
imposed under the laws of any State . . . with respect to any
subject matter regulated under . . . section 1681s-2 of this
title, relating to the responsibilities of persons who furnish
information to consumer reporting agencies . . . .” In turn,
§ 1681s-2 imposes specific duties and responsibility on
“furnishers,” including on debt collection agencies, which
furnish information to credit reporting agencies (“CRAs”).
Id. § 1681s-2. Section 1681s-2(a) requires that furnishers
provide accurate information to CRAs by, for example: (1)
refraining from reporting inaccurate information when
furnishers have knowledge of errors or have received notice
and confirmation of errors; (2) correcting and updating the
CRAs if previously provided information is incomplete or
inaccurate; (3) if the information furnished is disputed by the
consumer, informing CRAs that such information is
disputed; (4) providing notice to CRAs of voluntarily closed
accounts; and (5) within 90 days after furnishing information
to CRAs about delinquent accounts, notifying CRAs of the
date of delinquency. Id. §§ 1681s-2(a)(1)-(5). Section
1681s-2(b) requires furnishers, upon notice of consumer
dispute of furnished information, to conduct an investigation
and report results of the investigation to the CRA.
Plaintiffs contend that § 1681t(b)(1)(F) broadly
preempts any state law “relating to” a furnisher’s duties. We
decline to read § 1681t(b)(1)(F) this broadly. The Supreme
Court has told us that the use of the phrase “with respect to”
“massively limits the scope of preemption” to only those
state laws that “concern” the phrase’s referents. See Dan’s
City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 261 (2013)
(interpreting the Federal Aviation Administration
Authorization Act’s preemption provision). Section
AARGON AGENCY, INC. V. O’LAUGHLIN 21
1681t(b)(1)(F) limits its preemptive effect to state laws “with
respect to any subject matter regulated under . . . section
1681s-2,” making clear that its preemptive effect is limited
by the requirements imposed by § 1681s-2.
We therefore agree with the Second Circuit that
Ҥ 1681t(b)(1)(F) does not preempt state law claims against
a defendant who happens to be a furnisher of information to
a consumer reporting agency within the meaning of the
FCRA if the claims against the defendant do not also concern
that defendant’s legal responsibilities as a furnisher of
information under the FCRA.” Galper v. JP Morgan Chase
Bank, N.A., 802 F.3d 437, 446 (2d Cir. 2015); see also
Consumer Data Indus. Ass’n v. Frey, 26 F.4th 1, 6–8 (1st
Cir. 2022) (interpreting an analogous FCRA preemption
provision, 15 U.S.C. § 1681t(b)(1)(E), narrowly). S.B. 248
does not fall within the exception to § 1681t(a) set out in
§ 1681t(b)(1)(F), because it does not affect furnishers’
obligations to provide accurate information to CRAs as
regulated by § 1681s-2(a), nor does it affect their obligations
upon notice of consumer disputes as regulated by § 1681s-
2(b).
It is true that § 1681s-2 includes some requirements
relating to the timing of furnishers’ reporting obligations.
For example, furnishers must “promptly notify” a CRA if
they regularly furnish information to CRAs about a
consumer and have furnished information to the CRA that
they then determine is “not complete or accurate,” id.
§ 1681s-2(a)(2)(B), and furnishers must report a date of
delinquency to a CRA within 90 days after furnishers have
provided information to the CRA about delinquent accounts,
id. § 1681s-2(a)(5)(A). See also id. §§ 1681s-2(a)(8)(E)(iv),
(b)(1)(E), (b)(2). However, § 1681s-2 nowhere sets out a
22 AARGON AGENCY, INC. V. O’LAUGHLIN
deadline for when furnishers must report a debt to a CRA.
S.B. 248’s 60-day notification period in no way interferes
with furnishers’ reporting obligations as spelled out in
§ 1681s-2.
(2) Implied Preemption
Plaintiffs argue that S.B. 248 is impliedly preempted by
the FCRA because it stands “as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.” Hines, 312 U.S. at 67. We disagree
here, too.
“Congress enacted [the] FCRA in 1970 to ensure fair and
accurate credit reporting, promote efficiency in the banking
system, and protect consumer privacy.” Safeco Ins. Co. of
Am. v. Burr, 551 U.S. 47, 52 (2007) (citing 15 U.S.C.
§ 1681); see also Guimond v. Trans Union Credit Info. Co.,
45 F.3d 1329, 1333 (9th Cir. 1995) (noting that legislative
history reveals the FCRA’s “consumer oriented objectives”).
Plaintiffs argue that S.B. 248 interferes with the accuracy of
credit reporting by building in an artificial reporting delay.
However, S.B. 248 does not interfere with debt collectors’
responsibility to furnish fair and accurate information to
CRAs. If anything, allowing medical debtors a brief window
of time—60 days—after receiving a collection agency’s
notification under S.B. 248 to verify their debt may improve
the accuracy of the information that debt collectors furnish
to CRAs.
Our dissenting colleague objects that we do not cite any
evidence in the record showing that, by providing additional
time to debtors to verify their medical debt, S.B. 248
increases accuracy of the information possessed by debt
collectors. Dissent at 50–51. We recognize that ultimately,
how S.B. 248 affects the accuracy of credit reporting is an
AARGON AGENCY, INC. V. O’LAUGHLIN 23
empirical question that is not really answered in the record
before us. But plaintiffs, not the Commissioner, have the
burden to demonstrate a likelihood of success on the merits.
See Preminger v. Principi, 422 F.3d 815, 823 n.5 (9th Cir.
2005). Plaintiffs fail to provide any factual or legal support
for their bald assertion that S.B. 248 “impermissibly blurs
the clear credit picture.”
b. Fair Debt Collection Practices Act
Plaintiffs also contend that the Fair Debt Collection
Practices Act (“FDCPA”) impliedly preempts S.B. 248
because, in plaintiffs’ view, it is impossible to comply with
both the FDCPA and S.B. 248. We disagree.
The purpose of the FDCPA is to “protect vulnerable and
unsophisticated debtors from abuse, harassment, and
deceptive collection practices.” Guerrero v. RJM
Acquisitions LLC, 499 F.3d 926, 938 (9th Cir. 2007).
Section 1692e prohibits a debt collector from “us[ing] any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. A debt collector violates § 1692e by, inter alia,
failing to provide the consumer with a so-called mini-
Miranda warning—a “disclos[ure] in the initial . . .
communication with the consumer . . . that the debt collector
is attempting to collect a debt and that any information
obtained will be used for that purpose.” Id. § 1692e(11).
The Act additionally requires that debt collectors send
written validation notices to debtors. Section 1692g(a)
provides: “Within five days after the initial communication
with a consumer in connection with the collection of any
debt, a debt collector shall, unless the following information
is contained in the initial communication or the consumer
has paid the debt, send the consumer a written notice
24 AARGON AGENCY, INC. V. O’LAUGHLIN
containing,” inter alia, the amount of the debt, the name of
the creditor, and statements about the validity and
verification of the debt.
The FDCPA’s preemption provision is similar in some
respects to that of the FCRA. It provides:
This subchapter does not annul, alter, or
affect, or exempt any person subject to the
provisions of this subchapter from complying
with the laws of any State with respect to debt
collection practices, except to the extent that
those laws are inconsistent with any
provision of this subchapter, and then only to
the extent of the inconsistency. For purposes
of this section, a State law is not inconsistent
with this subchapter if the protection such
law affords any consumer is greater than the
protection provided by this subchapter.
15 U.S.C. § 1692n. An important difference between the
FDCPA’s preemption provision and that of the FCRA is that
§ 1692n states that federal law provides a floor rather than a
ceiling. State laws that afford consumers with stronger
protection than the FDCPA are not preempted.
Plaintiffs contend that S.B. 248 prohibits debt collectors
from sending the so-called mini-Miranda warning required
under § 1692e(11). As noted above, S.B. 248 requires
collection agencies to notify debtors “60 days before taking
any action to collect a medical debt.” S.B. 248 § 7(1).
Plaintiffs argue that S.B. 248 prevents collection agencies
from providing consumers with the mini-Miranda warning
required by the FDCPA, in which debt collectors must
disclose in their “initial communication” “that the debt
AARGON AGENCY, INC. V. O’LAUGHLIN 25
collector is attempting to collect a debt.” 15 U.S.C.
§ 1692e(11).
Plaintiffs’ argument assumes that a § 7 notification is a
communication “in connection with the collection of any
debt” within the meaning of 15 U.S.C. § 1692e that would
trigger the mini-Miranda warning requirement. The
language of § 1692e, together with the language of
§ 1692e(11), forecloses that argument. The FDCPA
generally prohibits “false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” Id. § 1692e (emphasis added). Failing to provide
a mini-Miranda warning is one way a debt collector can
violate the prohibition. A debt collector must disclose “that
the debt collector is attempting to collect a debt and that any
information obtained will be used for that purpose.” Id.
§ 1692e(11). The two paragraphs, taken together, show that
communications “in connection with the collection of any
debt” are communications in which a debt collector is
attempting to collect a debt. See Grden v. Leikin Ingber &
Winters PC, 643 F.3d 169, 173 (6th Cir. 2011) (“[F]or a
communication to be in connection with the collection of a
debt, an animating purpose of the communication must be to
induce payment by the debtor.”); Gburek v. Litton Loan
Servicing, 614 F.3d 380, 384 (7th Cir. 2010) (observing that
a letter to a delinquent debtor listing payments due was not
a “communication in connection with the collection of any
debt” because “it did not demand payment and did not
otherwise attempt to collect the debt”); Reese v. Ellis,
Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216–17
(11th Cir. 2012).
The notification contemplated in § 7 of S.B. 248 is not
an attempt to collect a debt. In sending a § 7 notification,
debt collectors make no demand for payment or otherwise
26 AARGON AGENCY, INC. V. O’LAUGHLIN
engage in “a strategy to make payment more likely.” Grden,
643 F.3d at 173. In fact, when sending a § 7 notification, a
debt collector must inform the debtor that the notification “is
not a demand for payment.” Nev. Admin. Code R055-21
§ 4(2)(b). Moreover, S.B. 248 requires that debt collectors
provide a notification at least 60 days “before taking any
action to collect a medical debt.” S.B. 248 § 7(1) (emphasis
added); see also Nev. Admin. Code R055-21 § 3(1)
(defining “action to collect a medical debt” “to mean any
attempt by a collection agency or its manager, agents or
employees to collect a medical debt from a medical debtor”).
Debt collectors can easily comply with both S.B. 248 and
with the mini-Miranda warning requirement by first sending
out a § 7 notification and later providing the mini-Miranda
warning.
For the same reason, debt collectors can comply with
both S.B. 248 and the validation notice required by § 1692g.
Under § 1692g(a), a validation notice must be sent “[w]ithin
five days after the initial communication with a consumer in
connection with the collection of any debt.” (emphasis
added). Again, because the written notification required by
S.B. 248 must be sent 60 days before any action to collect a
debt, such communication is not a communication “in
connection with the collection of any debt.” S.B. 248 thus
does not prevent debt collectors from sending a validation
notice five days after an initial communication in connection
with the collection of any debt.
Our dissenting colleague contends that a § 7 notification
is a communication “in connection with the collection of a[]
debt,” because “there is only one reason debt collectors reach
out to debtors—to collect debts.” Dissent at 37–38. That
reasoning conflates the question of what motivates a debt
collector with the distinct question, relevant here, of what the
AARGON AGENCY, INC. V. O’LAUGHLIN 27
debt collector attempts to accomplish by providing the § 7
notification required by S.B. 248. Even though debt
collectors are ultimately motivated by the goal of successful
collection, “the [FDCPA] does not apply to every
communication between a debt collector and a debtor.”
Gburek, 614 F.3d at 385. Our sister circuits have noted a
number of instances in which a communication between a
debt collector and a debtor was not “in connection with the
collection of a[] debt” for purposes of the FDCPA, because
the particular communication did not constitute an attempt
to collect debt. See Heinz v. Carrington Mortg. Servs., LLC,
3 F.4th 1107, 1113–15 (8th Cir. 2021); Bailey v. Sec. Nat.
Servicing Corp., 154 F.3d 384, 388–89 (7th Cir. 1998);
Grden, 643 F.3d at 173. For the reasons discussed above,
here, we have one more such instance.
The FDCPA’s preemption provision confirms that S.B.
248 is not in conflict with the FDCPA. That provision
provides that “a State law is not inconsistent with [the
FDCPA] if the protection such law affords any consumer is
greater than the protection provided by [the FDCPA].” 15
U.S.C. § 1692n. As we have explained, S.B. 248 provides
consumers with the protection of a 60-day notification
period before any action is taken to collect a medical debt,
while the requirements of § 1692e and § 1692g apply once
debt collectors attempt to collect a debt. S.B. 248 thus
extends the period of time during which consumers receive
protection that enables them to verify or challenge the debt
and prevents debt collectors from reporting the debt, sending
repeated communications to debtors, or taking any other
adverse action. The state law provides more protection than
the FDCPA provides standing alone. For that reason, it is
not inconsistent with the FDCPA. 15 U.S.C. § 1692n. Our
dissenting colleague disagrees. He contends that by
28 AARGON AGENCY, INC. V. O’LAUGHLIN
delaying FDCPA warnings, S.B. 248 provides less, rather
than, greater protection. Dissent at 40. Our colleague
ignores the fact that S.B. 248 removes no protection under
the FDCPA, but rather, protects consumers for an additional
period of 60 days.
Plaintiffs also argue that Regulation F of the Consumer
Financial Protection Bureau (“CFPB”), which implements
the FDCPA, preempts S.B. 248. Plaintiffs argue that S.B.
248 prevents debt collectors from using the CFPB’s model
validation notice and thereby “interferes with the methods
by which the federal statute was designed to reach [its]
goal.” Arellano v. Clark Cnty. Collection Serv., LCC, 875
F.3d 1213, 1216 (9th Cir. 2017) (alteration in original)
(quoting Int’l Paper Co. v. Ouellette, 479 U.S. 481, 494
(1987)).
Regulation F requires debt collectors to provide
“validation information” to consumers by sending a
validation notice “in the initial communication” or “[w]ithin
five days of th[e] initial communication.” 12 C.F.R.
§ 1006.34(a) (2021). Regulation F defines “initial
communication” as “the first time that, in connection with
the collection of a debt, a debt collector conveys
information, directly or indirectly, regarding the debt to the
consumer.” Id. § 1006.34(b)(2). Regulation F’s preemption
standard mirrors that of the FDCPA, providing: “a State law
is not inconsistent with the Act or the corresponding
provisions of [Regulation F] if the protection such law
affords any consumer is greater than the protection provided
by the Act or the corresponding provisions of [Regulation
F].” Id. § 1006.104.
As with the FDCPA itself, Regulation F governs debt
collectors’ conduct after they convey information “in
AARGON AGENCY, INC. V. O’LAUGHLIN 29
connection with the collection of a debt.” By contrast, S.B.
248’s § 7 notification must be sent before debt collectors
undertake any action to collect a debt. Plaintiffs can comply
with § 7 of S.B. 248 and, upon expiration of S.B. 248’s 60-
day notification period, send the CFPB’s model validation
notice. See id. § 1006.34(d)(2).
Finally, plaintiffs argue that in practice the
Commissioner regards the notification required by § 7 of
S.B. 248 as a communication “in connection with the
collection of a debt.” In making this argument, plaintiffs
point to form letters that they submitted for approval and that
the Commissioner approved. There is some variation among
the approved form letters, but the letter reproduced in
plaintiffs’ brief is representative. The letter states that
“payment is not demanded or due within sixty (60) days
from the date of this letter,” and that “we will take no other
action to collect this debt until 60 days from the date of this
letter.” (Emphasis added.) The letter then goes on to state,
“This is an attempt to collect a debt.”
The Commissioner candidly admits in her brief to us that
“[t]he Debt Collectors are correct that, as written, the quoted
form letter is confusing and does not comply with SB 248.”
However, the Commissioner’s mistaken approval of the
form letters does not mean that S.B. 248 is inconsistent with
the FDCPA. The Commissioner apparently understood the
risk that her approval of the proposed letters might be
mistaken. Her approval was conditioned on a written
disclaimer stating, in relevant part, that “the machine letter
approval shall not constitute a legal opinion upon which [a
collection agency] may rely as a written guaranty or legal
opinion that [their] collection letters comply with all state
and federal laws, applicable regulations and ordinances.”
30 AARGON AGENCY, INC. V. O’LAUGHLIN
More important, the form letters were approved by the
Commissioner before August 24, 2021. On August 24, the
Commission issued a draft regulation specifying that a
notification sent pursuant to § 7 of S.B. 248 must explicitly
state that the notification “is not intended to be a
communication under the Fair Debt Collection Practices
Act.” See Exhibit to Plaintiffs’ Supplemental Response to
the Division’s Notice of Intent to Promulgate Regulations at
4, Aargon Agency, Inc. v. O’Laughlin, No. 2:21-cv-01202-
RFB-BNW (D. Nev. Aug. 29, 2021), ECF No. 40. The final
regulations later adopted by the Commission require that any
communication sent to a debtor pursuant to S.B. 248 include
that same statement. See Nev. Admin. Code R055-21
§ 4(2)(b).
Plaintiffs speculate in their brief to us that the form
letters were likely to “confuse or mislead” the “least
sophisticated debtor,” and so, violate the FDCPA. See
Terran v. Kaplan, 109 F.3d 1428, 1432–33 (9th Cir. 1997).
However, as the district court noted, there is no evidence that
any of the mistakenly approved letters were actually sent to
debtors. Indeed, as soon as the draft regulations were
circulated on August 24, 2021, it became obvious that the
letters were in error. A “speculative, hypothetical
possibility” that debtors would have been confused by the
form letters cannot sustain plaintiffs’ facial challenge.
Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856,
866 (9th Cir. 2009). We see no basis for enjoining the
enforcement of a state law when the law itself is valid and
enforceable, even if at some early point the Commissioner
mistakenly approved a letter that did not comply with S.B.
248.
AARGON AGENCY, INC. V. O’LAUGHLIN 31
B. Remaining Winter Factors
Because plaintiffs fail to show any likelihood of success
on any of their claims, we have no need to address any of the
remaining Winter factors.
Conclusion
We hold that the district court did not abuse its discretion
in denying Plaintiffs’ motion for a preliminary injunction.
AFFIRMED.
VANDYKE, Circuit Judge, dissenting:
In the face of a state law that prohibits a debt collector
from complying with the Fair Debt Collection Practices Act
(FDCPA) and that undermines a central purpose of the Fair
Credit Reporting Act (FCRA), the majority concludes that
Aargon Agency is unlikely to succeed on its preemption
claims.1 I disagree and, because other equitable factors favor
a preliminary injunction, I would reverse the district court’s
denial of a preliminary injunction. The majority’s position
on these two claims rests on two unwarranted beliefs and a
conflation of express preemption with conflict preemption.2
The majority’s first belief is that the FDCPA does not
preempt S.B. 248 because the notice that S.B. 248 requires
debt collectors to send (a “Section 7 Notice”) is not an action
1
For convenience, I refer to the joint plaintiff-appellants collectively as
“Aargon Agency.”
2
Because I would grant a preliminary injunction based the preemption
claims, I would not reach Aargon Agency’s constitutional claims.
32 AARGON AGENCY, INC. V. O’LAUGHLIN
in connection with collection of a debt. But that position
requires setting aside common sense. S.B. 248 requires that,
before debt collectors take certain actions to collect a
medical debt, collectors must send debtors a “Section 7
Notice” that includes certain information about the debt, and
then wait sixty days before taking any further action. The
only reason that a debt collector sends a Section 7 Notice is
so that he can later start collecting a debt. It is impossible to
imagine a situation where a debt collector would send such
a notice except in pursuit of his goal of ultimately obtaining
payment for (i.e., collecting) the debt.
The majority’s second belief is that delayed reporting of
a debtor’s failure to pay a debt does not affect the accuracy
of credit reporting. That leads the majority to conclude that
the FCRA does not impliedly preempt S.B. 248. That belief
too is unrealistic. Because S.B. 248 delays the reporting of
unpaid debts, it conflicts with the FCRA’s goal of ensuring
accurate credit information. The FCRA thus impliedly
preempts S.B. 248.
Finally, the majority conflates express preemption with
conflict preemption. In purporting to analyze Aargon
Agency’s express preemption claim under the FCRA, the
majority addresses whether S.B. 248 makes it impossible for
a debt collector to comply with both S.B. 248 and the FCRA.
But that is a conflict preemption inquiry, and the express
preemption claim is instead governed by the language of the
statute’s preemption clause.
DISCUSSION
I. The FDCPA and the FCRA Preempt S.B. 248.
“A fundamental principle of the Constitution is that
Congress has the power to preempt state law” when
AARGON AGENCY, INC. V. O’LAUGHLIN 33
exercising its enumerated powers. Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 372 (2000). Congress can
preempt state law expressly or impliedly. See id.; Kansas v.
Garcia, 140 S. Ct. 791, 801 (2020). Congress impliedly
preempts state laws that either render compliance with both
federal and state law impossible or present an obstacle to the
accomplishment of Congress’s purposes in passing a statute.
See Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 761 (9th
Cir. 2015) (quotation omitted).
The FDCPA requires debt collectors to take actions that
S.B. 248 prohibits and prohibits them from taking actions
that S.B. 248 requires. The FDCPA, accordingly, preempts
those conflicting prohibitions and requirements in S.B. 248.
The FCRA, on the other hand, preempts the entirety of S.B.
248 because the FCRA expressly preempts S.B. 248 and
because the state law frustrates the FCRA’s purposes.
A. S.B. 248 Renders Compliance with the FDCPA
Impossible.
The FDCPA expressly preempts state law that is
inconsistent with it, “to the extent of the inconsistency.” 15
U.S.C. § 1692n. Two of the provisions in S.B. 248 are
inconsistent with the FDCPA and, as such, are preempted.
First, S.B. 248 requires that a debt collector initiate
communication with a debtor before taking further action to
collect a medical debt and provide certain information about
the debt, and then take no further action for sixty days—
including sending any further notices—to collect the debt.
Yet the FDCPA requires that a debt collector include in its
“initial communication” with the debtor a so-called “mini-
Miranda warning” and to notify the debtor, within five days
of that “initial communication,” of his validation rights (in
what can be termed a “Validation Rights Notice”). See 15
34 AARGON AGENCY, INC. V. O’LAUGHLIN
U.S.C. § 1692g(a); id. § 1692e(11). Because a debt collector
cannot both comply with S.B. 248’s mandatory pause on
communications and simultaneously send the FDCPA’s
required communications, the FDCPA preempts S.B. 248’s
prohibition against a debt collector timely giving the mini-
Miranda warning and the Validation Rights Notice.
Second, because S.B. 248 obligates debt collectors to
include confusing information in communications to a
debtor, it requires collectors to violate the FDCPA’s
prohibition against using confusing or misleading
representations in their communications with debtors. The
FDCPA thus preempts S.B. 248’s requirement that debt
collectors provide such communications to debtors.
i. The FDCPA Preempts S.B. 248’s Prohibition
Against Giving Notices Required by the
FDCPA.
The FDCPA requires that debt collectors provide two
notices to debtors in, or within five days following, any
“initial communication with a [debtor] in connection with
the collection of any debt”: a mini-Miranda warning and a
Validation Rights Notice. 15 U.S.C. § 1692g(a); see also id.
§ 1692e(11).3 The mini-Miranda provision obligates a
3
The mini-Miranda provision, 15 U.S.C. § 1692e(11), contains the same
language triggering a debt collector’s notification duties as the
Validation Rights Notice provision, id. § 1692g(a), only placing the
language in different parts of the section. See id. § 1692e(11)
(prohibiting any misleading representation “in connection with the
collection of any debt” and, giving as one example, the failure to provide
the mini-Miranda warning in “the initial communication with the
[debtor]”). For convenience, when referring to the triggering language
for either the mini-Miranda or the Validation Rights Notice, I will
AARGON AGENCY, INC. V. O’LAUGHLIN 35
collector, in the “initial communication with a [debtor] in
connection with the collection of a[] debt,” to inform the
debtor that “the debt collector is attempting to collect a debt
and that any information obtained will be used for that
purpose.” Id. § 1692e(11). The Validation Rights Notice
requires that a debt collector inform a debtor within five days
of its “initial communication” that the debtor may request
verification of the debt within thirty days of the notice and
that, if he does not request verification, “the debt will be
assumed to be valid by the debt collector.” Id.
§ 1692g(a)(3), (5).
The State admits that a Section 7 Notice cannot include
a mini-Miranda warning, implicitly conceding that a mini-
Miranda warning is an “action to collect a … debt.”4 And
because S.B. 248 offers no reason to conclude that a mini-
Miranda warning is an “action to collect a … debt” while a
Validation Rights Notice is not, the State must also agree
that a Validation Rights Notice is an “action to collect
a … debt.” S.B. 248 prohibits a debt collector from taking
“any action,” such as these, “to collect a … debt” until the
collector gives a Section 7 Notice and waits sixty days. But
the FDCPA requires that the mini-Miranda and Validation
Rights Notices be given in, or within five days following,
any initial communication in connection with the collection
of a debt. 15 U.S.C. § 1692g(a); id. § 1692e(11). Unless the
simply quote from the Validation Rights Notice requirement section. See
id. § 1692g(a).
4
The State has not been completely consistent on this question. After
passage of S.B. 248, Nevada approved several form letters that debt
collectors could use to send a Section 7 Notice. Included in some of
these form letters was the mini-Miranda warning. But the State in its
more recent actions has distanced itself from these earlier approvals.
36 AARGON AGENCY, INC. V. O’LAUGHLIN
Section 7 Notice is somehow not an “initial
communication … in connection with the collection of a
debt,” the plain text of S.B. 248 and the FDCPA clash. Id.
§ 1692g(a). A debt collector cannot both initiate contact
with a debtor by providing the Section 7 Notice and then not
further contact that debtor for sixty days while also giving
the FDCPA’s required warnings within five days of that
“initial communication.”
The majority does not dispute that, if a Section 7 Notice
is an “initial communication” under the FDCPA, S.B. 248
and the FDCPA conflict. Instead, the majority concludes
that the Section 7 Notice is not an “initial
communication … in connection with the collection of a[]
debt.” 15 U.S.C. § 1692g(a). This attempt to carve an
escape hatch out from the clear conflict between the two
statutes does not hold up.
A Section 7 Notice is an “initial communication … in
connection with the collection of a[] debt.” Id. § 1692g(a).
The breadth of the FDCPA’s text makes clear that
Congress’s purpose was to require the FDCPA’s notices at
the very outset of any collection effort. The FDCPA requires
that debt collectors give the warnings within five days of an
“initial communication … in connection with the collection
of any debt.” Id. § 1692g(a) (emphasis added). As courts
have observed on many occasions, “in connection with”
indicates that Congress gave the statute a broad reach. See,
e.g., Mont v. United States, 139 S. Ct. 1826, 1832 (2019);
People of State of Cal. v. FCC, 905 F.2d 1217, 1240 (9th Cir.
1990). Congress used such broad language to ensure that the
debtor receives certain information up front whenever a debt
collector first contacts the debtor. That is why one of these
warnings is colloquially referred to as a “mini-Miranda”
warning. See, e.g., Garfield v. Ocwen Loan Servicing, LLC,
AARGON AGENCY, INC. V. O’LAUGHLIN 37
811 F.3d 86, 92 (2d Cir. 2016) (referring to the information
required by 15 U.S.C. § 1692e(11) as a “mini-Miranda”
warning). Thus, even if the collector is early in the process
when he provides a Section 7 Notice, the conclusion that he
is not communicating with the debtor “in connection with
the collection of a[] debt” ignores the clear breadth of the
FDCPA’s language. Id. § 1692g(a).
Indeed, the majority asks the reader to indulge the
obvious fiction that a debt collector sending a Section 7
Notice is doing so for some reason other than to eventually
“collect[] … a[] debt.” Id. But there is only one reason debt
collectors reach out to debtors—to collect debts. Everyone
knows that.
The silliness of pretending debt collectors would send
Section 7 Notices for any reason other than to collect a debt
is easily illustrated. Assume a debt collector in another
state—who must comply with the FDCPA but faces no legal
obligations comparable to S.B. 248—emails a debtor and
tells her that she owes a debt of a certain amount, incurred
by receiving medical services on a certain date, and that he
is a debt collector. Acting altruistically, this collector always
gives the debtor such information and then avoids taking any
further action for sixty days. In short, this hypothetical debt
collector voluntarily provides precisely what S.B. 248
requires—but just because he’s a nice guy. During the debt
collector’s voluntary sixty-day waiting period, the debtor
sues him, claiming that he never gave her the initial notices
she was entitled to receive under the FDCPA. See 15 U.S.C.
§ 1692k (permitting private actions to enforce the FDCPA).
The collector tells the judge that the FDCPA did not require
him to give those notices yet, as the email he sent the debtor
was not an “initial communication … in connection with the
collection of a[] debt”; it was just an email giving the debtor
38 AARGON AGENCY, INC. V. O’LAUGHLIN
some information before he later began to collect. Id.
§ 1692g(a).
This would be an easy case. Whatever altruistic
purposes may have motivated the collector to provide an
early notice and waiting period, his email was nonetheless
his “initial communication” with the debtor “in connection
with the collection of any debt.” Id. § 1692g(a). The
majority’s position that a Section 7 Notice does not
somehow fall within the clear text of the FDCPA’s “initial
communication” requirement is a position divorced from
reality.
The majority advances two arguments in favor of reading
a Section 7 Notice as something other than an “initial
communication … in connection with the collection of a[]
debt.” Id. First, the majority argues that, for purposes of the
mini-Miranda warning, “initial communications” are only
those communications “in which a debt collector is
attempting to collect a debt.”5 I agree. But as discussed
above, a debt collector governed by S.B. 248 who provides
a Section 7 Notice does so only because he is attempting to
collect a debt. The fact that S.B. 248 prevents him from
taking further action for sixty days following the Section 7
Notice changes nothing about why the debt collector is
contacting the debtor. A person is still attempting to obtain
something even when the satisfaction of that goal remains
far off or requires additional intermediate steps. Aspiring
law students take the LSAT because they want to become a
lawyer. The fact that they will not become a licensed
attorney immediately after they take the exam doesn’t
5
The majority does not advance this argument to rescue S.B. 248 from
conflicting with the Validation Rights Notice.
AARGON AGENCY, INC. V. O’LAUGHLIN 39
change what they are trying to accomplish in taking the test.
Likewise, if asked, any debt collector answering honestly
would explain that the only reason he would send a Section
7 Notice is so that he can collect the debt after the sixty days
expire.
The majority responds with the unilluminating point that
it is possible for a debt collector to communicate with a
debtor without the communication being “in connection with
the collection of a[] debt.” Id. § 1692g(a). Sure. Consider,
for example, a letter from a debt collector telling a debtor
that the debt is forgiven. While that would presumably
trigger celebration by the debtor, it would not trigger the
mini-Miranda warning or the Validation Rights Notice. But
the mere fact that it is possible for a communication between
a debtor and a debt collector to be not “in connection with
the collection of any debt” hardly evinces that a notice given
as a necessary prerequisite to the collector demanding
payment is anything other than such a communication.
When a debt collector issues a notice because the notice is a
legal prerequisite to the collector taking more affirmative
action to collect the debt, that notice is clearly “in connection
with the collection of a[] debt.” See Scott v. Trott L., P.C.,
760 F. App’x 387, 391 (6th Cir. 2019) (unpublished)
(explaining that a published notice required by Michigan law
before the execution of a foreclosure “qualifies under the
FDCPA as an ‘initial communication’”); cf. Romea v.
Heiberger & Assocs., 163 F.3d 111, 116 (2d Cir. 1998)
(concluding that a letter sent to a debtor was a
communication in connection with the collection of a debt,
even if the notice was also a “statutory condition precedent
to commencing a summary eviction proceeding”). Although
the majority pulls cases from several circuits in an attempt
to support its conclusion that a Section 7 Notice is not a
40 AARGON AGENCY, INC. V. O’LAUGHLIN
triggering communication under the FDCPA, none of those
cases involve a notice that is a necessary prerequisite to the
collector demanding payment. See Grden v. Leikin Ingber
& Winters PC, 643 F.3d 169, 171 (6th Cir. 2011) (involving
a response from the collector to the debtor’s request for his
account balance); Bailey v. Sec. Nat. Servicing Corp., 154
F.3d 384, 389 (7th Cir. 1998) (involving a letter “warning
that something bad might happen if payment is not kept
current”); Heinz v. Carrington Mortg. Servs., LLC, 3 F.4th
1107, 1112 (8th Cir. 2021) (involving communications
related to the debtor’s “loan modification application” and
“loss mitigation assistance application”).
Second, the majority argues that a Section 7 Notice is not
an “initial communication” because S.B. 248—state law—
purports to place the Section 7 Notice sixty days prior to a
debt collector “taking any action to collect a medical debt.”
But of course, we must look to federal law to define the
scope of federal law. Or, to put it otherwise, a state law
cannot escape its conflict with federal law by mere ipse dixit.
In short, a debt collector cannot timely provide the
FDCPA’s mandatory mini-Miranda warning or Validation
Rights Notice while complying with S.B. 248’s prohibition
against debt collectors taking “any action” to collect a debt.
Under the FDCPA, S.B. 248’s prohibition survives if it
offers “greater … protection” to consumers than the
FDCPA. See 15 U.S.C. § 1692n. It does not. Delaying the
warnings that the FDCPA mandates at the beginning of the
collection effort provides debtors less protection when they
interact with debt collectors.
Although the two laws are inconsistent, the FDCPA
preempts S.B. 248 “only to the extent” it is inconsistent with
the FDCPA. Id. The FDCPA thus preempts S.B. 248 insofar
AARGON AGENCY, INC. V. O’LAUGHLIN 41
as it prohibits the mini-Miranda warning or the Validation
Rights Notice. See Codar, Inc. v. Arizona, 95 F.3d 1156 (9th
Cir. 1996) (memorandum) (preempting Arizona law insofar
as its licensing scheme would prevent an unlicensed debt
collector from sending a Validation Rights Notice).
ii. S.B. 248 Requires Misleading Representations
in Violation of the FDCPA.
If a debtor attempts to make a voluntary payment on a
medical debt during S.B. 248’s sixty-day window following
the delivery of a Section 7 Notice, the debt collector must
inform the debtor that payment on the debt is neither “due”
nor “demanded.” S.B. 248 § 7.5(1)(b)(1). This requirement
conflicts with the FDCPA’s prohibition against debt
collectors sending misleading communications.
The FDCPA prohibits debt collectors from “us[ing]
any … deceptive[] or misleading representation … in
connection with the collection of a[] debt.” 15 U.S.C.
§ 1692e. A communication is misleading if the “least
sophisticated debtor would likely be misled by a
communication,” a standard designed to take into account
“consumers of below average sophistication or intelligence”
who are “uninformed or naive.” Gonzales v. Arrow Fin.
Servs., LLC, 660 F.3d 1055, 1061–62 (9th Cir. 2011)
(quotations omitted).
A debt collector who tells a consumer—a person who
has incurred a debt, likely already received several notices
from the creditor that payment is due or past-due, and now
received a notice from a collection agency—that no payment
is demanded or due “is likely to mislead the least-
sophisticated debtor.” Id. at 1061 n.3. That is because it is
likely that a debtor—particularly an unsophisticated one—
might think that the creditor forgave the debt or, at the very
42 AARGON AGENCY, INC. V. O’LAUGHLIN
least, wonder who she is supposed to pay: the original
medical provider or this new agency. At a minimum, the
debtor will be confused, wondering “do I have an obligation
to pay this, or not?” Maybe a more sophisticated debtor
would figure it out, but that is not the standard.
Literally ignoring that Aargon Agency argues that S.B.
248 requires “debt collectors to lie to debtors” by telling
them no payment is due, (emphasis omitted), the majority
omits any analysis of whether S.B. 248 requires a debt
collector use misleading communications in violation of the
FDCPA. Perhaps the majority assumes that the argument is
implicitly addressed in its (incorrect) conclusion that the
initial notice required by S.B. 248, the Section 7 Notice, is
not a “communication ‘in connection with the collection of
a[] debt.’” 15 U.S.C. § 1692e. But that assumption would
still be wrong. Even if the majority were right that the
Section 7 Notice itself is not an “initial communication in
connection with collection of a debt,” that would not address
whether a collector who responds to an attempt to
voluntarily pay a medical debt (an attempt itself in response
to a Section 7 Notice) is a “representation … in connection
with the collection of a[] debt.” 15 U.S.C. § 1692e. If
anything, it is even clearer that a debt collector who has been
contacted by a debtor attempting to voluntarily pay a
medical debt and sends the notice required by S.B. 248 § 7.5
is doing everything necessary to collect the debt. S.B. 248
requires debt collectors to make misleading representations.
Again, state law and the FDCPA are not inconsistent if
state law offers “greater protection” to the consumers. 15
U.S.C. § 1692n. But a communication that confuses the
least sophisticated consumer does not offer more protection
than the FDCPA’s prohibition on misleading
communications. Thus, S.B. 248’s requirement that
AARGON AGENCY, INC. V. O’LAUGHLIN 43
collectors inform debtors attempting to pay their debts that
such debts are neither demanded nor due is inconsistent with
(and preempted by) the FDCPA.
B. The FCRA Preempts S.B. 248 in Full.
Although the FDCPA only partially preempts S.B. 248,
the FCRA both expressly and impliedly preempts S.B. 248
in full. Accordingly, the majority errs in concluding Aargon
Agency is unlikely to succeed on the merits of its preemption
claims.
i. The FCRA Expressly Preempts S.B. 248.
“Express preemption arises when the text of a federal
statute explicitly manifests Congress’s intent to displace
state law.” Ass’n des Éleveurs de Canards et d’Oies du
Québec v. Bonta, 33 F.4th 1107, 1114 (9th Cir. 2022)
(internal quotations omitted). The text of the FCRA
“explicitly manifests Congress’s intent to displace state
law[s]” regulating how debt collectors report credit
information to reporting agencies. Id. The majority
disagrees, imposing a narrow construction on the provision
that the text does not support. Worse, the majority’s analysis
reveals that it has failed to ask the right question—analyzing
not whether the preemption clause covers S.B. 248 but
whether a debt collector can technically comply with both
the FCRA and S.B. 248. That is not an express preemption
analysis, however—it is a conflict preemption analysis, itself
a form of implied preemption.
The FCRA states that “[n]o requirement or prohibition
may be imposed under the laws of any State … with respect
to any subject matter regulated under … section 1681s-2 of
this title, relating to the responsibilities of persons who
furnish information to consumer reporting agencies.” 15
44 AARGON AGENCY, INC. V. O’LAUGHLIN
U.S.C. § 1681t(b)(1)(F). Because section 1681s-2 regulates
the “subject matter” of the legal responsibilities of those who
furnish credit information to Consumer Reporting Agencies
(“CRAs”) when reporting information on payment or
nonpayment of debts to CRAs, and because S.B. 248 is a
“requirement or prohibition” with respect to that subject
matter, the FCRA preempts S.B. 248.
First, section 1681s-2 regulates the “subject matter” of
the legal responsibilities of those who furnish credit
information to CRAs when reporting information to CRAs
on payment or nonpayment of debts. Section 1681s-2
requires, inter alia, that information-furnishers not
knowingly furnish inaccurate information to CRAs; that they
correct any inaccurate information that they reported to
CRAs; and, if a consumer disputes information, that the
furnisher inform the CRA that the information is disputed.
See id. § 1681s-2(a)(1)–(3). These are all rules on how and
when information-furnishers must report information and
what information they must not report (e.g., inaccurate
information). The “subject matter” regulated under this
section is thus information-furnishers’ legal duties when
reporting payment or nonpayment of debts.
Second, the “subject matter” S.B. 248 regulates is “with
respect to” how furnishers of information report information
on delinquent accounts. When a debt collector wants to
report a debt to a CRA—thus operating as an information-
furnisher—S.B. 248 requires that he first issue a Section 7
Notice and then wait sixty days before he can finally report
the debt. S.B. 248 § 7(1). Because “with respect to,” when
used “in a legal context generally has a broadening effect,
ensuring that the scope of a provision covers not only its
subject but also matters relating to that subject,” S.B. 248 is
clearly a law “with respect to” the “subject matter” regulated
AARGON AGENCY, INC. V. O’LAUGHLIN 45
under section 1681s-2. See Lamar, Archer & Cofrin, LLP v.
Appling, 138 S. Ct. 1752, 1760 (2018) (examining the scope
of “respecting”).
The majority nevertheless concludes that the FCRA’s
preemption provision is narrow and does not cover S.B. 248.
The majority’s argument boils down to two points: (1)
reliance on an inapposite Supreme Court decision and (2) the
fact that, under something like a conflict preemption
analysis, a debt collector could comply with both S.B. 248
and the FCRA. The Supreme Court decision the majority
relies on, however, does not support its conclusion. And the
majority’s quasi-conflict preemption analysis tells little
about whether the FCRA expressly preempts S.B. 248.
In its first argument, the majority relies on the Supreme
Court’s decision in Dan’s City Used Cars, Inc. v. Pelkey for
the proposition that the phrase “with respect to” “massively
limits the scope of preemption” to just those state laws that
“concern” the referents of the phrase. 569 U.S. 251, 261
(2013). If this were an accurate reading of Dan’s City Used
Cars, it would put that case in direct tension with other cases
that have read the same, or materially identical, phrase “with
respect to” as having a broadening, not narrowing, effect.
See, e.g., Lamar, Archer & Cofrin, LLP, 138 S. Ct. at 1760;
United States v. Tohono O’Odham Nation, 563 U.S. 307,
312 (2011) (reasoning that “[t]he phrase ‘in respect to,’”
within a jurisdictional bar against certain claims, “suggests a
broad prohibition”); see also Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 383 (1992) (emphasizing that
the phrase “‘relating to’ … express[es] a broad pre-emptive
purpose”); Sorosky v. Burroughs Corp., 826 F.2d 794, 799
(9th Cir. 1987) (“Congress intended that the words ‘relate
to’ be interpreted broadly.” (citations omitted)). But Dan’s
City Used Cars is not actually at odds with those cases.
46 AARGON AGENCY, INC. V. O’LAUGHLIN
Instead, the majority misreads a quote from Dan’s City Used
Cars and thus misapplies the case.
In Dan’s City Used Cars, the Court contrasted two
preemption provisions. See id. at 260–61. One provision,
the Airline Deregulation Act’s (ADA) preemption clause,
preempted all state laws so long as a single requirement was
met: the law had to relate to a “price, route, or service of an
air carrier.” Id. at 256. In contrast, the other provision, the
Federal Aviation Administration Authorization Act’s
(FAAAA) preemption clause, required that two
requirements be met before a state law was preempted: the
law had to (1) “relate[] to a price, route, or service of any
motor carrier,” and (2) the “price, route, or service of any
motor carrier” had to be “with respect to the transportation
of property.” Id. at 260–61.
In contrasting the two preemption provisions, the Court
offered the straightforward observation that the addition of
the second requirement in the FAAAA preemption provision
“massively limits the scope of preemption” of that provision
in comparison to the ADA’s preemption provision—not
because “with respect to” carries some inherent limiting
meaning but because the FAAAA reduced the scope of
preemption vis-à-vis the ADA by doubling the boxes a law
must check before it is preempted. Id. at 261 (quotation
omitted).
The majority states the Court declared that the phrase
“with respect to” itself “massively limits the scope of
preemption,” but the phrase “with respect to” had nothing to
do with the Court’s analysis. The Court was focused on the
addition of a second requirement for preemption, and
particularly the substance of that requirement. As the Court
put it, “it is not sufficient that a state law relates to the ‘price,
AARGON AGENCY, INC. V. O’LAUGHLIN 47
route, or service’ of a motor carrier in any capacity; the law
must also concern a motor carrier’s ‘transportation of
property.’” Id. (emphasis added) (citing Pelkey v. Dan’s
City Used Cars, 163 N.H. 483, 490 (2012)). The fact that
the Court’s restatement of the FAAAA’s second preemption
requirement substituted the word “concern” for “with
respect to” underscores that the Court’s analysis had nothing
to do with the precise contours of the phrase “with respect
to.” Id. Instead, the Court was emphasizing that the
FAAAA’s additional requirement that the law concern—or,
to use any other fungible synonym, “relate to,” “regard,”
“respect,” “be about,” etc.—the “transportation of property”
is what greatly decreased the provision’s preemptive scope,
not the mere phrase “with respect to.”
Rather than support an artificially narrow reading of the
FCRA’s preemption provision, Dan’s City Used Cars
supports giving that provision its ordinary textual meaning
here. In contrast to the FAAAA’s preemption provision, the
FCRA’s preemption clause does not contain multiple
substantive limitations that work together to “massively
limit[]” its scope. Dan’s City Used Cars, 569 U.S. at 261.
The FCRA’s preemption provision instead contains only one
relevant limitation on what state laws are preempted: the law
must be “with respect to any subject matter regulated under
section 1681s-2.” 15 U.S.C. § 1681t(b)(1)(F). Indeed, with
its single prerequisite to preemption, the FCRA’s
preemption clause is more like the ADA’s preemption clause
than the FAAAA’s, a clause which the Supreme Court
described as “express[ing] a broad pre-emptive purpose.”
Morales, 504 U.S. at 384.6 In short, nothing in Dan’s City
6
Although Morales considered a provision preempting laws “relating
to” certain matters and the FCRA preempts laws “with respect to” certain
48 AARGON AGENCY, INC. V. O’LAUGHLIN
Used Cars requires that the mere phrase “with respect to” be
given an unnaturally crabbed reading in a context like this
case.
Just as bad as its flawed reliance on Dan’s City Used
Cars, the majority’s second argument reveals that the
majority has set itself to the wrong task. The majority
contends that S.B. 248 is not preempted because Ҥ 1681s-2
nowhere sets out a deadline for when furnishers must report
a debt to a CRA.” The majority’s point is that, because the
FCRA does not impose a specific timeline for when a debt
collector must report a debt to a CRA, a collector can comply
both with the FCRA’s demands and the demands of S.B.
248. But even assuming the majority is right, that analysis
would belong to a conflict preemption claim, where a
plaintiff can show that a state law is impliedly preempted
because it “is impossible for a private party to comply with
both state and federal requirements,” Editions Ltd. W., Inc.,
786 F.3d at 761. The claim, however, that the majority is
purporting to analyze is an express preemption claim. For
an express preemption claim, we look at the text of the
preemption provision to determine if Congress intended to
preempt the challenged state law. That text makes clear that
S.B. 248, as a law “with respect to” the same subject matter
regulated by section 1681s-2, is expressly preempted by the
FCRA. See 15 U.S.C. § 1681t(b)(1)(F).
matters, 504 U.S. at 384 (emphasis added), the Supreme Court has
elsewhere treated “relating to” and “respecting” as synonyms. See
Lamar, Archer & Cofrin, LLP, 138 S. Ct. at 1760 (noting that “relating
to” “is one of the meanings of ‘respecting’”).
AARGON AGENCY, INC. V. O’LAUGHLIN 49
ii. S.B. 248 Undermines the Purposes of the
FCRA and Is thus Impliedly Preempted.
The FCRA also impliedly preempts S.B. 248. Federal
law impliedly preempts state law when the state law “stands
as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.” In re Volkswagen
“Clean Diesel” Mktg., Sales Pracs., & Prods. Liab. Litig.,
959 F.3d 1201, 1212 (9th Cir. 2020) (quotations and
subsequent history omitted). To determine Congress’s
purpose in enacting a statute, courts “examin[e] the federal
statute as a whole and identif[y] its purpose and intended
effects.” Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1179–
80 (9th Cir. 2016) (quotation marks and citation omitted).
Determining whether state law frustrates the purposes of
Congress is “a matter of judgment,” decided by reference to
whether the act would be “refused [its] natural effect.”
Crosby, 530 U.S. at 373 (quoting Savage v. Jones, 225 U.S.
501, 533 (1912)).
Congress was clear about its purposes in passing the
FCRA. The law itself states that “[t]he banking system is
dependent upon fair and accurate credit reporting” and that
“[i]naccurate credit reports directly impair the efficiency of
the banking system.” 15 U.S.C. § 1681(a)(1). Because the
banking system depends on “accurate” credit reporting and
because consumers depend on fair systems of credit
reporting, Congress set up an “elaborate mechanism … for
investigating and evaluating the credit worthiness, credit
standing, credit capacity, character, and general reputation
of consumers.” Id. § 1681(a)(1)–(2). As the Supreme Court
has observed, “Congress enacted [the] FCRA in 1970 to
ensure fair and accurate credit reporting.” Safeco Ins. Co.
of Am. v. Burr, 551 U.S. 47, 52 (2007) (emphasis added).
50 AARGON AGENCY, INC. V. O’LAUGHLIN
S.B. 248 undermines accuracy in credit reporting,
placing itself in the way of the “accomplishment and
execution of the full purposes and objectives of Congress.”
In re Volkswagen, 959 F.3d at 1212 (quotations omitted). As
the State acknowledges, S.B. 248 prevents debt collectors
from reporting medical debts until they have given the
Section 7 Notice and waited sixty days.7 S.B. 248 thus
creates a sixty-day delay in which creditors hoping to learn
about a Nevada debtor’s creditworthiness operate in limbo.
The “natural effect” of such a delay is to decrease the
accuracy of credit information. Crosby, 530 U.S. at 373.
The relationship between delay and inaccuracy should be
self-evident, but a simple hypothetical easily illustrates it. If
a state law required a one-year delay before reporting
defaults on a debt, no one would deny that the accuracy of
credit reporting would suffer from that delay. A sixty-day
delay contributes to the same type, if not magnitude, of
inaccuracy. See Lands Council v. Powell, 395 F.3d 1019,
1036 (9th Cir. 2005) (recognizing that outdated data, inter
alia, rendered a database “inaccurate”); see also Guimond v.
Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir.
1995) (explaining that a goal of Congress in enacting the
FCRA was “establish[ing] credit reporting practices that
utilize … current information” (emphasis added)).
The majority hypothesizes that such delay is a desirable
feature, not a bug, of an accurate credit reporting system.
According to the majority, requiring sixty days for medical
debtors to verify the debt “may … improve the accuracy of
7
And the concession makes sense, as the State can offer little argument
for the conclusion that a debt collector reporting a debt to a CRA is taking
that action for any purpose other than “to collect a … debt.” S.B. 248
§ 7(1).
AARGON AGENCY, INC. V. O’LAUGHLIN 51
the information that debt collectors furnish to CRAs.” But
the majority’s reasoning consists of one conclusory sentence
and no factual or legal support. The FCRA already offers
robust mechanisms for consumers to correct inaccurate debt
information. See 15 U.S.C. § 1681s-2(a)–(b). Those
mechanisms ensure that debtors can correct inaccurate
information in credit reports, obtaining a similar benefit as
the majority speculates might be obtained by S.B. 248’s
delay, but without the burden of a delay in debt-reporting.
And neither the majority nor the State cite any evidence (or
advance any argument) suggesting that debt collectors who
comply with the FCRA’s regulations inaccurately report
debts with any substantial frequency. The majority’s
suggestion that S.B. 248 may increase accuracy is thus based
on pure conjecture.
In short, S.B. 248’s mandatory sixty-day delay in credit
reporting stands as an obstacle to the accomplishment of
Congress’s “accuracy” goals in the FCRA. The FCRA lacks
a waiting period comparable to the one Nevada seeks to
impose in S.B. 248. We can infer from that omission,
together with the considered judgment Congress made in
passing the FCRA, that a waiting period causing financial
institutions to suffer delayed (and thus inaccurate)
assessments of Nevada residents’ medical debt “would be
inconsistent with federal policy and objectives.” Arizona v.
United States, 567 U.S. 387, 405 (2012); see also Int’l Paper
Co. v. Ouellette, 479 U.S. 481, 494 (1987) (“A state law also
is pre-empted if it interferes with the methods by which the
federal statute was designed to reach [its] goal.”). S.B. 248
is thus preempted under the Supremacy Clause.
52 AARGON AGENCY, INC. V. O’LAUGHLIN
II. The District Court Erred in Its Analysis of the
Remaining Factors for a Preliminary Injunction.
To be entitled to a preliminary injunction, Aargon
Agency must also show that, absent a preliminary injunction,
it is likely to suffer irreparable harm and that both the
balance of equities and the public interest weigh in favor of
a preliminary injunction. See Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). Aargon Agency will
suffer irreparable harm when it must choose between
complying with an unconstitutional (here, preempted) law
that causes it financial harm or refusing to comply and being
punished for doing so. See Morales, 504 U.S. at 381; Am.
Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,
1057–59 (9th Cir. 2009). And the balance of equities and
the public interest weigh in favor of enjoining S.B. 248, a
law that both makes compliance with the FDCPA impossible
and undermines Congress’s purposes in enacting the FCRA
by decreasing the accuracy of credit reporting. See Am.
Trucking Ass’ns, Inc., 559 F.3d at 1059–60. Accordingly, I
would have concluded that these factors weigh in favor of a
preliminary injunction.
CONCLUSION
Because the majority errs in concluding that Aargon
Agency is unlikely to succeed on the merits of its preemption
claims and thus affirms the district court’s denial of a
preliminary injunction, I respectfully dissent.