Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A. , 130 S. Ct. 1605 ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JERMAN v. CARLISLE, MCNELLIE, RINI, KRAMER &
ULRICH LPA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 08–1200. Argued January 13, 2010—Decided April 21, 2010
The Fair Debt Collection Practices Act (FDCPA), 15 U. S. C. §1692 et
seq., imposes civil liability on “debt collector[s]” for certain prohibited
debt collection practices. A debt collector who “fails to comply with
any [FDCPA] provision . . . with respect to any person is liable to
such person” for “actual damage[s],” costs, “a reasonable attorney’s
fee as determined by the court,” and statutory “additional damages.”
§1692k(a). In addition, violations of the FDCPA are deemed unfair or
deceptive acts or practices under the Federal Trade Commission Act
(FTC Act), §41 et seq., which is enforced by the Federal Trade Com
mission (FTC). See §1692l. A debt collector who acts with “actual
knowledge or knowledge fairly implied on the basis of objective cir
cumstances that such act is [prohibited under the FDCPA]” is subject
to civil penalties enforced by the FTC. §§45(m)(1)(A), (C). A debt col
lector is not liable in any action brought under the FDCPA, however,
if it “shows by a preponderance of evidence that the violation was not
intentional and resulted from a bona fide error notwithstanding the
maintenance of procedures reasonably adapted to avoid any such er
ror.” §1692k(c).
Respondents, a law firm and one of its attorneys (collectively Car
lisle), filed a lawsuit in Ohio state court on behalf of a mortgage com
pany to foreclose a mortgage on real property owned by petitioner
Jerman. The complaint included a notice that the mortgage debt
would be assumed valid unless Jerman disputed it in writing. Jer
man’s lawyer sent a letter disputing the debt, and, when the mort
gage company acknowledged that the debt had in fact been paid, Car
lisle withdrew the suit. Jerman then filed this action, contending
that by sending the notice requiring her to dispute the debt in writ
2 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
Syllabus
ing, Carlisle had violated §1692g(a) of the FDCPA, which governs the
contents of notices to debtors. The District Court, acknowledging a
division of authority on the question, held that Carlisle had violated
§1692g(a) but ultimately granted Carlisle summary judgment under
§1692k(c)’s “bona fide error” defense. The Sixth Circuit affirmed,
holding that the defense in §1692k(c) is not limited to clerical or fac
tual errors, but extends to mistakes of law.
Held: The bona fide error defense in §1692k(c) does not apply to a viola
tion resulting from a debt collector’s mistaken interpretation of the
legal requirements of the FDCPA. Pp. 6–30.
(a) A violation resulting from a debt collector’s misinterpretation of
the legal requirements of the FDCPA cannot be “not intentional” un
der §1692k(c). It is a common maxim that “ignorance of the law will
not excuse any person, either civilly or criminally.” Barlow v. United
States, 7 Pet. 404, 411. When Congress has intended to provide a
mistake-of-law defense to civil liability, it has often done so more ex
plicitly than here. In particular, the administrative-penalty provi
sions of the FTC Act, which are expressly incorporated into the
FDCPA, apply only when a debt collector acts with “actual knowledge
or knowledge fairly implied on the basis of objective circumstances”
that the FDCPA prohibited its action. §§45(m)(1)(A), (C). Given the
absence of similar language in §1692k(c), it is fair to infer that Con
gress permitted injured consumers to recover damages for “inten
tional” conduct, including violations resulting from a mistaken inter
pretation of the FDCPA, while reserving the more onerous
administrative penalties for debt collectors whose intentional actions
reflected knowledge that the conduct was prohibited. Congress also
did not confine FDCPA liability to “willful” violations, a term more of
ten understood in the civil context to exclude mistakes of law. See,
e.g., Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 125–126.
Section 1692k(c)’s requirement that a debt collector maintain “proce
dures reasonably adapted to avoid any such error” also more natu
rally evokes procedures to avoid mistakes like clerical or factual er
rors. Pp. 6–12.
(b) Additional support for this reading is found in the statute’s con
text and history. The FDCPA’s separate protection from liability for
“any act done or omitted in good faith in conformity with any [FTC]
advisory opinion,” §1692k(e), is more obviously tailored to the con
cern at issue (excusing civil liability when the FDCPA’s prohibitions
are uncertain) than the bona fide error defense. Moreover, in enact
ing the FDCPA in 1977, Congress copied the pertinent portions of the
bona fide error defense from the Truth in Lending Act (TILA),
§1640(c). At that time, the three Federal Courts of Appeals to have
considered the question interpreted the TILA provision as referring
Cite as: 559 U. S. ____ (2010) 3
Syllabus
to clerical errors, and there is no reason to suppose Congress dis
agreed with those interpretations when it incorporated TILA’s lan
guage into the FDCPA. Although in 1980 Congress amended the de
fense in TILA, but not in the FDCPA, to exclude errors of legal
judgment, it is not obvious that amendment changed the scope of the
TILA defense in a way material here, given the prior uniform judicial
interpretation of that provision. It is also unclear why Congress
would have intended the FDCPA’s defense to be broader than TILA’s,
and Congress has not expressly included mistakes of law in any of
the parallel bona fide error defenses elsewhere in the U. S. Code.
Carlisle’s reading is not supported by Heintz v. Jenkins, 514 U. S.
291, 292, which had no occasion to address the overall scope of the
FDCPA bona fide error defense, and which did not depend on the
premise that a misinterpretation of the requirements of the FDCPA
would fall under that provision. Pp. 13–22.
(c) Today’s decision does not place unmanageable burdens on debt
collecting lawyers. The FDCPA contains several provisions expressly
guarding against abusive lawsuits, and gives courts discretion in cal
culating additional damages and attorney’s fees. Lawyers have re
course to the bona fide error defense in §1692k(c) when a violation
results from a qualifying factual error. To the extent the FDCPA im
poses some constraints on a lawyer’s advocacy on behalf of a client, it
is not unique; lawyers have a duty, for instance, to comply with the
law and standards of professional conduct. Numerous state con
sumer protection and debt collection statutes contain bona fide error
defenses that are either silent as to, or expressly exclude, legal er
rors. To the extent lawyers face liability for mistaken interpretations
of the FDCPA, Carlisle and its amici have not shown that “the result
[will be] so absurd as to warrant” disregarding the weight of textual
authority. Heintz, supra, at 295. Absent such a showing, arguments
that the FDCPA strikes an undesirable balance in assigning the risks
of legal misinterpretation are properly addressed to Congress.
Pp. 22–30.
538 F. 3d 469, reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, THOMAS, GINSBURG, and BREYER, JJ., joined.
BREYER, J., filed a concurring opinion. SCALIA, J., filed an opinion con
curring in part and concurring in the judgment. KENNEDY, J., filed a
dissenting opinion, in which ALITO, J., joined.
Cite as: 559 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1200
_________________
KAREN L. JERMAN, PETITIONER v. CARLISLE, MC-
NELLIE, RINI, KRAMER & ULRICH LPA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 21, 2010]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
The Fair Debt Collection Practices Act (FDCPA or Act)
imposes civil liability on “debt collector[s]” for certain
prohibited debt collection practices. Section 813(c) of the
Act, 15 U. S. C. §1692k(c), provides that a debt collector is
not liable in an action brought under the Act if she can
show “the violation was not intentional and resulted from
a bona fide error notwithstanding the maintenance of
procedures reasonably adapted to avoid any such error.”
This case presents the question whether the “bona fide
error” defense in §1692k(c) applies to a violation resulting
from a debt collector’s mistaken interpretation of the legal
requirements of the FDCPA. We conclude it does not.
I
A
Congress enacted the FDCPA in 1977, 91 Stat. 874, to
eliminate abusive debt collection practices, to ensure that
debt collectors who abstain from such practices are not
competitively disadvantaged, and to promote consistent
state action to protect consumers. 15 U. S. C. §1692(e).
The Act regulates interactions between consumer debtors
2 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
Opinion of the Court
and “debt collector[s],” defined to include any person who
“regularly collects . . . debts owed or due or asserted to be
owed or due another.” §§1692a(5), (6). Among other
things, the Act prohibits debt collectors from making false
representations as to a debt’s character, amount, or legal
status, §1692e(2)(A); communicating with consumers at an
“unusual time or place” likely to be inconvenient to the
consumer, §1692c(a)(1); or using obscene or profane lan
guage or violence or the threat thereof, §§1692d(1), (2).
See generally §§1692b–1692j; Heintz v. Jenkins, 514 U. S.
291, 292–293 (1995).
The Act is enforced through administrative action and
private lawsuits. With some exceptions not relevant here,
violations of the FDCPA are deemed to be unfair or decep
tive acts or practices under the Federal Trade Commission
Act (FTC Act), 15 U. S. C. §41 et seq., and are enforced by
the Federal Trade Commission (FTC). See §1692l. As a
result, a debt collector who acts with “actual knowledge or
knowledge fairly implied on the basis of objective circum
stances that such act is [prohibited under the FDCPA]” is
subject to civil penalties of up to $16,000 per day.
§§45(m)(1)(A), (C); 74 Fed. Reg. 858 (2009) (amending 16
CFR §1.98(d)).
The FDCPA also provides that “any debt collector who
fails to comply with any provision of th[e] [Act] with re
spect to any person is liable to such person.” 15 U. S. C.
§1692k(a). Successful plaintiffs are entitled to “actual
damage[s],” plus costs and “a reasonable attorney’s fee as
determined by the court.” Ibid. A court may also award
“additional damages,” subject to a statutory cap of $1,000
for individual actions, or, for class actions, “the lesser of
$500,000 or 1 per centum of the net worth of the debt
collector.” §1692k(a)(2). In awarding additional damages,
the court must consider “the frequency and persistence of
[the debt collector’s] noncompliance,” “the nature of such
noncompliance,” and “the extent to which such noncompli
Cite as: 559 U. S. ____ (2010) 3
Opinion of the Court
ance was intentional.” §1692k(b).
The Act contains two exceptions to provisions imposing
liability on debt collectors. Section 1692k(c), at issue here,
provides that
“[a] debt collector may not be held liable in any action
brought under [the FDCPA] if the debt collector shows
by a preponderance of evidence that the violation was
not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures rea
sonably adapted to avoid any such error.”
The Act also states that none of its provisions imposing
liability shall apply to “any act done or omitted in good
faith in conformity with any advisory opinion of the [Fed
eral Trade] Commission.” §1692k(e).
B
Respondents in this case are a law firm, Carlisle,
McNellie, Rini, Kramer & Ulrich, L. P. A., and one of its
attorneys, Adrienne S. Foster (collectively Carlisle). In
April 2006, Carlisle filed a complaint in Ohio state court
on behalf of a client, Countrywide Home Loans, Inc.
Carlisle sought foreclosure of a mortgage held by Coun
trywide in real property owned by petitioner Karen L.
Jerman. The complaint included a “Notice,” later served
on Jerman, stating that the mortgage debt would be as
sumed to be valid unless Jerman disputed it in writing.
Jerman’s lawyer sent a letter disputing the debt, and
Carlisle sought verification from Countrywide. When
Countrywide acknowledged that Jerman had, in fact,
already paid the debt in full, Carlisle withdrew the fore
closure lawsuit.
Jerman then filed her own lawsuit seeking class certifi
cation and damages under the FDCPA, contending that
Carlisle violated §1692g by stating that her debt would be
4 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
Opinion of the Court
assumed valid unless she disputed it in writing.1 While
acknowledging a division of authority on the question, the
District Court held that Carlisle had violated §1692g by
requiring Jerman to dispute the debt in writing. 464
F. Supp. 2d 720, 722–725 (ND Ohio 2006).2 The court
ultimately granted summary judgment to Carlisle, how
ever, concluding that §1692k(c) shielded it from liability
because the violation was not intentional, resulted from a
bona fide error, and occurred despite the maintenance of
procedures reasonably adapted to avoid any such error.
502 F. Supp. 2d 686, 695–697 (ND Ohio 2007). The Court
of Appeals for the Sixth Circuit affirmed. 538 F. 3d 469(2008). Acknowledging that the Courts of Appeals are
divided regarding the scope of the bona fide error defense,
and that the “majority view is that the defense is available
for clerical and factual errors only,” the Sixth Circuit
nonetheless held that §1692k(c) extends to “mistakes of
law.” Id., at 473–476 (internal quotation marks omitted).
The Court of Appeals found “nothing unusual” about
attorney debt collectors maintaining “procedures” within
the meaning of §1692k(c) to avoid mistakes of law. Id., at
476. Noting that a parallel bona fide error defense in the
——————
1 Section 1692g(a)(3) requires a debt collector, within five days of an
“initial communication” about the collection of a debt, to send the
consumer a written notice containing, inter alia, “a statement that
unless the consumer, within thirty days after receipt of the notice,
disputes the validity of the debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector.”
2 The District Court distinguished, for instance, Graziano v. Harrison,
950 F. 2d 107, 112 (CA3 1991), which held a consumer’s dispute of a
debt under §1692g must be in writing to be effective. Noting that
district courts within the Sixth Circuit had reached different results,
and distinguishing one unpublished Sixth Circuit decision which
Carlisle suggested approved a form with an in-writing requirement, the
court adopted the reasoning from Camacho v. Bridgeport Financial,
Inc., 430 F. 3d 1078, 1080–1082 (CA9 2005), and held that the plain
language of §1692g does not impose an “in writing” requirement on
consumers. See 464 F. Supp. 2d, at 725.
Cite as: 559 U. S. ____ (2010) 5
Opinion of the Court
Truth in Lending Act (TILA), 15 U. S. C. §1640(c), ex
pressly excludes legal errors, the court observed that
Congress has amended the FDCPA several times since
1977 without excluding mistakes of law from §1692k(c).
538 F. 3d, at 476.3
We granted certiorari to resolve the conflict of authority
as to the scope of the FDCPA’s bona fide error defense,4
557 U. S. ___ (2009), and now reverse the judgment of the
Sixth Circuit.
——————
3 Because the question was not raised on appeal, the Court of Appeals
did not address whether Carlisle’s inclusion of the “in writing” re
quirement violated §1692g. 538 F. 3d, at 472, n. 2. We likewise ex
press no view about whether inclusion of an “in writing” requirement in
a notice to a consumer violates §1692g, as that question was not pre
sented in the petition for certiorari. Compare Graziano, supra, at 112(reading §1692g(a)(3) to require that “any dispute, to be effective, must
be in writing”), with Camacho, supra, at 1082 (under §1692g(a)(3),
“disputes need not be made in writing”).
4 Compare, e.g., 538 F. 3d, at 476 (case below), with Baker v. G. C.
Servs. Corp., 677 F. 2d 775, 779 (CA9 1982), and Hulshizer v. Global
Credit Servs., Inc., 728 F. 2d 1037, 1038 (CA8 1984) (per curiam).
The Courts of Appeals have also expressed different views about
whether 15 U. S. C. §1692k(c) applies to violations of the FDCPA
resulting from a misinterpretation of the requirements of state law.
Compare Johnson v. Riddle, 305 F. 3d 1107, 1121 (CA10 2002) (con
cluding that §1692k(c) applies where a debt collector’s misinterpreta
tion of a Utah dishonored check statute resulted in a violation of
§1692f(1), which prohibits collection of any amount not “permitted by
law”), with Picht v. Jon R. Hawks, Ltd., 236 F. 3d 446, 451–452 (CA8
2001) (stating that §1692k(c) does not preclude FDCPA liability result
ing from a creditor’s mistaken legal interpretation of a Minnesota
garnishment statute). The parties disagree about whether §1692k(c)
applies when a violation results from a debt collector’s misinterpreta
tion of the legal requirements of state law or federal law other than the
FDCPA. Compare Brief for Petitioner 47–49, with Brief for Respon
dents 60–62. Because this case involves only an alleged misinterpreta
tion of the requirements of the FDCPA, we need not, and do not, reach
those other questions.
6 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
Opinion of the Court
II
A
The parties disagree about whether a “violation” result
ing from a debt collector’s misinterpretation of the legal
requirements of the FDCPA can ever be “not intentional”
under §1692k(c). Jerman contends that when a debt
collector intentionally commits the act giving rise to the
violation (here, sending a notice that included the “in
writing” language), a misunderstanding about what the
Act requires cannot render the violation “not intentional,”
given the general rule that mistake or ignorance of law is
no defense. Carlisle and the dissent, in contrast, argue
that nothing in the statutory text excludes legal errors
from the category of “bona fide error[s]” covered by
§1692k(c) and note that the Act refers not to an uninten
tional “act” but rather an unintentional “violation.” The
latter term, they contend, evinces Congress’ intent to
impose liability only when a party knows its conduct is
unlawful. Carlisle urges us, therefore, to read §1692k(c) to
encompass “all types of error,” including mistakes of law.
Brief for Respondents 7.
We decline to adopt the expansive reading of §1692k(c)
that Carlisle proposes. We have long recognized the
“common maxim, familiar to all minds, that ignorance of
the law will not excuse any person, either civilly or crimi
nally.” Barlow v. United States, 7 Pet. 404, 411 (1833)
(opinion for the Court by Story, J.); see also Cheek v.
United States, 498 U. S. 192, 199 (1991) (“The general rule
that ignorance of the law or a mistake of law is no defense
to criminal prosecution is deeply rooted in the American
legal system”).5 Our law is therefore no stranger to the
——————
5 The
dissent discounts the relevance of the principle here, on grounds
that this case involves the scope of a statutory exception to liability,
rather than a provision “delineat[ing] a category of prohibited conduct.”
Post, at 15 (opinion of KENNEDY, J.). That is a distinction without a
Cite as: 559 U. S. ____ (2010) 7
Opinion of the Court
possibility that an act may be “intentional” for purposes of
civil liability, even if the actor lacked actual knowledge
that her conduct violated the law. In Kolstad v. American
Dental Assn., 527 U. S. 526 (1999), for instance, we ad
dressed a provision of the Civil Rights Act of 1991 author
izing compensatory and punitive damages for “intentional
——————
difference, as our precedents have made clear for more than 175 years.
Barlow involved a statute providing for forfeiture of any goods entered
“by a false denomination” in the office of a customs collector “for the
benefit of drawback or bounty upon the exportation”; the statute
included, however, an exception under which “said forfeiture shall not
be incurred, if it shall be made appear . . . that such false denomination
. . . happened by mistake or accident, and not from any intention to
defraud the revenue.” 7 Pet., at 406; see also Act of Mar. 2, 1799, §84, 1
Stat. 694. The Court concluded that the shipment at issue, entered as
“refined sugars,” was mislabeled under the prevailing meaning of that
term and thus was subject to forfeiture “unless the [petitioner] c[ould]
bring himself within the exceptio[n].” 7 Pet., at 409–410. As there had
been no “accident” or “mistake” of fact, the “only mistake, if there ha[d]
been any, [wa]s a mistake of law.” Id., at 410–411. The Court observed
that the shipper’s conduct, even if “entirely compatible with good faith,
[wa]s not wholly free from the suspicion of an intention to overreach . . .
by passing off, as refined sugars, what he well knew were not admitted
to be such.” Id., at 411. But the Court declined to resolve the case on
the ground of the shipper’s intent, instead invoking the “common
maxim, familiar to all minds, that ignorance of the law will not excuse
any person, either civilly or criminally.” Ibid. Notwithstanding the
existence of a statutory exception—which did not expressly exclude
legal errors from the category of “mistake[s]” made without “intention
to defraud”—the Court saw “not the least reason to suppose that the
legislature, in this enactment, had any intention to supersede the
common principle.” Ibid.The dissent implies Barlow is too old to be relevant. Post, at 16. But
at least in the context of stare decisis, this Court has suggested prece
dents tend to gain, not lose, respect with age. See Montejo v. Louisi
ana, 556 U. S. ___, ___ (2009) (slip op., at 13). In any event, Justice
Story’s opinion for a unanimous Court in Barlow is hardly a relic. As
recently as 1994 this Court cited it for the “venerable principle” that
ignorance of the law generally is no defense. Ratzlaf v. United States,
510 U. S. 135, 149; see also Cheek v. United States, 498 U. S. 192, 199
(1991) (citing Barlow for a similar proposition).
8 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
Opinion of the Court
discrimination,” 42 U. S. C. §1981a, but limiting punitive
damages to conduct undertaken “with malice or with
reckless indifference to the federally protected rights of an
aggrieved individual,” §1981a(b)(1). We observed that in
some circumstances “intentional discrimination” could
occur without giving rise to punitive damages liability,
such as where an employer is “unaware of the relevant
federal prohibition” or acts with the “distinct belief that its
discrimination is lawful.” 527 U. S., at 536–537. See also
W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and
Keeton on Law of Torts 110 (5th ed. 1984) (“[I]f one inten
tionally interferes with the interests of others, he is often
subject to liability notwithstanding the invasion was made
under an erroneous belief as to some . . . legal matter that
would have justified the conduct”); Restatement (Second)
of Torts §164, and Comment e (1963–1964) (intentional
tort of trespass can be committed despite the actor’s
mistaken belief that she has a legal right to enter the
property).6
Likely for this reason, when Congress has intended to
provide a mistake-of-law defense to civil liability, it has
often done so more explicitly than here. In particular, the
FTC Act’s administrative-penalty provisions—which, as
noted above, Congress expressly incorporated into the
FDCPA—apply only when a debt collector acts with “ac
tual knowledge or knowledge fairly implied on the basis of
objective circumstances” that its action was “prohibited by
——————
6 Different considerations apply, of course, in interpreting criminal
statutes. Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 57–58, n. 9
(2007). But even in that context, we have not consistently required
knowledge that the offending conduct is unlawful. See, e.g., Ellis v.
United States, 206 U. S. 246, 255, 257 (1907) (observing, in the context
of a statute imposing liability for “intentiona[l] violat[ions],” that “[i]f a
man intentionally adopts certain conduct in certain circumstances
known to him, and that conduct is forbidden by the law under those
circumstances, he intentionally breaks the law in the only sense in
which the law ever considers intent”).
Cite as: 559 U. S. ____ (2010) 9
Opinion of the Court
[the FDCPA].” 15 U. S. C. §§45(m)(1)(A), (C). Given the
absence of similar language in §1692k(c), it is a fair infer
ence that Congress chose to permit injured consumers to
recover actual damages, costs, fees, and modest statutory
damages for “intentional” conduct, including violations
resulting from mistaken interpretation of the FDCPA,
while reserving the more onerous penalties of the FTC Act
for debt collectors whose intentional actions also reflected
“knowledge fairly implied on the basis of objective circum
stances” that the conduct was prohibited. Cf. 29 U. S. C.
§260 (authorizing courts to reduce liquidated damages
under the Portal-to-Portal Act of 1947 if an employer
demonstrates that “the act or omission giving rise to such
action was in good faith and that he had reasonable
grounds for believing that his act or omission was not a
violation of the Fair Labor Standards Act of 1938”); 17
U. S. C. §1203(c)(5)(A) (provision of Digital Millennium
Copyright Act authorizing court to reduce damages where
“the violator was not aware and had no reason to believe
that its acts constituted a violation”).
Congress also did not confine liability under the FDCPA
to “willful” violations, a term more often understood in the
civil context to excuse mistakes of law. See, e.g., Trans
World Airlines, Inc. v. Thurston, 469 U. S. 111, 125–126
(1985) (civil damages for “willful violations” of Age Dis
crimination in Employment Act of 1967 require a showing
that the employer “knew or showed reckless disregard for
the matter of whether its conduct was prohibited” (inter
nal quotation marks omitted)); cf. Safeco Ins. Co. of Amer
ica v. Burr, 551 U. S. 47, 57 (2007) (although “ ‘willfully’ ”
is a “ ‘word of many meanings’ ” dependent on context, “we
have generally taken it [when used as a statutory condi
tion of civil liability] to cover not only knowing violations
of a standard, but reckless ones as well” (quoting Bryan v.
United States, 524 U. S. 184, 191 (1998)). For this reason,
the dissent missteps in relying on Thurston and McLaugh
10 JERMAN v. CARLISLE, MCNELLIE, RINI,
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Opinion of the Court
lin v. Richland Shoe Co., 486 U. S. 128, 133 (1988), as both
cases involved the statutory phrase “willful violation.”
Post, at 3.
The dissent reaches a contrary conclusion based on the
interaction of the words “violation” and “not intentional”
in §1692k(c). Post, at 2–3. But even in the criminal con
text, cf. n. 6, supra, reference to a “knowing” or “inten
tional” “violation” or cognate terms has not necessarily
implied a defense for legal errors. See Bryan v. United
States, 524 U. S. 184, 192 (1998) (“ ‘[T]he knowledge requi
site to knowing violation of a statute is factual knowledge
as distinguished from knowledge of the law’ ” (quoting
Boyce Motor Lines, Inc. v. United States, 342 U. S. 337,
345 (1952) (Jackson, J., dissenting)); United States v.
International Minerals & Chemical Corp., 402 U. S. 558,
559, 563 (1971) (statute imposing criminal liability on
those who “ ‘knowingly violat[e]’ ” regulations governing
transportation of corrosive chemicals does not require
“proof of [the defendant’s] knowledge of the law”); Ellis v.
United States, 206 U. S. 246, 255, 257 (1907) (rejecting
argument that criminal penalty applicable to those who
“intentionally violate” a statute “requires knowledge of the
law”).
The dissent advances a novel interpretative rule under
which the combination of a “mens rea requirement” and
the word “ ‘violation’ ” (as opposed to language specifying
“the conduct giving rise to the violation”) creates a mis
take-of-law defense. Post, at 2–3. Such a rule would be
remarkable in its breadth, applicable to the many scores of
civil and criminal provisions throughout the U. S. Code
that employ such a combination of terms. The dissent’s
theory draws no distinction between “knowing,” “inten
tional,” or “willful” and would abandon the care we have
traditionally taken to construe such words in their par
ticular statutory context. See, e.g., Safeco, supra, at 57.
More fundamentally, the dissent’s categorical rule is at
Cite as: 559 U. S. ____ (2010) 11
Opinion of the Court
odds with precedents such as Bryan, supra, at 192, and
International Minerals, supra, at 559, 563, in which we
rejected a mistake-of-law defense when a statute imposed
liability for a “knowing violation” or on those who “know
ingly violat[e]” the law.7
The dissent posits that the word “intentional,” in the
civil context, requires a higher showing of mens rea than
“willful” and thus that it should be easier to avoid liability
for intentional, rather than willful, violations. Post, at 4.
Even if the dissent is correct that the phrase “intentional
violation,” standing alone in a civil liability statute, might
be read to excuse mistakes of law, the FDCPA juxtaposes
the term “not intentional” “violation” in §1692k(c) with the
more specific language of §45(m)(1)(A), which refers to
——————
7 Indeed, in International Minerals, the Court faced, and evidently
rejected, the distinction the dissent would draw today between the term
“ ‘violation’ ” and a reference to “the conduct giving rise to the violation.”
Post, at 3. As noted, in International Minerals, the Court rejected a
mistake-of-law defense for a statute that applied to those who “know
ingly violat[e]” certain regulations. 402 U. S., at 559, 563. In so doing,
however, we expressly acknowledged the contrary view adopted by one
lower court opinion that knowledge of the regulations was necessary.
Id., at 562 (citing St. Johnsbury Trucking Co. v. United States, 220
F. 2d 393, 397 (CA1 1955) (Magruder, C. J., concurring)). The dissent
ing opinion in International Minerals quoted extensively portions of the
St. Johnsbury concurrence that reached its result by contrasting a
statute making it an offense “ ‘ “knowingly” to sell adulterated milk’ ”
with one that makes it an offense “ ‘knowingly [to] violat[e] a regula
tion.’ ” 402 U. S., at 566 (Stewart, J., dissenting) (quoting St. Johns
bury, supra, at 398).
Liparota v. United States, 471 U. S. 419 (1985), is also inapposite. Cf.
post, at 3 (KENNEDY, J., dissenting). Concluding that a mistake-of-law
defense is available under a provision that specifies particular conduct
undertaken while “ ‘knowing’ ” that food stamp coupons had been “ ‘used
in any manner in violation of [law],’ ” 471 U. S., at 428, n. 12, says little
about the meaning of a “not intentional” “violation” in 15 U. S. C.
§1692k(c). Indeed, the statute in Liparota bears a closer resemblance to
the administrative penalty provision in §45(m)(1)(A). See supra, at
8–9.
12 JERMAN v. CARLISLE, MCNELLIE, RINI,
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“actual knowledge or knowledge fairly implied on the basis
of objective circumstances” that particular conduct was
unlawful. The dissent’s reading gives short shrift to that
textual distinction.
We draw additional support for the conclusion that bona
fide errors in §1692k(c) do not include mistaken interpre
tations of the FDCPA, from the requirement that a debt
collector maintain “procedures reasonably adapted to
avoid any such error.” The dictionary defines “procedure”
as “a series of steps followed in a regular orderly definite
way.” Webster’s Third New International Dictionary 1807
(1976). In that light, the statutory phrase is more natu
rally read to apply to processes that have mechanical or
other such “regular orderly” steps to avoid mistakes—for
instance, the kind of internal controls a debt collector
might adopt to ensure its employees do not communicate
with consumers at the wrong time of day, §1692c(a)(1), or
make false representations as to the amount of a debt,
§1692e(2). The dissent, like the Court of Appeals, finds
nothing unusual in attorney debt collectors maintaining
procedures to avoid legal error. Post, at 18; 538 F. 3d, at
476. We do not dispute that some entities may maintain
procedures to avoid legal errors. But legal reasoning is
not a mechanical or strictly linear process. For this rea
son, we find force in the suggestion by the Government (as
amicus curiae supporting Jerman) that the broad statu
tory requirement of procedures reasonably designed to
avoid “any” bona fide error indicates that the relevant
procedures are ones that help to avoid errors like clerical
or factual mistakes. Such procedures are more likely to
avoid error than those applicable to legal reasoning, par
ticularly in the context of a comprehensive and complex
federal statute such as the FDCPA that imposes open
ended prohibitions on, inter alia, “false, deceptive,”
§1692e, or “unfair” practices, §1692f. See Brief for United
States as Amicus Curiae 16–18.
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Even if the text of §1692k(c), read in isolation, leaves
room for doubt, the context and history of the FDCPA
provide further reinforcement for construing that provi
sion not to shield violations resulting from misinterpreta
tions of the requirements of the Act. See Dada v. Mu
kasey, 554 U. S. 1, __ (2008) (slip op., at 13) (“In reading a
statute we must not look merely to a particular clause, but
consider in connection with it the whole statute” (internal
quotation marks omitted)). As described above, Congress
included in the FDCPA not only the bona fide error de
fense but also a separate protection from liability for “any
act done or omitted in good faith in conformity with any
advisory opinion of the [FTC].” §1692k(e). In our view,
the Court of Appeals’ reading is at odds with the role
Congress evidently contemplated for the FTC in resolving
ambiguities in the Act. Debt collectors would rarely need
to consult the FTC if §1692k(c) were read to offer immu
nity for good-faith reliance on advice from private counsel.
Indeed, debt collectors might have an affirmative incentive
not to seek an advisory opinion to resolve ambiguity in the
law, as receipt of such advice would prevent them from
claiming good-faith immunity for violations and would
potentially trigger civil penalties for knowing violations
under the FTC Act.8 More importantly, the existence of a
separate provision that, by its plain terms, is more obvi
ously tailored to the concern at issue (excusing civil liabil
ity when the Act’s prohibitions are uncertain) weighs
against stretching the language of the bona fide error
——————
8 One of Carlisle’s amici suggests the FTC safe harbor would provide
a more categorical immunity than §1692k(c), obviating the need, e.g., to
maintain “procedures reasonably adapted to avoid any such error.”
Brief for National Association of Retail Collection Attorneys as Amicus
Curiae 18–19 (NARCA Brief). Even if that is true, we need not con
clude that the FTC safe harbor would be rendered entirely superfluous
to reason that the existence of that provision counsels against extend
ing the bona fide error defense to serve an overlapping function.
14 JERMAN v. CARLISLE, MCNELLIE, RINI,
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Opinion of the Court
defense to accommodate Carlisle’s expansive reading.9
Any remaining doubt about the proper interpretation of
§1692k(c) is dispelled by evidence of the meaning attached
to the language Congress copied into the FDCPA’s bona
fide error defense from a parallel provision in an existing
statute. TILA, 82 Stat. 146, was the first of several stat
utes collectively known as the Consumer Credit Protection
Act (CCPA) that now include the FDCPA. As enacted in
1968, §130(c) of TILA provided an affirmative defense that
was in pertinent part identical to the provision Congress
later enacted into the FDCPA: “A creditor may not be held
liable in any action brought under [TILA] if the creditor
shows by a preponderance of evidence that the violation
was not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasona
bly adapted to avoid any such error.” 82 Stat. 157 (codi
fied at 15 U. S. C. §1640(c)).
During the 9-year period between the enactment of
TILA and passage of the FDCPA, the three Federal Courts
of Appeals to consider the question interpreted TILA’s
bona fide error defense as referring to clerical errors; no
such court interpreted TILA to extend to violations result
ing from a mistaken legal interpretation of that Act.10 We
——————
9 Carlisle raises concerns about whether, in light of contemporary
administrative practice, the FTC safe harbor is a realistic way for debt
collectors and their lawyers to seek guidance on the numerous time
sensitive legal issues that arise in litigation. These practical concerns,
to which we return below, do not change our understanding of the
statutory text itself or the likely intent of the enacting Congress.
10 See Ives v. W. T. Grant Co., 522 F. 2d 749, 757–758 (CA2 1975)
(concluding that the bona fide error defense in §1640(c) was unavailable
despite creditor’s reliance, in selecting language for credit contract
forms, on a pamphlet issued by the Federal Reserve Board); Haynes v.
Logan Furniture Mart, Inc., 503 F. 2d 1161, 1167 (CA7 1974) (“[Section]
1640(c) offers no shelter from liability for the defendant, whose error
. . . was judgmental with respect to legal requirements of the Act and
not clerical in nature”); Palmer v. Wilson, 502 F. 2d 860, 861 (CA9
Cite as: 559 U. S. ____ (2010) 15
Opinion of the Court
have often observed that when “judicial interpretations
have settled the meaning of an existing statutory provi
sion, repetition of the same language in a new statute
indicates, as a general matter, the intent to incorporate its
. . . judicial interpretations as well.” Bragdon v. Abbott,
524 U. S. 624, 645 (1998); see also Rowe v. New Hamp
shire Motor Transp. Assn., 552 U. S. 364, 370 (2008).
While the interpretations of three Federal Courts of Ap
peals may not have “settled” the meaning of TILA’s bona
fide error defense, there is no reason to suppose that
——————
1974) (similar).
Carlisle contends the meaning of TILA’s defense was unsettled at the
time of the FDCPA’s enactment, relying first on several District Court
opinions extending the defense to good-faith legal errors. See, e.g.,
Welmaker v. W. T. Grant Co., 365 F. Supp. 531, 544 (ND Ga. 1972).
But even assuming Congress would have looked to district court, rather
than court of appeals, opinions in discerning the meaning of the statu
tory language, applicable Circuit precedent had cast some doubt on
those decisions by the time the FDCPA was enacted. See, e.g., Turner
v. Firestone Tire & Rubber Co., 537 F. 2d 1296, 1298 (CA5 1976) (per
curiam) (referring to §1640(c) as the “so-called clerical error defense”).
Carlisle also relies on the holding in Thrift Funds of Baton Rouge, Inc.
v. Jones, 274 So. 2d 150 (La. 1973). But in that case, the Louisiana
Supreme Court concluded only that a lender’s mistaken interpretation
of state usury law did not “amoun[t] to an intentional violation of
[TILA’s] disclosure requirements.” Id., at 161. The Louisiana court
had no occasion to address the question analogous to the one we con
sider today: whether TILA’s bona fide error defense extended to viola
tions resulting from mistaken interpretation of TILA itself. See n. 4,
supra; see also Starks v. Orleans Motors, Inc., 372 F. Supp. 928, 931
(ED La.) (distinguishing Thrift Funds on this basis), aff’d, 500 F. 2d
1182 (CA5 1974). These precedents therefore do not convince us that
Congress would have ascribed a different meaning to the statutory
language it chose for the FDCPA. Compare post, at 2 (SCALIA, J.,
concurring in part and concurring in judgment), with Herman &
MacLean v. Huddleston, 459 U. S. 375, 384–386, and n. 21 (1983)
(concluding that Congress had “ratified” the “well-established judicial
interpretation” of a statute by leaving it intact during a comprehensive
revision, notwithstanding “[t]wo early district court decisions,” not
subsequently followed, that had adopted a contrary view).
16 JERMAN v. CARLISLE, MCNELLIE, RINI,
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Congress disagreed with those interpretations when it
enacted the FDCPA. Congress copied verbatim the perti
nent portions of TILA’s bona fide error defense into the
FDCPA. Compare 15 U. S. C. §1640(c) (1976 ed.) with
§813(c), 91 Stat. 881. This close textual correspondence
supports an inference that Congress understood the statu
tory formula it chose for the FDCPA consistent with Fed
eral Court of Appeals interpretations of TILA.11
Carlisle and the dissent urge reliance, consistent with
the approach taken by the Court of Appeals, on a 1980
amendment to TILA that added the following sentence to
that statute’s bona fide error defense: “Examples of a bona
fide error include, but are not limited to, clerical, calcula
tion, computer malfunction and program[m]ing, and print
ing errors, except that an error of legal judgment with
respect to a person’s obligations under [TILA] is not a
bona fide error.” See Truth in Lending Simplification and
Reform Act, §615, 94 Stat. 181. The absence of a corre
——————
11 That only three Courts of Appeals had occasion to address the ques
tion by the time the FDCPA was enacted does not render such an
inference unreasonable. Contra, post, at 1–2 (opinion of SCALIA, J.).
Whether or not we would take that view when such an inference serves
as a court’s sole interpretative guide, here our conclusion also relies on
common principles of statutory interpretation, as well as the statute’s
text and structure. Moreover, the inference is supported by the fact
that TILA and the FDCPA were enacted as complementary titles of the
CCPA, a comprehensive consumer-protection statute. While not
necessary to our conclusion, evidence from the legislative record dem
onstrates that some Members of Congress understood the relationship
between the FDCPA and existing provisions of the CCPA. See, e.g., 123
Cong. Rec. 10242 (1977) (remarks of Rep. Annunzio) (civil penalty
provisions in House version of bill were “consistent with those in the
[CCPA]”); Fair Debt Collection Practices Act: Hearings on S. 656 et al.
before the Subcommittee on Consumer Affairs of the Senate Committee
on Banking, Housing and Urban Affairs, 95th Cong., 1st Sess., 51, 707
(1977) (statement of Rep. Wylie) (describing “[c]ivil liability provisions”
in the House bill as “the standard provisions that attach to all the titles
of the [CCPA]”).
Cite as: 559 U. S. ____ (2010) 17
Opinion of the Court
sponding amendment to the FDCPA, Carlisle reasons, is
evidence of Congress’ intent to give a more expansive
scope to the FDCPA defense. For several reasons, we
decline to give the 1980 TILA amendment such interpreta
tive weight. For one, it is not obvious that the amendment
changed the scope of TILA’s bona fide error defense in a
way material to our analysis, given the uniform interpre
tations of three Courts of Appeals holding that the TILA
defense does not extend to mistakes of law.12 (Contrary to
——————
12 Although again not necessary to our conclusion, evidence from the
legislative record suggests some Members of Congress understood the
amendment to “clarif[y]” the meaning of TILA’s bona fide error defense
“to make clear that it applies to mechanical and computer errors,
provided they are not the result of erroneous legal judgments as to the
act’s requirements.” S. Rep. No. 96–73, pp. 7–8 (1979); see also Lock
hart, 153 A. L. R. Fed. 211–212, §2[a] (1999) (amendment “was in
tended merely to clarify what was then the prevailing view, that the
bona fide error defense applies to clerical errors, not including errors of
legal judgment”) (relying on S. Rep. No. 96–368, p. 32 (1979)).
The concurring and dissenting opinions perceive an inconsistency
between these references to clerical errors, as well as similar references
in the pre-FDCPA precedents interpreting TILA, n. 10, supra, and
reading the FDCPA’s bona fide error defense to include factual mis
takes. Post, at 2–4, and n. 2 (opinion of SCALIA, J.); post, at 20
(KENNEDY, J., dissenting). The quoted legislative history sources,
however, while stating expressly that the TILA defense excludes legal
errors, do not discuss a distinction between clerical and factual errors.
Similarly, the cited cases interpreting TILA do not address a distinction
between factual and clerical errors; rather, the courts were presented
with claims that the defense applied to mistakes of law or other nonfac
tual errors that the courts found not to be bona fide. See Ives, 522
F. 2d, at 756–757; Haynes, 503 F. 2d, at 1166–1167; Palmer, 502 F. 2d,
at 861. While factual mistakes might, in some circumstances, consti
tute bona fide errors and give rise to violations that are “not inten
tional” within the meaning of §1692k(c), we need not and do not decide
today the precise distinction between clerical and factual errors, or
what kinds of factual mistakes qualify under the FDCPA’s bona fide
error defense. Cf. generally R. Hobbs, National Consumer Law Center,
Fair Debt Collection §7.2 (6th ed. 2008 and Supp. 2009) (surveying case
law on scope of §1692k(c)).
18 JERMAN v. CARLISLE, MCNELLIE, RINI,
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the dissent’s suggestion, post, at 21, this reading does not
render the 1980 amendment surplusage. Congress may
simply have intended to codify existing judicial interpreta
tions to remove any potential for doubt in jurisdictions
where courts had not yet addressed the issue.) It is also
unclear why Congress would have intended the FDCPA’s
defense to be broader than the one in TILA, which pre
sents at least as significant a set of concerns about impos
ing liability for uncertain legal obligations. See, e.g., Ford
Motor Credit Co. v. Milhollin, 444 U. S. 555, 566 (1980)
(TILA is “ ‘highly technical’ ”). Our reluctance to give
controlling weight to the TILA amendment in construing
the FDCPA is reinforced by the fact that Congress has not
expressly included mistakes of law in any of the numerous
bona fide error defenses, worded in pertinent part identi
cally to §1692k(c), elsewhere in the U. S. Code. Compare,
e.g., 12 U. S. C. §4010(c)(2) (bona fide error defense in
Expedited Funds Availability Act expressly excluding “an
error of legal judgment with respect to [obligations under
that Act]”) with 15 U. S. C. §§1693m(c), 1693h(c) (bona
fide error provisions in the Electronic Fund Transfer Act
that are silent as to errors of legal judgment).13 Although
——————
13 The Government observes that several federal agencies have con
strued similar bona fide error defenses in statutes they administer to
exclude errors of law. See Brief for United States as Amicus Curiae 28–
30. The Secretary of Housing and Urban Development, for instance,
has promulgated regulations specifying that the bona fide error defense
in the Real Estate Settlement Procedures Act of 1974, 12 U. S. C.
§2607(d)(3), does not apply to “[a]n error of legal judgment,” 24 CFR
§3500.15(b)(1)(ii) (2009). While administrative interpretations of other
statutes do not control our reading of the FDCPA, we find it telling that
no agency has adopted the view of the Court of Appeals. Of course,
nothing in our opinion today addresses the validity of such regulations
or the authority of agencies interpreting bona fide error provisions in
other statutes to adopt a different reading. See National Cable &
Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967,
982–983 (2005).
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Opinion of the Court
Carlisle points out that Congress has amended the
FDCPA on several occasions without expressly restricting
the scope of §1692k(c), that does not suggest Congress
viewed the statute as having the expansive reading Car
lisle advances, particularly as not until recently had a
Court of Appeals interpreted the bona fide error defense to
include a violation of the FDCPA resulting from a mistake
of law. See Johnson v. Riddle, 305 F. 3d 1107, 1121–1124,
and nn. 14–15 (CA10 2002).
Carlisle’s reliance on Heintz, 514 U. S. 291, is also un
availing. We held in that case that the FDCPA’s defini
tion of “debt collector” includes lawyers who regularly,
through litigation, attempt to collect consumer debts. Id.,
at 292. We addressed a concern raised by the petitioner
(as here, a lawyer collecting a debt on behalf of a client)
that our reading would automatically render liable “any
litigating lawyer who brought, and then lost, a claim
against a debtor,” on the ground that §1692e(5) prohibits a
debt collector from making any “ ‘threat to take action that
cannot legally be taken.’ ” Id., at 295. We expressed skep
ticism that §1692e(5) itself demanded such a result. But
even assuming the correctness of petitioner’s reading of
§1692e(5), we suggested that the availability of the bona
fide error defense meant that the prospect of liability for
litigating lawyers was not “so absurd” as to warrant im
plying a categorical exemption unsupported by the statu
tory text. Ibid. We had no occasion in Heintz to address
the overall scope of the bona fide error defense. Our dis
cussion of §1692e(5) did not depend on the premise that a
misinterpretation of the requirements of the Act would fall
under the bona fide error defense. In the mine-run law
suit, a lawyer is at least as likely to be unsuccessful be
cause of factual deficiencies as opposed to legal error.
Lawyers can, of course, invoke §1692k(c) for violations
resulting from qualifying factual errors.
Carlisle’s remaining arguments do not change our view
20 JERMAN v. CARLISLE, MCNELLIE, RINI,
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Opinion of the Court
of §1692k(c). Carlisle perceives an inconsistency between
our reading of the term “intentional” in that provision and
the instruction in §1692k(b) that a court look to whether
“noncompliance was intentional” in assessing statutory
additional damages. But assuming §1692k(b) encom
passes errors of law, we see no conflict, only congruence, in
reading the Act to permit a court to adjust statutory dam
ages for a good-faith misinterpretation of law, even where
a debt collector is not entitled to the categorical protection
of the bona fide error defense. Carlisle is also concerned
that under our reading, §1692k(c) would be unavailable to
a debt collector who violates a provision of the FDCPA
applying to acts taken with particular intent because in
such instances the relevant act would not be uninten
tional. See, e.g., §1692d(5) (prohibiting a debt collector
from “[c]ausing a telephone to ring . . . continuously with
intent to annoy, abuse, or harass”). Including mistakes as
to the scope of such a prohibition, Carlisle urges, would
ensure that §1692k(c) applied throughout the FDCPA. We
see no reason, however, why the bona fide error defense
must cover every provision of the Act.
The parties and amici make arguments concerning the
legislative history that we address for the sake of com
pleteness. Carlisle points to a sentence in a Senate Com
mittee Report stating that “[a] debt collector has no liabil
ity . . . if he violates the act in any manner, including with
regard to the act’s coverage, when such violation is unin
tentional and occurred despite procedures designed to
avoid such violations.” S. Rep. No. 95–382, p. 5 (1977); see
also post, at 4–6 (opinion of SCALIA, J.) (discussing report).
But by its own terms, the quoted sentence does not unam
biguously support Carlisle’s reading. Even if a bona fide
mistake “with regard to the act’s coverage” could be read
in isolation to contemplate a mistake of law, that reading
does not exclude mistakes of fact. A mistake “with regard
to the act’s coverage” may derive wholly from a debt collec
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Opinion of the Court
tor’s factually mistaken belief, for example, that a particu
lar debt arose out of a nonconsumer transaction and was
therefore not “covered” by the Act. There is no reason to
read this passing statement in the Senate Report as con
templating an exemption for legal error that is the product
of an attorney’s erroneous interpretation of the FDCPA—
particularly when attorneys were excluded from the Act’s
definition of “debt collector” until 1986. 100 Stat. 768.
Moreover, the reference to “any manner” of violation is
expressly qualified by the requirements that the violation
be “unintentional” and occur despite maintenance of ap
propriate procedures. In any event, we need not choose
between these possible readings of the Senate Report, as
the legislative record taken as a whole does not lend
strong support to Carlisle’s view.14 We therefore decline to
——————
14 For instance, an amendment was proposed and rejected during the
Senate Banking Committee’s consideration of the FDCPA that would
have required proof that a debt collector’s violation was “knowin[g].”
Senator Riegle, one of the Act’s primary sponsors, opposed the change,
explaining that the bill reflected the view that “certain things ought not
to happen, period. . . . [W]hether somebody does it knowingly, willfully,
you know, with a good heart, bad heart, is really quite incidental.” See
Senate Committee on Banking, Housing and Urban Affairs, Markup
Session: S. 1130—Debt Collection Legislation 60 (July 26, 1977) (here
inafter Markup); see also ibid. (“We have left a way for these disputes
to be adj[u]dicated if they are brought, where somebody can say, I
didn’t know that, or my computer malfunctioned, something happened,
I didn’t intend for the effect to be as it was”). To similar effect, a House
Report on an earlier version of the bill explained the need for new
legislation governing use of the mails for debt collection on grounds
that existing statutes “frequently require[d]” a showing of “specific
intent[,] which is difficult to prove.” H. R. Rep. No. 95–131, p. 3 (1977).
Elsewhere, to be sure, the legislative record contains statements more
supportive of Carlisle’s interpretation. In particular, a concern was
raised in the July 26 markup session that the TILA bona fide error
defense had been interpreted “as only protecting against a mathemati
cal error,” and that the FDCPA defense should “go beyond” TILA to
“allow the courts discretion to dismiss a violation where it was a
technical error.” Markup 20. In response, a staffer explained that the
22 JERMAN v. CARLISLE, MCNELLIE, RINI,
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Opinion of the Court
give controlling weight to this isolated passage.
B
Carlisle, its amici, and the dissent raise the additional
concern that our reading will have unworkable practical
consequences for debt collecting lawyers. See, e.g., Brief
for Respondents 40–41, 45–48; NARCA Brief 4–16; post, at
5–14. Carlisle claims the FDCPA’s private enforcement
provisions have fostered a “cottage industry” of profes
sional plaintiffs who sue debt collectors for trivial viola
tions of the Act. See Brief for Respondents 40–41. If debt
collecting attorneys can be held personally liable for their
reasonable misinterpretations of the requirements of the
Act, Carlisle and its amici foresee a flood of lawsuits
against creditors’ lawyers by plaintiffs (and their attor
neys) seeking damages and attorney’s fees. The threat of
such liability, in the dissent’s view, creates an irreconcil
able conflict between an attorney’s personal financial
interest and her ethical obligation of zealous advocacy on
behalf of a client: An attorney uncertain about what the
FDCPA requires must choose between, on the one hand,
exposing herself to liability and, on the other, resolving
the legal ambiguity against her client’s interest or advis
ing the client to settle—even where there is substantial
legal authority for a position favoring the client. Post, at
10–14.15
——————
FDCPA defense would “apply to any violation of the act which was
unintentional,” and answered affirmatively when the Chairman asked:
“So it’s not simply a mathematical error but any bona fide error without
intent?” Id., at 21. Whatever the precise balance of these statements
may be, we can conclude that this equivocal evidence from legislative
history does not displace the clear textual and contextual authority
discussed above.
15 The dissent also cites several other consumer-protection statutes,
such as TILA and the Fair Credit Reporting Act, 15 U. S. C. §1681 et
seq., which in its view create “incentives to file lawsuits even where no
actual harm has occurred” and are illustrative of what the dissent
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Opinion of the Court
We do not believe our holding today portends such grave
consequences. For one, the FDCPA contains several pro
visions that expressly guard against abusive lawsuits,
thereby mitigating the financial risk to creditors’ attor
neys. When an alleged violation is trivial, the “actual
damage[s]” sustained, §1692k(a)(1), will likely be de
minimis or even zero. The Act sets a cap on “additional”
damages, §1692k(a)(2), and vests courts with discretion to
adjust such damages where a violation is based on a good
faith error, §1692k(b). One amicus suggests that attor
ney’s fees may shape financial incentives even where
actual and statutory damages are modest. NARCA Brief
11. The statute does contemplate an award of costs and “a
reasonable attorney’s fee as determined by the court” in
the case of “any successful action to enforce the foregoing
liability.” §1692k(a)(3). But courts have discretion in
calculating reasonable attorney’s fees under this statute,16
——————
perceives to be a “troubling dynamic of allowing certain actors in the
system to spin even good-faith, technical violations of federal law into
lucrative litigation.” Post, at 5–6. The dissent’s concern is primarily
with Congress’ policy choice, embodied in statutory text, to authorize
private rights of action and recovery of attorney’s fees, costs, and in
some cases, both actual and statutory damages. As noted, in one of the
statutes the dissent cites, Congress explicitly barred reliance on a
mistake-of-law defense notwithstanding the “highly technical” nature of
the scheme. See 15 U. S. C. §1640(c) (TILA); Ford Motor Credit Co. v.
Milhollin, 444 U. S. 555, 566 (1980). Similarly, the plain text of the
FDCPA authorizes a private plaintiff to recover not only “actual dam
age[s]” for harm suffered but also “such additional damages as the
court may allow,” §1692k(a).
16 The Courts of Appeals generally review a District Court’s calcula
tion of an attorney fee award under §1692k for abuse of discretion. See,
e.g., Carroll v. Wolpoff & Abramson, 53 F. 3d 626, 628–629 (CA4 1995);
Emanuel v. American Credit Exchange, 870 F. 2d 805, 809 (CA2 1989).
Many District Courts apply a lodestar method, permitting downward
adjustments in appropriate circumstances. See, e.g., Schlacher v. Law
Offices of Phillip J. Rotche & Assoc., P. C., 574 F. 3d 852 (CA7 2009)
(relying on Hensley v. Eckerhart, 461 U. S. 424 (1983)); Ferland v.
Conrad Credit Corp., 244 F. 3d 1145, 1148–1151, and n. 4 (CA9 2001)
24 JERMAN v. CARLISLE, MCNELLIE, RINI,
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Opinion of the Court
and §1692k(a)(3) authorizes courts to award attorney’s
fees to the defendant if a plaintiff’s suit “was brought in
bad faith and for the purpose of harassment.”
Lawyers also have recourse to the affirmative defense in
§1692k(c). Not every uncertainty presented in litigation
stems from interpretation of the requirements of the Act
itself; lawyers may invoke the bona fide error defense, for
instance, where a violation results from a qualifying fac
tual error. Jerman and the Government suggest that
lawyers can entirely avoid the risk of misinterpreting the
Act by obtaining an advisory opinion from the FTC under
§1692k(e). Carlisle fairly observes that the FTC has not
frequently issued such opinions, and that the average
processing time may present practical difficulties. Indeed,
the Government informed us at oral argument that the
FTC has issued only four opinions in the past decade (in
response to seven requests), and the FTC’s response time
——————
(per curiam); see generally Hobbs, Fair Debt Collection §6.8.6. In
Schlacher, for instance, the court affirmed a downward adjustment for
the “unnecessary use of multiple attorneys . . . in a straightforward,
short-lived [FDCPA] case.” 574 F. 3d, at 854–855. In Carroll, the court
found no abuse of discretion in a District Court’s award of a $500
attorney’s fee, rather than the lodestar amount, where the lawsuit had
recovered only $50 in damages for “at most a technical violation” of the
FDCPA. 53 F. 3d, at 629–631.
Lower courts have taken different views about when, and whether,
§1692k requires an award of attorney’s fees. Compare Tolentino v.
Friedman, 46 F. 3d 645 (CA7 1995) (award of fees to a successful
plaintiff “mandatory”), and Emanuel, supra, at 808–809 (same, even
where the plaintiff suffered no actual damages), with Graziano, 950 F.
2d, at 114, and n. 13 (attorney’s fees may be denied for plaintiff’s “bad
faith conduct”), and Johnson v. Eaton, 80 F. 3d 148, 150–152 (CA5
1996) (“attorney’s fees . . . are only available [under §1692k] where the
plaintiff has succeeded in establishing that the defendant is liable for
actual and/or additional damages”; this reading “will deter suits
brought only as a means of generating attorney’s fees”). We need not
resolve these issues today to express doubt that our reading
of §1692k(c) will impose unmanageable burdens on debt collecting
lawyers.
Cite as: 559 U. S. ____ (2010) 25
Opinion of the Court
has typically been three or four months. Tr. of Oral Arg.
27–28, 30. Without disregarding the possibility that the
FTC advisory opinion process might be useful in some
cases, evidence of present administrative practice makes
us reluctant to place significant weight on §1692k(e) as a
practical remedy for the concerns Carlisle has identified.
We are unpersuaded by what seems an implicit premise
of Carlisle’s arguments: that the bona fide error defense is
a debt collector’s sole recourse to avoid potential liability.
We addressed a similar argument in Heintz, in which the
petitioner urged that certain of the Act’s substantive
provisions would generate “ ‘anomalies’ ” if the term “debt
collector” was read to include litigating lawyers. 514
U. S., at 295. Among other things, the petitioner in Heintz
contended that §1692c(c)’s bar on further communication
with a consumer who notifies a debt collector that she is
refusing to pay the debt would prohibit a lawyer from
filing a lawsuit to collect the debt. Id., at 296–297. We
agreed it would be “odd” if the Act interfered in this way
with “an ordinary debt-collecting lawsuit” but suggested
§1692c(c) did not demand such a reading in light of several
exceptions in the text of that provision itself. Ibid. As in
Heintz, we need not authoritatively interpret the Act’s
conduct-regulating provisions to observe that those provi
sions should not be assumed to compel absurd results
when applied to debt collecting attorneys.
To the extent the FDCPA imposes some constraints on a
lawyer’s advocacy on behalf of a client, it is hardly unique
in our law. “[A]n attorney’s ethical duty to advance the
interests of his client is limited by an equally solemn duty
to comply with the law and standards of professional
conduct.” Nix v. Whiteside, 475 U. S. 157, 168 (1986).
Lawyers face sanctions, among other things, for suits
presented “for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of
litigation.” Fed. Rules Civ. Proc. 11(b), (c). Model rules of
26 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
Opinion of the Court
professional conduct adopted by many States impose outer
bounds on an attorney’s pursuit of a client’s interests.
See, e.g., ABA Model Rules of Professional Conduct 3.1
(2009) (requiring nonfrivolous basis in law and fact for
claims asserted); 4.1 (truthfulness to third parties). In
some circumstances, lawyers may face personal liability
for conduct undertaken during representation of a client.
See, e.g., Central Bank of Denver, N. A. v. First Interstate
Bank of Denver, N. A., 511 U. S. 164, 191 (1994) (“Any
person or entity, including a lawyer, . . . who employs a
manipulative device or makes a material misstatement (or
omission) on which a purchaser or seller of securities
relies may be liable as a primary violator under [Securities
and Exchange Commission Rule] 10b–5”).
Moreover, a lawyer’s interest in avoiding FDCPA liabil
ity may not always be adverse to her client. Some courts
have held clients vicariously liable for their lawyers’ viola
tions of the FDCPA. See, e.g., Fox v. Citicorp Credit
Servs., Inc., 15 F. 3d 1507, 1516 (CA9 1994); see also First
Interstate Bank of Fort Collins, N. A. v. Soucie, 924 P. 2d
1200, 1202 (Colo. App. 1996).
The suggestion that our reading of §1692k(c) will create
unworkable consequences is also undermined by the exis
tence of numerous state consumer protection and debt
collection statutes that contain bona fide error defenses
that are either silent as to, or expressly exclude, legal
errors.17 Several States have enacted debt collection
statutes that contain neither an exemption for attorney
debt collectors nor any bona fide error defense at all. See,
e.g., Mass. Gen. Laws, ch. 93, §49 (West 2008); Md. Com.
Law Code Ann. §14–203 (Lexis 2005); Ore. Rev. Stat.
——————
17 SeeBrief for Ohio Creditor’s Attorneys Association et al. as Amici
Curiae 4–6, and nn. 7–8 (identifying “134 state consumer protection
and debt collection statutes,” 42 of which expressly exclude legal errors
from their defenses for bona fide errors).
Cite as: 559 U. S. ____ (2010) 27
Opinion of the Court
§646.641 (2007); Wis. Stat. §427.105 (2007–2008). More
generally, a group of 21 States as amici supporting Jer
man inform us they are aware of “no [judicial] decisions
interpreting a parallel state bona fide error provision [in a
civil regulatory statute] to immunize a defendant’s mis
take of law,” except in a minority of statutes that ex
pressly provide to the contrary.18 See Brief for State of
New York et al. as Amici Curiae 11, and n. 6. Neither
Carlisle and its amici nor the dissent demonstrate that
lawyers have suffered drastic consequences under these
state regimes.
In the dissent’s view, these policy concerns are evidence
that “Congress could not have intended” the reading we
adopt today. Post, at 5. But the dissent’s reading raises
concerns of its own. The dissent focuses on the facts of
this case, in which an attorney debt collector, in the dis
sent’s view, “acted reasonably at every step” and commit
ted a “technical violation” resulting in no “actual harm” to
the debtor. Post, at 12, 6, 8. But the dissent’s legal theory
does not limit the defense to attorney debt collectors or
“technical” violations.19 Under that approach, it appears,
nonlawyer debt collectors could obtain blanket immunity
for mistaken interpretations of the FDCPA simply by
seeking the advice of legal counsel. Moreover, many debt
collectors are compensated with a percentage of money
recovered, and so will have a financial incentive to press
——————
18 See, e.g., Kan. Stat. Ann. §16a–5–201(7) (2007) (provision of Kansas
Consumer Credit Code providing a defense for a “bona fide error of law
or fact”); Ind. Code §24–9–5–5 (West 2004) (defense for creditor’s “bona
fide error of law or fact” in Indiana Home Loan Practices Act).
19 The dissent also downplays the predicate fact that respondents in
this case brought a foreclosure lawsuit against Jerman for a debt she
had already repaid. Neither the lower courts nor this Court have been
asked to consider, and thus we express no view about, whether Carlisle
could be subject to liability under the FDCPA for that uncontested
error—regardless of how reasonably Carlisle may have acted after the
mistake was pointed out by Jerman’s (privately retained) lawyer.
28 JERMAN v. CARLISLE, MCNELLIE, RINI,
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Opinion of the Court
the boundaries of the Act’s prohibitions on collection tech
niques. It is far from obvious why immunizing debt collec
tors who adopt aggressive but mistaken interpretations of
the law would be consistent with the statute’s broadly
worded prohibitions on debt collector misconduct. Jerman
and her amici express further concern that the dissent’s
reading would give a competitive advantage to debt collec
tors who press the boundaries of lawful conduct. They
foresee a “race to the bottom” driving ethical collectors out
of business. Brief for Petitioner 32; Brief for Public Citi
zen et al. as Amici Curiae 16–18. It is difficult to square
such a result with Congress’ express purpose “to eliminate
abusive debt collection practices by debt collectors, [and]
to insure that those debt collectors who refrain from using
abusive debt collection practices are not competitively
disadvantaged,” §1692(e).
The dissent’s reading also invites litigation about a debt
collector’s subjective intent to violate the FDCPA and the
adequacy of procedures maintained to avoid legal error.
Cf. Barlow, 7 Pet., at 411 (maxim that ignorance of the
law will not excuse civil or criminal liability “results from
the extreme difficulty of ascertaining what is, bona fide,
the interpretation of the party”). Courts that read
§1692k(c) to permit a mistake-of-law defense have adopted
varying formulations of what legal procedures are “rea
sonably adapted to avoid any [legal] error.”20 Among other
uncertainties, the dissent does not explain whether it
——————
20 Compare Hartman v. Great Senaca Financial Corp., 569 F. 3d 606,
614–615 (CA6 2009) (suggesting that reasonable procedures might
include “perform[ing] ongoing FDCPA training, procur[ing] the most
recent case law, or hav[ing] an individual responsible for continuing
compliance with the FDCPA”), with Johnson v. Riddle, 443 F. 3d 723,
730–731 (CA10 2006) (suggesting that researching case law and filing a
test case might be sufficient, but remanding for a jury determination of
whether the “limited [legal] analysis” undertaken was sufficient and
whether the test case was in fact a “sham”).
Cite as: 559 U. S. ____ (2010) 29
Opinion of the Court
would read §1692k(c) to impose a heightened standard for
the procedures attorney debt collectors must maintain, as
compared to nonattorney debt collectors. The increased
cost to prospective plaintiffs in time, fees, and uncertainty
of outcome may chill private suits under the statutory
right of action, undermining the FDCPA’s calibrated
scheme of statutory incentives to encourage self
enforcement. Cf. FTC, Collecting Consumer Debts: The
Challenge of Change 67 (2009) (“Because the Commission
receives more than 70,000 third-party debt collection
complaints per year, it is not feasible for federal govern
ment law enforcement to be the exclusive or primary
means of deterring all possible law violations”). The state
amici predict that, on the dissent’s reading, consumers
will have little incentive to bring enforcement actions
“where the law [i]s at all unsettled, because in such cir
cumstances a debt collector could easily claim bona fide
error of law”; in the States’ view, the resulting “enforce
ment gap” would be “extensive” at both the federal and
State levels. See Brief for State of New York et al. as
Amici Curiae 7–10. In short, the policy concerns identified
by the dissent tell only half the story.21
In sum, we do not foresee that our decision today will
place unmanageable burdens on lawyers practicing in the
debt collection industry. To the extent debt collecting
lawyers face liability for mistaken interpretations of the
requirements of the FDCPA, Carlisle, its amici, and the
dissent have not shown that “the result [will be] so absurd
as to warrant” disregarding the weight of textual author
——————
21 The dissent adds in passing that today’s decision “creates serious
concerns . . . for First Amendment rights.” Post, at 13 (citing Legal
Services Corporation v. Velazquez, 531 U. S. 533, 545 (2001)). That
claim was neither raised nor passed upon below, and was mentioned
neither in the certiorari papers nor the parties’ merits briefing to this
Court. We decline to express any view on it. See Cutter v. Wilkinson,
544 U. S. 709, 718, n. 7 (2005).
30 JERMAN v. CARLISLE, MCNELLIE, RINI,
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Opinion of the Court
ity discussed above. Heintz, 514 U. S., at 295. Absent
such a showing, arguments that the Act strikes an unde
sirable balance in assigning the risks of legal misinterpre
tation are properly addressed to Congress. To the extent
Congress is persuaded that the policy concerns identified
by the dissent require a recalibration of the FDCPA’s
liability scheme, it is, of course, free to amend the statute
accordingly.22 Congress has wide latitude, for instance, to
revise §1692k to excuse some or all mistakes of law or
grant broader discretion to district courts to adjust a
plaintiff’s recovery. This Court may not, however, read
more into §1692k(c) than the statutory language naturally
supports. We therefore hold that the bona fide error de
fense in §1692k(c) does not apply to a violation of the
FDCPA resulting from a debt collector’s incorrect interpre
tation of the requirements of that statute.
* * *
For the reasons discussed above, the judgment of the
United States Court of Appeals for the Sixth Circuit is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
——————
22 The FDCPA has been amended some eight times since its enact
ment in 1977; the most recent amendment addressed a concern not
unrelated to the question we consider today, specifying that a pleading
in a civil action is not an “initial communication” triggering obligations
under §1692g requiring a written notice to the consumer. Financial
Services Regulatory Relief Act of 2006, §802(a), 120 Stat. 2006 (codified
at 15 U. S. C. §1692g(d)).
Cite as: 559 U. S. ____ (2010) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1200
_________________
KAREN L. JERMAN, PETITIONER v. CARLISLE, MC-
NELLIE, RINI, KRAMER & ULRICH LPA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 21, 2010]
JUSTICE BREYER, concurring.
As respondents point out, the Court’s interpretation of
the Fair Debt Collection Practices Act may create a di
lemma for lawyers who regularly engage in debt collection,
including through litigation. See Brief for Respondents
44–48; Heintz v. Jenkins, 514 U. S. 291 (1995). Can those
lawyers act in the best interests of their clients if they face
personal liability when they rely on good-faith interpreta
tions of the Act that are later rejected by a court? Or will
that threat of personal liability lead them to do less than
their best for those clients?
As the majority points out, however, the statute offers a
way out of—though not a panacea for—this dilemma.
Ante, at 13–14, 24–25. Faced with legal uncertainty, a
lawyer can turn to the Federal Trade Commission (FTC or
Commission) for an advisory opinion. 16 CFR §§1.1 to 1.4
(2009). And once he receives that opinion and acts upon it
the dilemma disappears: If he fails to follow the opinion,
he has not acted in good faith and can fairly be held liable.
If he follows the opinion, the statute frees him from any
such liability. 15 U. S. C. §1692k(e) (debt collectors im
mune from liability for “any act done or omitted in . . .
conformity with any advisory opinion of the [Federal
Trade] Commission”). See also R. Hobbs et al., National
Consumer Law Center, Fair Debt Collection §§6.12.2, 7.3
2 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
BREYER, J., concurring
(6th ed. 2008).
The FTC, of course, may refuse to issue such an opinion.
See, e.g., 16 CFR §1.1 (providing that the Commission will
issue advisory opinions “where practicable” and only when
“[t]he matter involves a substantial or novel question of
fact or law and there is no clear Commission or court
precedent” or “is of significant public interest”). Appar
ently, within the past decade, the FTC has received only
seven requests and issued four opinions. See Tr. of
Oral Arg. 27–28; see also Federal Trade Commis-
sion,Commission FDCPA Advisory Opinions, online at
http://www.ftc.gov/os/statutes/fdcpajump.shtm (as visited
Apr. 19, 2010, and available in Clerk of Court’s case file).
Yet, should the dilemma I have described above prove
serious, I would expect the FTC to receive more requests
and to respond to them, thereby reducing the scope of the
problem to the point where other available tools, e.g.,
damages caps and vicarious liability, will prove adequate.
See ante, at 23–27. On this understanding, I agree with
the Court and join its opinion.
Cite as: 559 U. S. ____ (2010) 1
Opinion of SCALIA, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1200
_________________
KAREN L. JERMAN, PETITIONER v. CARLISLE, MC-
NELLIE, RINI, KRAMER & ULRICH LPA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 21, 2010]
JUSTICE SCALIA, concurring in part and concurring in
the judgment.
I join the Court’s opinion except for its reliance upon two
legal fictions. A portion of the Court’s reasoning consists
of this: The language in the Fair Debt Collection Practices
Act (FDCPA or Act) tracks language in the Truth in Lend
ing Act (TILA); and in the nine years between the enact
ment of TILA and the enactment of the FDCPA, three
Courts of Appeals had “interpreted TILA’s bona fide error
defense as referring to clerical errors.” Ante, at 14. Rely
ing on our statement in Bragdon v. Abbott, 524 U. S. 624,
645 (1998), that Congress’s repetition, in a new statute, of
statutory language with a “ ‘settled’ ” judicial interpreta
tion indicates “ ‘the intent to incorporate its . . . judicial
interpretations as well,’ ” the Court concludes that these
three Court of Appeals cases “suppor[t] an inference that
Congress understood the statutory formula it chose for the
FDCPA consistent with Federal Court of Appeals interpre
tations of TILA.” Ante, at 14–16.
Let me assume (though I do not believe it) that what
counts is what Congress “intended,” even if that intent
finds no expression in the enacted text. When a large
majority of the Circuits, over a lengthy period of time,
have uniformly reached a certain conclusion as to the
meaning of a particular statutory text, it may be reason
2 JERMAN v. CARLISLE, MCNELLIE, RINI,
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Opinion of SCALIA, J.
able to assume that Congress was aware of those holdings,
took them to be correct, and intended the same meaning in
adopting that text.1 It seems to me unreasonable, how
ever, to assume that, when Congress has a bill before it
that contains language used in an earlier statute, it is
aware of, and approves as correct, a mere three Court of
Appeals decisions interpreting that earlier statute over
the previous nine years. Can one really believe that a
majority in both Houses of Congress knew of those three
cases, and accepted them as correct (even when, as was
the case here, some District Court opinions and a State
Supreme Court opinion had concluded, to the contrary,
that the defense covered legal errors, see ante, at 14–15,
n. 10)? This is a legal fiction, which has nothing to be said
for it except that it can sometimes make our job easier.
The Court acknowledges that “the interpretations of three
Federal Courts of Appeals may not have ‘settled’ the
meaning of TILA’s bona fide error defense,” but says
“there is no reason to suppose that Congress disagreed
with those interpretations.” Ante, at 15–16. Perhaps not;
but no reason to suppose that it knew of and agreed with
them either—which is presumably the proposition for
which the Court cites them.
Even assuming, moreover, that Congress knew and
approved of those cases, they would not support the
Court’s conclusion today. All three of them said that
TILA’s bona fide error defense covered only clerical errors.
See Ives v. W. T. Grant Co., 522 F. 2d 749, 758 (CA2 1975)
(“only available for clerical errors”); Haynes v. Logan
——————
1 Of course where so many federal courts have read the language that
way, the text was probably clear enough that resort to unexpressed
congressional intent would be unnecessary. Or indeed it could be said
that such uniform and longstanding judicial interpretation had estab
lished the public meaning of the text, whether the Members of Con
gress were aware of the cases or not. That would be the understanding
of the text by reasonable people familiar with its legal context.
Cite as: 559 U. S. ____ (2010) 3
Opinion of SCALIA, J.
Furniture Mart, Inc., 503 F. 2d 1161, 1167 (CA7 1974)
(“basically only clerical errors”); Palmer v. Wilson, 502
F. 2d 860, 861 (CA9 1974) (“[C]lerical errors . . . are the
only violations this section was designed to excuse”). Yet
the Court specifically interprets the identical language in
the FDCPA as providing a defense not only for clerical
errors, but also for factual errors. See ante, at 19, 24; see
also ante, at 20–21 (suggesting the same). If the Court
really finds the three Courts of Appeals’ interpretations of
TILA indicative of congressional intent in the FDCPA, it
should restrict its decision accordingly. As for me, I sup
port the Court’s inclusion of factual errors, because there
is nothing in the text of the FDCPA limiting the excusable
“not intentional” violations to those based on clerical
errors, and since there is a long tradition in the common
law and in our construction of federal statutes distinguish
ing errors of fact from errors of law.
The Court’s opinion also makes fulsome use of that
other legal fiction, legislative history, ranging from a
single Representative’s floor remarks on the House bill
that became the FDCPA, ante, at 16, n. 11, to a single
Representative’s remarks in a Senate Subcommittee
hearing on the House bill and three Senate bills, ibid., to
two 1979 Senate Committee Reports dealing not with the
FDCPA but with the 1980 amendments to TILA, ante, at
17, n. 12, to remarks in a Committee markup of the Sen
ate bill on the FDCPA, ante, at 21–22, n. 14, to a House
Report dealing with an earlier version of the FDCPA, ibid.Is the conscientious attorney really expected to dig out
such mini-nuggets of “congressional intent” from floor
remarks, committee hearings, committee markups, and
committee reports covering many different bills over many
years? When the Court addresses such far-afield legisla
tive history merely “for the sake of completeness,” ante, at
20, it encourages and indeed prescribes such wasteful
over-lawyering.
4 JERMAN v. CARLISLE, MCNELLIE, RINI,
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Opinion of SCALIA, J.
As it happens, moreover, one of the supposedly most
“authoritative” snippets of legislative history, a Senate
Committee Report dealing with the meaning of TILA,
states very clearly that the 1980 amendment to TILA’s
bona fide error defense “clarified” the defense “to make
clear that it applies to mechanical and computer errors,”
S. Rep. No. 96–73, pp. 7–8 (1979). Likewise, the 1999
American Law Report the Court cites, ante, at 17, n. 12,
which relies on another Senate Committee Report, de
scribes the amendment as clarifying the “prevailing view”
that the defense “applies to clerical errors,” Lockhart, 153
A. L. R. Fed. 211–212, §2[a] (1999).2 Once again, the legal
fiction contradicts the Court’s conclusion that the lan
guage in the FDCPA, identical to the original TILA de
fense, applies to mistakes of fact.
But if legislative history is to be used, it should be used
impartially. (Legislative history, after all, almost always
has something for everyone!) The Court dismisses with a
wave of the hand what seems to me the most persuasive
legislative history (if legislative history could ever be
persuasive) in the case. The respondents point to the
Senate Committee Report on the FDCPA, which says that
“[a] debt collector has no liability . . . if he violates the act
in any manner, including with regard to the act’s coverage,
when such violation is unintentional and occurred despite
procedures designed to avoid such violations.” S. Rep. No.
95–382, p. 5 (1977) (emphasis added). The Court claims
that a mistake about “the act’s coverage” in this passage
might refer to factual mistakes, such as a debt collector’s
mistaken belief “that a particular debt arose out of a
nonconsumer transaction and was therefore not ‘covered’
——————
2 The page cited in the Senate Committee Report does not actually
support the American Law Report’s statement. It makes no mention of
clarification or judicial interpretations; it merely states that the
amendment is intended to “provide protection where errors are clerical
or mechanical in nature,” S. Rep. No. 96–368, p. 32 (1979).
Cite as: 559 U. S. ____ (2010) 5
Opinion of SCALIA, J.
by the Act,” ante, at 21. The Court’s explanation seems to
me inadequate. No lawyer—indeed, no one speaking
accurately—would equate a mistake regarding the Act’s
coverage with a mistake regarding whether a particular
fact situation falls within the Act’s coverage. What the
Act covers (“the act’s coverage”) is one thing; whether a
particular case falls within the Act’s coverage is something
else.
Even if (contrary to my perception) the phrase could be
used to refer to both these things, by what principle does
the Court reject the more plausible meaning? The fact
that “attorneys were excluded from the Act’s definition of
‘debt collector’ until 1986,” ibid., does not, as the Court
contends, support its conclusion that errors of law are not
covered. Attorneys are not the only ones who would have
been able to claim a legal-error defense; non-attorneys
make legal mistakes too. They also sometimes receive and
rely upon erroneous legal advice from attorneys. Indeed,
if anyone could satisfy the defense’s requirement of main
taining “procedures reasonably adapted to avoid” a legal
error, it would be a non-attorney debt collector who fol
lows the procedure of directing all legal questions to his
attorney.
The Court also points to “equivocal” evidence from the
Senate Committee’s final markup session, ante, at 21–22,
n. 14, but it minimizes a decidedly unhelpful discussion of
the scope of the defense during the session. In response to
concern that the defense would be construed, like the
TILA defense, as “only protecting against a mathematical
error,” a staff member explained that, because of differ
ences in the nature of the statutes, the FDCPA defense
was broader than the TILA defense and “would apply to
any violation of the act which was unintentional.” See
Senate Committee on Banking, Housing and Urban Af
fairs, Markup Session: S. 1130—Debt Collection Legisla
tion 20–21 (July 26, 1977) (emphasis added). The Chair
6 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
Opinion of SCALIA, J.
man then asked: “So it’s not simply a mathematical error
but any bona fide error without intent?” Id., at 21 (em
phasis added). To which the staff member responded:
“That’s correct.” Ibid. The repeated use of “any”—“any
violation” and “any bona fide error”—supports the natural
reading of the Committee Report’s statement regarding
“the act’s coverage” as including legal errors about the
scope of the Act, rather than just factual errors.
The Court ultimately dismisses the Senate Committee
Report on the ground that “the legislative record taken as
a whole does not lend strong support to Carlisle’s view.”
Ante, at 21. I think it more reasonable to give zero weight
to the other snippets of legislative history that the Court
relies upon, for the reason that the Senate Committee
Report on the very bill that became the FDCPA flatly
contradicts them. It is almost invariably the case that our
opinions benefit not at all from the make-weight use of
legislative history. But today’s opinion probably suffers
from it. Better to spare us the results of legislative-history
research, however painfully and exhaustively conducted it
might have been.
The Court’s textual analysis stands on its own, without
need of (or indeed any assistance from) the two fictions I
have discussed. Accordingly, I concur in the judgment of
the Court.
Cite as: 559 U. S. ____ (2010) 1
KENNEDY, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1200
_________________
KAREN L. JERMAN, PETITIONER v. CARLISLE, MC-
NELLIE, RINI, KRAMER & ULRICH LPA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 21, 2010]
JUSTICE KENNEDY, with whom JUSTICE ALITO joins,
dissenting.
The statute under consideration is the Fair Debt Collec
tion Practices Act (FDCPA), 15 U. S. C. §1692 et seq. The
statute excepts from liability a debt collector’s “bona fide
error[s],” provided that they were “not intentional” and
reasonable procedures have been maintained to avoid
them. §1692k(c). The Court today interprets this excep
tion to exclude legal errors. In doing so, it adopts a ques
tionable interpretation and rejects a straightforward,
quite reasonable interpretation of the statute’s plain
terms. Its decision aligns the judicial system with those
who would use litigation to enrich themselves at the ex
pense of attorneys who strictly follow and adhere to pro
fessional and ethical standards.
When the law is used to punish good-faith mistakes;
when adopting reasonable safeguards is not enough to
avoid liability; when the costs of discovery and litigation
are used to force settlement even absent fault or injury;
when class-action suits transform technical legal viola
tions into windfalls for plaintiffs or their attorneys, the
Court, by failing to adopt a reasonable interpretation to
counter these excesses, risks compromising its own insti
tutional responsibility to ensure a workable and just
litigation system. The interpretation of the FDCPA the
2 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
KENNEDY, J., dissenting
Court today endorses will entrench, not eliminate, some of
the most troubling aspects of our legal system. Convinced
that Congress did not intend this result, I submit this
respectful dissent.
I
A
The FDCPA addresses “abusive debt collection prac
tices,” §1692(e), by regulating interactions between com
mercial debt collectors and consumers. See ante, at 1–2.
The statute permits private suits against debt collectors
who violate its provisions. §1692k(a). An exception
to liability is provided by the so-called bona fide error
defense:
“A debt collector may not be held liable in any action
. . . if the debt collector shows by a preponderance of
evidence that the violation was not intentional and
resulted from a bona fide error notwithstanding the
maintenance of procedures reasonably adapted to
avoid any such error.” §1692k(c).
This language does not exclude mistakes of law and is
most naturally read to include them. Certainly a mis
taken belief about the law is, if held in good faith, a “bona
fide error” as that phrase is normally understood. See
Black’s Law Dictionary 582 (8th ed. 2004) (defining “error”
as “a belief that what is false is true or that what is true is
false,” def. 1); ibid. (“[a] mistake of law or of fact in a
tribunal’s judgment, opinion, or order,” def. 2); ibid. (list
ing categories of legal errors).
The choice of words provides further reinforcement for
this view. The bona fide error exception in §1692k(c)
applies if “the violation was not intentional and resulted
from a bona fide error.” The term “violation” specifically
denotes a legal infraction. See id., at 1600 (“An infraction
or breach of the law; a transgression,” def. 1). The statu
Cite as: 559 U. S. ____ (2010) 3
KENNEDY, J., dissenting
tory term “violation” thus stands in direct contrast to
other provisions of the FDCPA that describe conduct itself.
This applies both to specific terms, e.g., §1692e (“A debt
collector may not use any false, deceptive, or misleading
representation or means in connection with the collection
of any debt”), and to more general ones, e.g., §1692k(e)
(referring to “any act done or omitted in good faith”). By
linking the mens rea requirement (“not intentional”) with
the word “violation”—rather than with the conduct giving
rise to the violation—the Act by its terms indicates that
the bona fide error exception applies to legal errors as well
as to factual ones.
The Court’s precedents accord with this interpretation.
Federal statutes that link the term “violation” with a mens
rea requirement have been interpreted to excuse good
faith legal mistakes. See, e.g., McLaughlin v. Richland
Shoe Co., 486 U. S. 128, 129, 133 (1988) (the phrase “aris
ing out of a willful violation” in the Fair Labor Standards
Act applies where an employer “either knew or showed
reckless disregard for the matter of whether its conduct
was prohibited by the statute”); Trans World Airlines, Inc.
v. Thurston, 469 U. S. 111, 125, 126 (1985) (damages
provision under the Age Discrimination in Employment
Act, which applies “only in cases of willful violations,”
creates liability where an employer “knew or showed
reckless disregard for the matter of whether its conduct
was prohibited by the ADEA” (internal quotation marks
omitted)); cf. Liparota v. United States, 471 U. S. 419, 428
(1985) (prohibition on use of food stamps “ ‘knowing [them]
to have been received . . . in violation of’ ” federal law
“undeniably requires a knowledge of illegality” (emphasis
deleted)). The FDCPA’s use of “violation” thus distin
guishes it from most of the authorities relied upon by the
Court to demonstrate that mistake-of-law defenses are
disfavored. See, e.g., ante, at 7–8 (citing Kolstad v. Ameri
can Dental Assn., 527 U. S. 526 (1999)).
4 JERMAN v. CARLISLE, MCNELLIE, RINI,
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KENNEDY, J., dissenting
The Court’s response is that there is something distinc
tive about the word “willful” that suggests an excuse for
mistakes of law. This may well be true for criminal stat
utes, in which the terms “ ‘knowing,’ ‘intentional’ [and]
‘willful’ ” have been distinguished in this regard. Ante, at
10 (citing Safeco Ins. Co. of America v. Burr, 551 U. S. 47,
57 (2007)). But this distinction is specific to the criminal
context:
“It is different in the criminal law. When the term
‘willful’ or ‘willfully’ has been used in a criminal stat
ute, we have regularly read the modifier as limiting
liability to knowing violations. This reading of the
term, however, is tailored to the criminal law, where
it is characteristically used to require a criminal in
tent beyond the purpose otherwise required for guilt,
or an additional ‘bad purpose,’ or specific intent to vio
late a known legal duty created by highly technical
statutes.” Id., at 57–58, n. 9 (citations omitted).
For this reason, the Court’s citation to criminal cases,
which are themselves inconsistent, see Ratzlaf v. United
States, 510 U. S. 135 (1994), is unavailing. See ante, at
10–11, and n. 7.
In the civil context, by contrast, the word “willful” has
been used to impose a mens rea threshold for liability that
is lower, not higher, than an intentionality requirement.
See Safeco, supra, at 57 (“[W]here willfulness is a statu
tory condition of civil liability, we have generally taken it
to cover not only knowing violations of a standard, but
reckless ones as well”). Avoiding liability under a statute
aimed at intentional violations should therefore be easier,
not harder, than avoiding liability under a statute aimed
at willful violations. And certainly there is nothing in
Thurston or McLaughlin—both civil cases—suggesting
that they would have come out differently had the rele
vant statutes used “intentional violation” rather than
Cite as: 559 U. S. ____ (2010) 5
KENNEDY, J., dissenting
“willful violation.”
B
These considerations suffice to show that §1692k(c) is
most reasonably read to include mistakes of law. Even if
this were merely a permissible reading, however, it should
be adopted to avoid the adverse consequences that must
flow from the Court’s contrary decision. The Court’s read
ing leads to results Congress could not have intended.
1
The FDCPA is but one of many federal laws that Con
gress has enacted to protect consumers. A number of
these statutes authorize the filing of private suits against
those who use unfair or improper practices. See, e.g., 15
U. S. C. §1692k (FDCPA); §1640 (Truth in Lending Act);
§1681n (Fair Credit Reporting Act); 49 U. S. C. §32710(Federal Odometer Disclosure Act); 11 U. S. C. §526(c)(2)
(Bankruptcy Abuse Prevention and Consumer Protection
Act of 2005). Several of these provisions permit a success
ful plaintiff to recover—in addition to actual damages—
statutory damages, attorney’s fees and costs, and in some
cases punitive damages. E.g., 15 U. S. C. §1640(a)(2)
(statutory damages); §1640(a)(3) (attorney’s fees and
costs); §1681n(a)(1)(B) (statutory and punitive damages);
§1681n(a)(1)(B)(3) (costs and attorney’s fees); 49 U. S. C.
§32710(a) (“3 times the actual damages or $1,500, which
ever is greater”); §32710(b) (costs and attorney’s fees); 11
U. S. C. §526(c)(3)(A) (costs and attorney’s fees). Some
also explicitly permit class-action suits. E.g., 15 U. S. C.
§1640(a)(2)(B); §1692k(a)(2)(B).
A collateral effect of these statutes may be to create
incentives to file lawsuits even where no actual harm has
occurred. This happens when the plaintiff can recover
statutory damages for the violation and his or her attorney
will receive fees if the suit is successful, no matter how
slight the injury. A favorable verdict after trial is not
6 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
KENNEDY, J., dissenting
necessarily the goal; often the plaintiff will be just as
happy with a settlement, as will his or her attorney (who
will receive fees regardless). The defendant, meanwhile,
may conclude a quick settlement is preferable to the costs
of discovery and a protracted trial. And if the suit attains
class-action status, the financial stakes rise in magnitude.
See, e.g., §1640(a)(2)(B) (class-action recovery of up to “the
lesser of $500,000 or 1 per centum of the net worth of the
[defendant]”); §1692k(a)(2)(B) (same).
The present case offers an object lesson. Respondents
filed a complaint in state court on behalf of a client that
mistakenly believed Jerman owed money to it. Jerman’s
attorney then informed respondents that the debt had
been paid in full. Respondents confirmed this fact with
the client and withdrew the lawsuit.
This might have been the end of the story. But because
respondents had informed Jerman that she was required
to dispute the debt in writing, she filed a class-action
complaint. It did not matter that Jerman had claimed no
harm as a result of respondents’ actions. Jerman sued for
damages, attorney’s fees, and costs—including class dam
ages of “$500,000 or 1% of defendants’ net worth which
ever is less.” Amended Complaint in No. 1:06–CV–01397
(ND Ohio), p. 4. In addition to merits-related discovery,
Jerman sought information from respondents concerning
the income and net worth of each partner in the firm. At
some point, Jerman proposed to settle with respondents
for $15,000 in damages and $7,500 in attorney’s fees.
Amended Joint App. in No. 07–3964 (CA6), pp. 256–262.
The case illustrates how a technical violation of a complex
federal statute can give rise to costly litigation with incen
tives to settle simply to avoid attorney’s fees.
Today’s holding gives new impetus to this already trou
bling dynamic of allowing certain actors in the system to
spin even good-faith, technical violations of federal law
into lucrative litigation, if not for themselves then for the
Cite as: 559 U. S. ____ (2010) 7
KENNEDY, J., dissenting
attorneys who conceive of the suit. See Federal Home
Loan Mortgage Corp. v. Lamar, 503 F. 3d 504, 513 (CA6
2007) (referring to the “cottage industry” of litigation that
has arisen out of the FDCPA (internal quotation marks
omitted)). It is clear that Congress, too, was troubled by
this dynamic. That is precisely why it enacted a bona fide
error defense. The Court’s ruling, however, endorses and
drives forward this dynamic, for today’s holding leaves
attorneys and their clients vulnerable to civil liability for
adopting good-faith legal positions later determined to be
mistaken, even if reasonable efforts were made to avoid
mistakes.
The Court seeks to brush aside these concerns by noting
that trivial violations will give rise to little in the way of
actual damages and that trial courts “have discretion in
calculating reasonable attorney’s fees under [the] statute.”
Ante, at 23. It is not clear, however, that a court is per
mitted to adjust a fee award based on its assessment of
the suit’s utility. Cf. Perdue v. Kenny A., post, at 9 (noting
a “ ‘strong presumption’ ” of reasonableness that attaches
to a lodestar calculation of attorney’s fees). Though the
Court, properly, does not address the question here, it
acknowledges that some courts have deemed fee awards to
victorious plaintiffs to be “ ‘mandatory,’ ” even if the plain
tiff suffered no damage. Ante, at 23–24, n. 16.
The Court’s second response is that the FDCPA guards
against abusive suits and that suits brought “ ‘in bad faith
and for the purpose of harassment’ ” can lead to a fee
award for the defendant. Ante, at 24 (quoting
§1692k(a)(3)). Yet these safeguards cannot deter suits
based on technical—but harmless—violations of the stat
ute. If the plaintiff obtains a favorable judgment or a
settlement, then by definition the suit will not have been
brought in bad faith. See Emanuel v. American Credit
Exch., 870 F. 2d 805, 809 (CA2 1989) (FDCPA defendant’s
“claim for malicious prosecution cannot succeed unless the
8 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
KENNEDY, J., dissenting
action subject of the claim is unsuccessful”).
Again the present case is instructive. Jerman brought
suit without pointing to any actual harm that resulted
from respondents’ actions. At the time her complaint was
filed, it was an open question in the Sixth Circuit whether
a debt collector could demand that a debt be disputed in
writing, and the district courts in the Circuit had reached
different answers. Ante, at 4, n. 2. The trial court in this
case happened to side with Jerman on the issue, 464
F. Supp. 2d 720, 722–725 (ND Ohio 2006), but it seems
unlikely that the court would have labeled her suit “abu
sive” or “in bad faith” even if it had gone the other way.
There is no good basis for optimism, then, when one
contemplates the practical consequences of today’s deci
sion. Given the complexity of the FDCPA regime, see 16
CFR pt. 901 (2009) (FDCPA regulations), technical viola
tions are likely to be common. Indeed, the Court acknowl
edges that they are inevitable. See ante, at 12. As long as
legal mistakes occur, plaintiffs and their attorneys will
have an incentive to bring suits for these infractions. It
seems unlikely that Congress sought to create a system
that encourages costly and time-consuming litigation over
harmless violations committed in good faith despite rea
sonable safeguards.
When construing a federal statute, courts should be
mindful of the effect of the interpretation on congressional
purposes explicit in the statutory text. The FDCPA states
an objective that today’s decision frustrates. The statu
tory purpose was to “eliminate abusive debt collection
practices” and to ensure that debt collectors who refrain
from using those practices “are not competitively disad
vantaged.” 15 U. S. C. §1692(e) (“Purposes”). The prac
tices Congress addressed involved misconduct that is
deliberate, see §1692(a) (“abusive, deceptive, and unfair
debt collection practices”); §1692(c) (“misrepresentation or
other abusive debt collection practices”), or unreasonable,
Cite as: 559 U. S. ____ (2010) 9
KENNEDY, J., dissenting
see §1692c(a)(1) (prohibiting debt collectors from commu
nicating with debtors at times “which should be known” to
be inconvenient); §1692e(8) (prohibiting the communica
tion of credit card information “which should be known to
be false”). That explains the statutory objective not to
disadvantage debt collectors who “refrain” from abusive
practices—that is to say, debt collectors who do not inten
tionally or unreasonably adopt them. It further explains
why Congress included a good-faith error exception,
which exempts violations that are not intentional or
unreasonable.
In referring to “abusive debt collection practices,” how
ever, surely Congress did not contemplate attorneys who
act based on reasonable, albeit ultimately mistaken, legal
interpretations. A debt collector does not gain a competi
tive advantage by making good-faith legal errors any more
than by making good-faith factual errors. This is ex
pressly so if the debt collector has implemented “proce
dures reasonably adapted to avoid” them. By reading
§1692k(c) to exclude good-faith mistakes of law, the Court
fails to align its interpretation with the statutory
objectives.
The Court urges, nevertheless, that there are policy
concerns on the other side. The Court frets about debt
collectors who “press the boundaries of the Act’s prohibi
tions” and about a potential “ ‘race to the bottom.’ ” Ante,
at 27–28 (quoting Brief for Petitioner 32). For instance, in
its view, interpreting §1692k(c) to encompass legal mis
takes might mean that “nonlawyer debt collectors could
obtain blanket immunity for mistaken interpretations of
the FDCPA simply by seeking the advice of legal counsel.”
Ante, at 27. It must be remembered, however, that
§1692k(c) may only be invoked where the debt collector’s
error is “bona fide” and where “reasonable procedures”
have been adopted to avoid errors. There is no valid or
persuasive reason to assume that Congress would want to
10 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
KENNEDY, J., dissenting
impose liability on a debt collector who relies in good faith
on the reasonable advice of counsel. If anything, we
should expect Congress to think that such behavior should
be encouraged, not discouraged.
The Court also suggests that reading §1692k(c) to in
clude legal errors would encourage litigation over a num
ber of issues: what subjective intent is necessary for liabil
ity; what procedures are necessary to avoid legal mistakes;
what standard applies to procedures adopted by attorney
debt collectors as compared to non-attorney debt collec
tors. Yet these questions are no different from ones al
ready raised by the statute. Whether the debt collector is
an attorney or not, his or her subjective intent must be
assessed before liability can be determined. Procedures to
avoid mistakes—whether legal or otherwise—must be
“reasonable,” which is always a context-specific inquiry.
The Court provides no reason to think that legal errors
raise concerns that differ in these respects from those
raised by non-legal errors.
2
There is a further and most serious reason to interpret
§1692k(c) to include good-faith legal mistakes. In Heintz
v. Jenkins, 514 U. S. 291 (1995), the Court held that at
torneys engaged in debt-collection litigation may be “debt
collectors” for purposes of the FDCPA. In reaching this
conclusion the Court confronted the allegation that its
interpretation would produce the anomalous result that
attorneys could be liable for bringing legal claims against
debtors if those claims ultimately proved unsuccessful.
Id., at 295. The Court rejected this argument. In doing so
it said that §1692k(c) provides debt collectors with a de
fense for their bona fide errors. Id., at 295.
Today the Court relies on Heintz to allay concerns about
the practical implications of its decision. Ante, at 25. Yet
the Court reads §1692k(c) to exclude mistakes of law,
Cite as: 559 U. S. ____ (2010) 11
KENNEDY, J., dissenting
thereby producing the very result that Heintz said would
not come about. Attorneys may now be held liable for
taking reasonable legal positions in good faith if those
positions are ultimately rejected.
Attorneys are duty-bound to represent their clients with
diligence, creativity, and painstaking care, all within the
confines of the law. When statutory provisions have not
yet been interpreted in a definitive way, principled advo
cacy is to be prized, not punished. Surely this includes
offering interpretations of a statute that are permissible,
even if not yet settled. The FDCPA is a complex statute,
and its provisions are subject to different interpretations.
See, e.g., ante, at 5, n. 4 (identifying splits of authority on
two different FDCPA issues); Brief for National Associa
tion of Retail Collection Attorneys as Amicus Curiae 5–6
(identifying another split); see also ante, at 12. Attorneys
will often find themselves confronted with a statutory
provision that is susceptible to different but still reason
able interpretations.
An attorney’s obligation in the face of uncertainty is to
give the client his or her best professional assessment of
the law’s mandate. Under the Court’s interpretation of
the FDCPA, however, even that might leave the attorney
vulnerable to suit. For if the attorney proceeds based on
an interpretation later rejected by the courts, today’s
decision deems that to be actionable as an intentional
“violation,” with personal financial liability soon to follow.
Indeed, even where a particular practice is compelled by
existing precedent, the attorney may be sued if that prece
dent is later overturned.
These adverse consequences are evident in the instant
case. When respondents filed a foreclosure complaint
against Jerman on behalf of their client, they had no
reason to doubt that the debt was valid. They had every
reason, furthermore, to believe that they were on solid
legal ground in asking her to dispute the amount owed in
12 JERMAN v. CARLISLE, MCNELLIE, RINI,
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KENNEDY, J., dissenting
writing. See, e.g., Graziano v. Harrison, 950 F. 2d 107,
112 (CA3 1991) (written objection is necessary for coherent
statutory scheme and protects the debtor by “creat[ing] a
lasting record of the fact that the debt has been disputed”).
When Jerman disputed the debt, respondents verified that
the debt had been satisfied and withdrew the lawsuit.
Respondents acted reasonably at every step, and yet may
still find themselves liable for a harmless violation.
After today’s ruling, attorneys can be punished for
advocacy reasonably deemed to be in compliance with the
law or even required by it. This distorts the legal process.
Henceforth, creditors’ attorneys of the highest ethical
standing are encouraged to adopt a debtor-friendly inter
pretation of every question, lest the attorneys themselves
incur personal financial risk. It is most disturbing that
this Court now adopts a statutory interpretation that will
interject an attorney’s personal financial interests into the
professional and ethical dynamics of the attorney-client
relationship. These consequences demonstrate how un
tenable the Court’s statutory interpretation is and counsel
in favor of a different reading. See Milavetz, Gallop &
Milavetz, P. A. v. United States, 559 U. S. ___, ___, n. 5
(2010) (slip op., at 16, n. 5) (rejecting a reading of federal
law that “would seriously undermine the attorney-client
relationship”).
The Court’s response is that this possibility is nothing
new, because attorneys are already duty-bound to comply
with the law and with standards of professional conduct.
Attorneys face sanctions for harassing behavior and frivo
lous litigation, and in some cases misconduct may give rise
to personal liability. Ante, at 25–26.
This response only underscores the problem with the
Court’s approach. By reading §1692k(c) to exclude mis
takes of law, the Court ensures that attorneys will face
liability even when they have done nothing wrong—
indeed, even when they have acted in accordance with
Cite as: 559 U. S. ____ (2010) 13
KENNEDY, J., dissenting
their professional responsibilities. Here respondents’ law
firm did not harass Jerman; it did not file a frivolous suit
against her; it did not intentionally mislead her; it caused
her no damages or injury. The firm acted upon a reason
able legal interpretation that the District Court later
thought to be mistaken. The District Court’s position, as
all concede, was in conflict with other published, reasoned
opinions. Ante, at 4, n. 2. (And in the instant case, nei
ther the Court of Appeals nor this Court has decided the
issue. See ante, at 5, n. 3.) If the law firm can be pun
ished for making a good-faith legal error, then to be safe
an attorney must always stick to the most debtor-friendly
interpretation of the statute, lest automatic liability follow
if some later decision adopts a different rule. This dy
namic creates serious concerns, not only for the attorney
client relationship but also for First Amendment rights.
Cf. Legal Services Corporation v. Velazquez, 531 U. S. 533,
545 (2001) (law restricting arguments available to attor
neys “prohibits speech and expression upon which courts
must depend for the proper exercise of the judicial
power”). We need not decide that these concerns rise to
the level of an independent constitutional violation, see
ante, at 29, n. 21, to recognize that they counsel against a
problematic interpretation of the statute. See Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Constr.
Trades Council, 485 U. S. 568, 575 (1988) (“[W]here an
otherwise acceptable construction of a statute would raise
serious constitutional problems, the Court will construe
the statute to avoid such problems unless such construc
tion is plainly contrary to the intent of Congress”).
JUSTICE BREYER—although not the Court—argues that
an attorney faced with legal uncertainty only needs to
turn to the Federal Trade Commission (FTC) for an advi
sory opinion. An attorney’s actions in conformity with the
opinion will be shielded from liability. Ante, at 1 (concur
ring opinion) (citing 15 U. S. C. §1692k(e)). This argument
14 JERMAN v. CARLISLE, MCNELLIE, RINI,
KRAMER & ULRICH LPA
KENNEDY, J., dissenting
misconceives the practical realities of litigation. Filings
and motions are made under pressing time constraints;
arguments must be offered quickly in reply; and strategic
decisions must be taken in the face of incomplete informa
tion. Lawyers in practice would not consider this alterna
tive at all realistic, particularly where the defense is
needed most.
And even were there time to generate a formal request
to the FTC and wait an average of three or four months for
a response (assuming the FTC responds at all), the argu
ment assumes that an ambiguity in the statute is obvious,
not latent, that the problem is at once apparent, and that
a conscious decision to invoke FTC procedures can be
made. But the problem in many instances is that inter
pretive alternatives are not at once apparent. All this may
explain why, in the past decade, the FTC has issued only
four opinions in response to just seven requests. See Tr. of
Oral Arg. 27–28, 30. The FTC advisory process does not
remedy the difficulties that the Court’s opinion will cause.
Even if an FTC opinion is obtained, moreover, the ethi
cal dilemma of counsel is not resolved. If the FTC adopts
a position unfavorable to the client, the attorney may still
believe the FTC is mistaken. Yet under today’s decision,
the attorney who in good faith continues to assert a rea
sonable position to the contrary does so at risk of personal
liability. This alters the ethical balance central to the
adversary system; and it is, again, a reason for the Court
to adopt a different, but still reasonable, interpretation to
avoid systemic disruption.
II
The Court does not assert that its interpretation is
clearly commanded by the text. Instead, its decision relies
on an amalgam of arguments that, taken together, are
said to establish the superiority of its preferred reading.
This does not withstand scrutiny.
Cite as: 559 U. S. ____ (2010) 15
KENNEDY, J., dissenting
First, the Court relies on the maxim that “ ‘ignorance of
the law will not excuse any person, either civilly or crimi
nally.’ ” Ante, at 6 (quoting Barlow v. United States, 7 Pet.
404, 411 (1833)). There is no doubt that this principle “is
deeply rooted in the American legal system.” Cheek v.
United States, 498 U. S. 192, 199 (1991). Yet it is unhelp
ful to the Court’s position. The maxim the Court cites is
based on the premise “that the law is definite and know
able,” so that all must be deemed to know its mandate.
Ibid. See also O. Holmes, The Common Law 48 (1881)
(“[T]o admit the excuse [of ignorance] at all would be to
encourage ignorance where the law-maker has determined
to make men know and obey”). In other words, citizens
cannot avoid compliance with the law simply by demon
strating a failure to learn it.
The most straightforward application of this principle is
to statutory provisions that delineate a category of prohib
ited conduct. These statutes will not be read to excuse
legal mistakes absent some indication that the legislature
meant to do so. See, e.g., Armour Packing Co. v. United
States, 209 U. S. 56, 70, 85–86 (1908) (rejecting the defen
dant’s attempt to read a mistake-of-law defense into a
criminal statute forbidding shippers to “obtain or dispose
of property at less than the regular rate established”);
ante, at 7–8 (discussing a federal statute imposing liability
for “intentional discrimination”).
In the present case, however, the Court is not asked
whether a mistake of law should excuse respondents from
a general prohibition that would otherwise cover their
conduct. Rather, the issue is the scope of an express ex
ception to a general prohibition. There is good reason to
think the distinction matters. It is one thing to presume
that Congress does not intend to create an exception to a
general rule through silence; it is quite another to pre
sume that an explicit statutory exception should be con
fined despite the existence of other sensible interpreta
16 JERMAN v. CARLISLE, MCNELLIE, RINI,
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KENNEDY, J., dissenting
tions. Cf. Kosak v. United States, 465 U. S. 848, 853, n. 9
(1984) (although the Federal Tort Claims Act waives
sovereign immunity, “the proper objective of a court at
tempting to construe [an exception to the Act] is to identify
those circumstances which are within the words and
reason of the exception—no less and no more” (internal
quotation marks omitted)). This is all the more true
where the other possible interpretations are more consis
tent with the purposes of the regulatory scheme. By its
terms, §1692k(c) encompasses—without limitation—all
violations that are “not intentional and resul[t] from a
bona fide error.” The Court provides no reason to read
this language narrowly.
The Court responds that “our precedents have made
clear for more than 175 years” that the presumption
against mistake-of-law defenses applies even to explicit
statutory exceptions. Ante, 6–7, n. 5. By this the Court
means that one case applied the presumption to an excep
tion more than 175 years ago. In Barlow, the Court de
clined to excuse an alleged mistake of law despite a statu
tory provision that excepted “false denomination[s] . . .
[that] happened by mistake or accident, and not from any
intention to defraud the revenue.” 7 Pet., at 406. In
construing this language, the Barlow Court noted that it
demonstrated congressional intent to exclude mistakes of
law:
“The very association of mistake and accident, in this
[connection], furnishes a strong ground to presume
that the legislature had the same classes of cases in
view . . . . Mistakes in the construction of the law,
seem as little intended to be excepted by the proviso,
as accidents in the construction of the law.” Id., at
411–412.
Unlike the provision at issue in Barlow, §1692k(c) gives no
indication that its broad reference to “bona fide error[s]”
Cite as: 559 U. S. ____ (2010) 17
KENNEDY, J., dissenting
was meant to exclude legal mistakes.
Even if statutory exceptions should normally be con
strued to exclude mistakes of law, moreover, that guide
line would only apply absent intent to depart from the
general rule. There is no doubt that Congress may create
a mistake-of-law defense; the question is whether it has
done so here. See Ratzlaf, 510 U. S, at 149. As explained
above, see Part I–A, supra, Congress has made its choice
plain by using the word “violation” in §1692k(c) to indicate
that mistakes of law are to be included.
Second, the Court attempts to draw a contrast between
§1692k(c) and the administrative penalties in the Federal
Trade Commission Act (FTC Act), 38 Stat. 717, 15 U. S. C.
§41 et seq. Under the FTC Act, a debt collector may face
civil penalties of up to $16,000 per day for acting with
“actual knowledge or knowledge fairly implied on the basis
of objective circumstances that [an] act is” prohibited
under the FDCPA. §§45(m)(1)(A), (C); 74 Fed. Reg. 858(2009) (amending 16 CFR §1.98(d) (2009)). The Court
reasons that the FTC provision is meant to provide rela
tively harsh penalties for intentional violations. By con
trast, the argument continues, the penalties in the FDCPA
itself must cover—and hence §1692k(c) must not excuse—
unintentional violations. Ante, at 8–9.
The argument rests on a mistaken premise—namely,
that §1692k(c) must immunize all legal errors or none.
This misreads the statute. As the text states, it applies
only to “bona fide” errors committed despite “the mainte
nance of procedures reasonably adapted to avoid” these
mistakes. So under a sensible reading of the statute,
(1) intentional violations are punishable under the height
ened penalties of the FTC Act; (2) unintentional violations
are generally subject to punishment under the FDCPA;
and (3) a defendant may escape liability altogether by
proving that a violation was based on a bona fide error
and that reasonable error-prevention procedures were in
18 JERMAN v. CARLISLE, MCNELLIE, RINI,
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place. There is nothing incongruous in this scheme.
Indeed, for the reasons described in Part I, supra, it is far
less peculiar than the Court’s reading, which would sub
ject attorneys to liability for good-faith legal advocacy,
even advocacy based on an accurate assessment of then
existing case law.
Third, in construing §1692k(c) to exclude legal errors,
the Court points to the requirement that a debt collector
maintain “procedures reasonably adapted to avoid any
such error.” The Court asserts that this phrase most
naturally evokes procedures to avoid clerical or factual
mistakes. There is nothing natural in reading this phrase
contrary to its plain terms, which do not distinguish be
tween different categories of mistakes. Nor is there any
thing unusual about procedures adopted to avoid legal
mistakes. The present case is again instructive. Accord
ing to the District Court, respondents designated a lead
FDCPA compliance attorney, who regularly attended
conferences and seminars; subscribed to relevant periodi
cals; distributed leading FDCPA cases to all attorneys;
trained new attorneys on their statutory obligations; and
held regular firm-wide meetings on FDCPA issues. See
538 F. 3d 469, 477 (CA6 2008). These procedures are not
only “reasonably adapted to avoid [legal] error[s],” but also
accord with the FDCPA’s purposes.
The Court argues, nonetheless, that the statute contem
plates only clerical or factual errors, for these are the type
of errors that can mostly naturally be addressed through
“ ‘a series of steps followed in a regular orderly definite
way.’ ” Ante, at 12 (quoting Webster’s Third New Interna
tional Dictionary 1807 (1976)). As made clear by the steps
that respondents have taken to ensure FDCPA compli
ance, this is simply not true. The Court also speculates
that procedures to avoid clerical or factual errors will be
easier to implement than procedures to avoid legal errors.
Even if this were not pure conjecture, it has nothing to do
Cite as: 559 U. S. ____ (2010) 19
KENNEDY, J., dissenting
with what the statute requires. The statute does not talk
about procedures that eliminate all—or even most—
errors. It merely requires procedures “reasonably adapted
to avoid any such error.” The statute adopts the sensible
approach of requiring reasonable safeguards if liability is
to be avoided. This approach, not the Court’s interpreta
tion, reflects the reality of debt-collection practices.
Fourth, the Court argues that construing §1692k(c) to
encompass a mistake-of-law defense “is at odds with” the
role contemplated for the FTC. Ante, at 13. This is so, it
contends, because the FTC is authorized to issue advisory
opinions, and the statute shields from liability “any act
done or omitted in good faith in conformity” with such
opinions. §1692k(e). But why, asks the Court, would a
debt collector seek an opinion from the FTC if immunity
under §1692k(c) could be obtained simply by relying in
good faith on advice from private counsel? Going further,
the Court suggests that debt collectors might “have an
affirmative incentive not to seek an advisory opinion to
resolve ambiguity in the law, which would then prevent
them from claiming good-faith immunity for violations.”
Ante, at 13.
There is little substance to this line of reasoning. As the
Court itself acknowledges, debt collectors would have an
incentive to invoke the FTC safe harbor even if §1692k(c)
is construed to include a mistake-of-law defense, because
the safe harbor provides a “more categorical immunity.”
Ante, at 13, n. 8. Additionally, if a debt collector avoids
seeking an advisory opinion from the FTC out of concern
that the answer will be unfavorable, that seems quite at
odds with saying that his or her ignorance is “bona fide.”
It should be noted further that the Court’s concern
about encouraging ignorance could apply just as well to
§45(m)(1)(A). That provision subjects a debt collector to
harsh penalties for violating an FTC rule “with actual
knowledge or knowledge fairly implied on the basis of
20 JERMAN v. CARLISLE, MCNELLIE, RINI,
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objective circumstances that such act is unfair or deceptive
and is prohibited by such rule.” No one contends that this
will encourage debt collectors to avoid learning the FTC’s
rules. Yet there is no doubt that §45(m)(1)(A) permits a
mistake-of-law defense.
All this assumes, of course, that obtaining an FTC advi
sory opinion will be a reasonably practical possibility. For
the reasons stated above, see Part I–B–2, supra, this is to
be doubted. Even the Court recognizes the limited role
that the FTC has played. Ante, at 25 (“[E]vidence of pre
sent administrative practice makes us reluctant to place
significant weight on §1692k(e) as a practical remedy”).
Fifth, the Court asserts that “[a]ny remaining doubt”
about its preferred interpretation is dispelled by the
FDCPA’s statutory history. The Court points to the fact
that §1692k(c) mirrors a bona fide error defense provision
in the earlier enacted Truth in Lending Act (TILA), argu
ing that Congress sought to incorporate into the FDCPA
the view of the Courts of Appeals that the TILA defense
applied only to clerical errors. Ante, at 14–15. As JUSTICE
SCALIA points out, the Court’s claims of judicial uniformity
are overstated. See ante, at 2–3 (opinion concurring in
part and concurring in judgment). They rest on three
Court of Appeals decisions, which are contradicted by
several District Court opinions and a State Supreme Court
opinion—hardly a consistent legal backdrop against which
to divine legislative intent. The Court also ignores the fact
that those three Courts of Appeals had construed the
TILA provision to apply only to clerical errors. See Ives v.
W. T. Grant Co., 522 F. 2d 749, 758 (CA2 1975); Haynes v.
Logan Furniture Mart, Inc., 503 F. 2d 1161, 1167 (CA7
1974); Palmer v. Wilson, 502 F. 2d 860, 861 (CA9 1974).
The Court therefore cannot explain why it reads §1692k(c)
more broadly to encompass factual mistakes as well.
It is of even greater significance that in 1980 Congress
amended the TILA’s bona fide error exception explicitly to
Cite as: 559 U. S. ____ (2010) 21
KENNEDY, J., dissenting
exclude “an error of legal judgment with respect to a per
son’s obligations under [the TILA].” See Truth in Lending
Simplification and Reform Act, §615 (c), 94 Stat. 181. This
amendment would have been unnecessary if Congress had
understood the pre-1980 language to exclude legal errors.
The natural inference is that the pre-amendment TILA
language—the same language later incorporated nearly
verbatim into §1692k(c)—was understood to cover those
errors.
The Court’s responses to this point are perplexing. The
Court first says that the 1980 amendment did not “obvi
ous[ly]” change the scope of the TILA’s bona fide error
defense, given the “uniform interpretation” that the de
fense had been given in the Courts of Appeals. Ante, at
17. The Court thus prefers to make an entire statutory
amendment surplusage rather than abandon its dubious
assumption that Congress meant to ratify a nascent Court
of Appeals consensus. Cf. Corley v. United States, 556
U. S. ___, ___ (2009) (slip op., at 9) (“[O]ne of the most
basic interpretive canons [is] that [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; second
alteration in original)). (Without any evidence, the Court
speculates that perhaps the amendment was intended to
codify existing judicial interpretations that excluded legal
errors. Ante, at 17–18. If those judicial interpretation
were truly as uniform as the Court suggests—and
the presumption against mistake-of-law defenses as
ironclad—there would have been no need for such a
recodification.)
The Court is hesitant as well to give the 1980 amend
ment weight because Congress “has not expressly included
mistakes of law in any of the numerous bona fide error
defenses, worded in pertinent part identically to §1692k(c),
elsewhere in the U. S. Code.” Ante, at 18 (emphasis in
22 JERMAN v. CARLISLE, MCNELLIE, RINI,
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original). In other words, the Court refuses to read
§1692k(c) to cover mistakes of law because other bona fide
error statutes do not expressly refer to such mistakes. But
the reverse should be true: If other bona fide error provi
sions included mistake-of-law language but §1692k(c) did
not, we might think that the omission in §1692k(c) sig
naled Congress’s intent to exclude mistakes of law. The
absence of mistake-of-law language in §1692k(c) is conse
quently less noteworthy because other statutes also omit
such language.
The Court emphasizes that some bona fide error de
fenses, like the one in the current version of the TILA,
expressly exclude legal errors from their scope. Ante, at
18 (citing 12 U. S. C. §4010(c)(2)). Yet this also can prove
the opposite of what the Court says it does: If a bona fide
error defense were generally assumed not to include legal
mistakes (as the Court argues), there would be no need to
expressly exclude them. It is only if the defense would
otherwise include such errors that exclusionary language
becomes necessary. By writing explicit exclusionary lan
guage into the TILA (and some other federal provisions),
Congress has indicated that those provisions would other
wise cover good-faith legal errors.
* * *
For these reasons, §1692k(c) is best read to encompass
mistakes of law. I would affirm the judgment of the Court
of Appeals.