May 16, 2016

Supreme Court Decides Sheriff v. Gillie

On May 16, 2016, the U.S. Supreme Court decided Sheriff v. Gillie, No. 15-338, holding that special counsel retained by Ohio’s Attorney General to collect debts on the state’s behalf did not violate the Fair Debt Collection Practices Act (FDCPA) by sending letters on the Attorney General’s letterhead.

Ohio law permits its Attorney General to hire “special counsel” to act on the Attorney General’s behalf in collecting certain debts owed to the state. The Attorney General requires these special counsel to use the Attorney General’s official letterhead in communicating with debtors. The Ohio Attorney General appointed Mark Sheriff and Eric Jones as two such special counsel. And as directed by the Attorney General, employees of Sheriff and Jones sent debt-collection letters on Attorney General letterhead. The letters identified Sheriff or Jones (as the case may be) as “special counsel” or “outside counsel” for the Attorney General’s office.

Pamela Gillie and Hazel Meadows received letters from Jones and Sheriff (respectively), and filed a putative class action in federal district court, asserting that Jones and Sheriff and their firms had violated the FDCPA by making “false, deceptive, or misleading” representations in connection with debt collection—and specifically by issuing a “written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of … any State, or which creates a false impression as to its source, authorization, or approval.” 15 U.S.C. § 1692e(9). The Ohio Attorney General intervened as a defendant, and argued that special counsel should be deemed officers of the State, and therefore excluded from the FDCPA under 15 U.S.C. § 1692a(6)(C), which excludes “any officer or employee of the United States or any State to the extent that collecting . . . any debt is in the performance of his official duties.”

The District Court granted summary judgment in favor of the special counsel, concluding that they are “officers” of the State of Ohio and that, in any event, their use of the Attorney General’s letterhead was not false or misleading. But the Sixth Circuit reversed, holding that special counsel are independent contractors, and not “officers” of the State, and concluding that there were genuine issues of material fact as to whether the attorneys’ communications were misleading under the FDCPA.

The Supreme Court reversed, but did not reach the first question – whether special counsel qualify as state officers. The Court instead assumed (without deciding) that special counsel are not state officers, and went on to hold that the attorneys’ communications were not false or misleading under the FDCPA because “their use of the Attorney General’s letterhead accurately conveys that special counsel act on behalf of the Attorney General.” The Court noted that the letterhead used identifies the principal – the Attorney General of Ohio – and the signature block identifies the author as a private lawyer hired as special counsel to the Attorney General. The Court also focused on the nature of the relationship between the Attorney General and special counsel; that is, special counsel are fulfilling certain responsibilities of the Attorney General’s office and work closely with attorneys in the Attorney General’s office. Thus, “a debtor’s impression that a letter from special counsel is a letter from the Attorney General’s Office is scarcely inaccurate.”

Justice Ginsburg delivered the opinion for a unanimous Court.

Download Opinion of the Court.

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