Jillian McAdory v. Dnf Associates, LLC ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JILLIAN MCADORY, No. 18-35923
Plaintiff-Appellant,
D.C. No.
v. 3:17-cv-00777-HZ
M.N.S. & ASSOCIATES, LLC,
foreign limited liability company, OPINION
Defendant,
and
DNF ASSOCIATES, LLC, foreign
limited liability company,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted October 24, 2019
Portland, Oregon
Filed March 9, 2020
Before: Jerome Farris, Carlos T. Bea, and
Morgan Christen, Circuit Judges.
Opinion by Judge Christen;
Dissent by Judge Bea
2 MCADORY V. DNF ASSOCIATES
SUMMARY*
Fair Debt Collection Practices Act
Reversing the district court’s dismissal of an action under
the Fair Debt Collection Practices Act and remanding, the
panel held that a business that bought and profited from
consumer debts, but outsourced direct collection activities,
qualified as a “debt collector” subject to the requirements of
the Act.
Joining the Third Circuit, the panel held that an entity that
otherwise meets the “principal purpose” definition of debt
collector under 15 U.S.C. § 1692(a)(6) (defining debt
collector as “any business the principal purpose of which is
the collection of any debts”) cannot avoid liability under the
FDCPA merely by hiring a third party to perform its debt
collection activities.
Dissenting, Judge Bea wrote that the complaint failed to
allege that defendant acted directly in any way to violate
plaintiff’s rights under the FDCPA; plaintiff did not
adequately allege that defendant’s “principal purpose” was
the “collection of any debts;” and the word “collection” must,
in context, describe the action of collecting.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MCADORY V. DNF ASSOCIATES 3
COUNSEL
Adam R. Pulver (argued) and Scott L. Nelson, Public Citizen
Litigation Group, Washington, D.C.; Kelly D. Jones,
Portland, Oregon; Nadia Dahab, Stolle Berne, Portland,
Oregon; for Plaintiff-Appellant.
Brendan H. Little (argued), Lippes Mathias Wexler Friedman
LLP, Buffalo, New York, for Defendant-Appellee.
OPINION
CHRISTEN, Circuit Judge:
This appeal requires us to consider whether a business
that buys and profits from consumer debts, but outsources
direct collection activities, qualifies as a “debt collector” for
purposes of the Fair Debt Collection Practices Act (FDCPA),
15 U.S.C § 1692 et seq. Plaintiff McAdory’s complaint
alleged that DNF Associates, LLC qualified under the
statute’s first definition: “any business the principal purpose
of which is the collection of any debts.” 15 U.S.C.
§ 1692a(6). The complaint did not allege that DNF interacted
directly with consumers. The district court granted DNF’s
motion to dismiss, concluding that the operative complaint
failed to state a claim against DNF because debt buyers that
do not directly interact with consumers to collect debts do not
qualify as debt collectors.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we reverse the district court’s judgment. We join the Third
Circuit in concluding that an entity that otherwise meets the
“principal purpose” definition of debt collector cannot avoid
4 MCADORY V. DNF ASSOCIATES
liability under the FDCPA merely by hiring a third party to
perform its debt collection activities. Barbato v. Greystone
All., LLC, 916 F.3d 260, 261 (3d Cir.), cert. denied sub nom.,
Crown Asset Mgmt. LLC v. Barbato, 140 S. Ct. 245 (2019).
I. Background
The operative complaint alleged that Jillian McAdory
owed a debt to Kay Jewelers, and that DNF purchased the
debt after McAdory stopped making timely payments. The
complaint also alleged that McAdory first learned of DNF
when she received a letter sent by First Choice Assets
informing her that she owed a debt to DNF, and that
McAdory took no action in response to the letter because she
did not recognize DNF. McAdory averred that four months
later, she received a voicemail message from an unidentified
caller that referred to “asset verification” and an expedited
“process for enforcement review.” According to the
complaint, McAdory returned the call and spoke with
someone who identified himself as an MNS agent, implied
that he was a lawyer, and indicated that McAdory would be
sued for the unpaid debt. McAdory agreed to pay the debt
during a subsequent telephone call with the same MNS agent.
The agent emailed a document to McAdory that
memorialized the agreement the same day. Finally, the
complaint alleged that contrary to the terms of the parties’
agreement, MNS prematurely withdrew funds before an
authorized payment date.
McAdory alleged that DNF and MNS committed eight
separate violations of the FDCPA relating to MNS’s
telephonic message and withdrawal of funds. The complaint
alleged that DNF violated the FDCPA by using “false,
deceptive, or misleading representation or means in
MCADORY V. DNF ASSOCIATES 5
connection with the collection of any debt,” 15 U.S.C.
§ 1692e, and “unfair or unconscionable means to collect or
attempt to collect any debt,” id. § 1692f. The complaint did
not allege that First Choice Assets violated the FDCPA or
name First Choice as a defendant.
The operative complaint alleged that DNF is a debt
collector because its principal purpose is “the collection of
defaulted consumer debts that it purchases for pennies on the
dollar,” from which it “derives the vast majority of its
income.” It also alleged that DNF contracted with a network
of other debt collectors that directly contacted consumers in
DNF’s name and at its direction. According to the complaint,
DNF set the “parameters of the terms and amounts of the
payments made by the debtors.” The complaint did not allege
that DNF directly contacted McAdory about her debt.
Instead, McAdory claimed that DNF was vicariously and
jointly liable for MNS’s violations.
DNF moved to dismiss McAdory’s operative complaint,
arguing that a debt buyer that outsources collection activities
to third-party contractors does not meet the FDCPA’s
definition of a “debt collector.” The motion further argued
that because DNF was not a debt collector, it could not be
vicariously liable for MNS’s alleged FDCPA violations.
The district court granted DNF’s motion to dismiss, ruling
that McAdory’s complaint failed to state a claim against DNF
because “[d]ebt purchasing companies like DNF who have no
interactions with debtors and merely contract with third
parties to collect on the debts they have purchased simply do
not have the principal purpose of collecting debts.” The court
concluded there was little to suggest that Congress considered
these companies when it drafted the FDCPA, and because the
6 MCADORY V. DNF ASSOCIATES
FDCPA’s substantive provisions govern interactions between
consumers and debt collectors, the court reasoned that
Congress intended the statute to apply only to those who
directly interact with consumers.
The district court acknowledged that a debt purchasing
company “may be a debt collector in the literal sense that it
purchases debt for the purpose of making money by hiring a
third party to collect on that debt.” But the court reasoned
that “[t]he fact that a business benefits from the collection of
debt by an entirely separate third party does not necessarily
make the principal purpose of that business the collection of
those debts.”
McAdory moved for leave to file a second amended
complaint, seeking to add supplemental allegations that DNF
filed collection lawsuits against consumers and was licensed
as a debt collection agency in multiple states. The district
court construed McAdory’s filing as a motion for
reconsideration and denied it. The court also clarified that it
had dismissed DNF from the lawsuit with prejudice.
McAdory obtained an entry of default against MNS,
which had not responded to her complaint, and moved for
entry of a separate final judgment as to DNF pursuant to
Federal Rule of Civil Procedure 54(b). The district court
granted the motion, and allowed McAdory to seek review of
its order granting DNF’s motion to dismiss. The court
observed that the issue was “a close one with courts around
the country issuing conflicting decisions.” McAdory timely
appealed, and the parties agree that the question presented is
whether a business must have direct interaction with
consumers to qualify as a debt collector pursuant to the
FDCPA.
MCADORY V. DNF ASSOCIATES 7
II. Standard of Review
We review de novo the district court’s order granting a
motion to dismiss for failure to state a claim. Syed v. M-I,
LLC, 853 F.3d 492, 499 (9th Cir. 2017). We accept the
complaint’s well-pleaded allegations as true and construe all
inferences in the light most favorable to the nonmoving party.
Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1207 (9th
Cir. 2013).
III. Discussion
In 1977, Congress enacted the FDCPA “to eliminate
abusive debt collection practices by debt collectors, to insure
that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and
to promote consistent State action to protect consumers
against debt collection abuses.” 15 U.S.C. § 1692(e).
Concerned that unfair debt collection tactics contribute to
personal bankruptcies, family instability, job loss, and
privacy intrusions, id. § 1692(a), Congress imposed
affirmative requirements on debt collectors and prohibited
certain debt collection practices, Rotkiske v. Klemm, 140 S.
Ct. 355, 357 (2019). Because the statute is broadly remedial,
we liberally construe the FDCPA in favor of consumers. See
Hernandez v. Williams, Zinman & Parham PC, 829 F.3d
1068, 1078–79 (9th Cir. 2016).
The FDCPA applies to debt collectors, which the statute
defines in two alternative ways: (1) “any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of
any debts,” or (2) “[any person] who regularly collects or
attempts to collect, directly or indirectly, debts owed or due
8 MCADORY V. DNF ASSOCIATES
or asserted to be owed or due another.”1 15 U.S.C.
§ 1692a(6); see also Schlegel, 720 F.3d at 1208. We refer to
the first definition as the “principal purpose” prong (those
engaged in “any business the principal purpose of which is
the collection of any debts”), and we refer to the second
definition as the “regularly collects” prong (those “who
regularly collect[] . . . debts owed or due another”).
15 U.S.C. § 1692a. McAdory’s operative complaint alleged
that DNF qualified as a debt collector under the principal
purpose prong.
McAdory argues the district court erred by ruling that the
FDCPA’s principal purpose prong—its first definition of
“debt collector”—requires direct interaction with consumers.
We begin by examining the plain meaning of the statutory
text. See Jimenez v. Quarterman, 555 U.S. 113, 118 (2009)
(observing that the plain language is the starting point of
statutory construction); Seldovia Native Ass’n v. Lujan,
904 F.2d 1335, 1341 (9th Cir. 1990) (noting that courts
determine plain meaning by looking to the language and
design of the statute as a whole).
The parties agree that the FDCPA uses the phrase
“principal purpose” to refer to a business’s most important
goal or objective. See Barbato, 916 F.3d at 267.
Determining a business’s principal purpose thus involves
comparing and prioritizing its objectives, not analyzing the
means employed to achieve them. Accordingly, the relevant
question in assessing a business’s principal purpose is
whether debt collection is incidental to the business’s
1
The statute also provides other definitions of “debt collector,” and
various exceptions to the statutory definitions, none of which are pertinent
to this appeal. See 15 U.S.C. § 1692a(6).
MCADORY V. DNF ASSOCIATES 9
objectives or whether it is the business’s dominant, or
principal, objective. By contrast, the FDCPA’s second
definition of “debt collector” depends upon a person’s regular
activities—i.e., whether the person “regularly collects . . .
debts.” 15 U.S.C. § 1692a(6).
The Third Circuit recently examined the principal purpose
prong in Barbato v. Greystone Alliance, LLC, 916 F.3d 260
(3d Cir. 2019). There, the defendant argued it was not a debt
collector because it took no collection action towards
consumers, and because its principal purpose “was not the
collection of debt but, rather, its acquisition.” 916 F.3d
at 263. Barbato was an appeal from a summary judgment
ruling, and the record reflected that the defendant’s “only
business [was] the purchasing of debts for the purpose of
collecting on those debts, and . . . without the collection of
those debts, [the defendant] would cease to exist.” Id. at 268.
The Third Circuit affirmed the trial court’s ruling that the
defendant qualified as a debt collector under the principal
purpose prong, id. at 261, 263, because “[t]he existence of a
middleman does not change the essential nature—the
‘principal purpose’—of [the defendant’s] business.” Id.
at 268.
DNF makes the same argument here, asserting that its
principal purpose is not collecting debt, but “buying debt for
investment purposes” to “profit on its investment.” McAdory
objects that DNF raises this argument for the first time on
appeal. McAdory argues that merely acquiring consumer
debt cannot truly be DNF’s principal purpose, because if its
only goal or objective were to acquire debt, it would soon go
out of business. McAdory maintains that “the only conduct
DNF undertakes to ‘profit’ off the debts it buys is to hire
others to collect it.” Although McAdory’s point is well-
10 MCADORY V. DNF ASSOCIATES
taken, it is nonetheless premature because DNF’s argument
about its principal purpose highlights a factual dispute. At
the 12(b)(6) stage, we accept as true all well-pleaded factual
allegations in the complaint and construe them in the light
most favorable to McAdory. Schlegel, 720 F.3d at 1207.
Here, the complaint alleged that DNF’s principal purpose was
to buy consumer debts in order to collect on them, and that
this is how DNF generated most or all of its income. Because
McAdory’s complaint sufficiently alleged that DNF’s
principal purpose was to collect debt, we need not consider
DNF’s newly raised fact-based argument about its principal
purpose. See, e.g., Dahlia v. Rodriguez, 735 F.3d 1060, 1076
(9th Cir. 2013) (“Because the district court granted a Rule
12(b)(6) motion to dismiss, our task is not to resolve any
factual dispute, but merely to determine whether [the
plaintiff’s] allegations” state a plausible claim.). A claim has
facial plausibility when a plaintiff “pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).2
DNF urges us to focus on the first prong’s use of the word
“collection,” which DNF defines as “the act or process of
collection.” Relying on this definition, DNF reads the first
prong of § 1692a(6) to require that a business’s principal
purpose must be the act of collecting debts in order to qualify
as a “debt collector.” But DNF acknowledges that
2
The dissent also argues that the complaint’s “principal purpose”
allegations are conclusory. We disagree. The complaint alleged that DNF
acquires consumer debt for the purpose of collecting on it, from which it
“derive[s] large profits” and “the vast majority of its income.” By parsing
the difference between “income” and “profit,” the dissent departs from our
role at the 12(b)(6) stage. See Schlegel, 720 F.3d at 1207.
MCADORY V. DNF ASSOCIATES 11
“collection” is also defined as “that which is collected.” See
Barbato, 916 F.3d at 267.
In Barbato, the Third Circuit considered whether the
principal purpose prong requires direct interaction with
consumers, and rejected that interpretation. Id. The Third
Circuit concluded that the word “collection” shifts the focus
“from the act of collecting to what is collected, namely, the
acquired debts.” Id. at 267 (emphasis in original). The Third
Circuit reasoned:
In contrast to the [second prong’s] “regularly
collects” definition, where Congress explicitly
used the verb “to collect” in describing the
actions of those it intended the definition to
cover, in the “principal purpose” definition,
Congress used the noun “collection” and did
not specify who must do the collecting or to
whom the debt must be owed. Thus, by its
terms, the “principal purpose” definition
sweeps more broadly than the “regularly
collects” definition . . . .
Id. at 267–68 (internal citations omitted). It was critical to
the Third Circuit’s rationale that “the ‘regularly collects’
definition employs a verb and the ‘principal purpose’
definition employs a noun.” Id. at 267. We find this analysis
of the statutory text persuasive and decline to read a direct
interaction requirement into the principal purpose prong
based on the phrase “the collection of any debts.” Further,
DNF’s interpretation of the principal purpose prong would
largely collapse the two alternative definitions of debt
collector, contrary to the rule that “we presume differences in
language like this convey differences in meaning.” Henson
12 MCADORY V. DNF ASSOCIATES
v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1723
(2017); see also Schlegel, 720 F.3d at 1209 (declining to
adopt an interpretation of the principal purpose prong that
would render superfluous the “regularly collects” prong).
Because the Third Circuit reasoned in Barbato that the
first prong uses “collection” as a noun and the second prong
uses “collects” as a verb, our dissenting colleague substitutes
“stockpile” and “assortment” in prong one and treats
“collection” as something to be gathered together for the sake
of keeping it—like rare coins or antiques. Unsurprisingly, the
dissent decides that this reading makes no sense. We agree
that it would not, but the Third Circuit did not adopt
“stockpile” or “assortment.” Barbato merely recognized that
the phrase “collection of any debts” in prong one describes
the type of business Congress sought to regulate—i.e., one
with a principal purpose of debt collection. In contrast, in
prong two Congress used “collects” as a verb and defined
debt collectors by the activities they regularly engage in.
Shifting away from § 1692a(6)’s text, DNF also argues
that the FDCPA’s other provisions support the district court’s
conclusion that Congress intended the principal purpose
prong to apply only to those who have direct contact with
consumers. In support of this argument, DNF points to the
FDCPA’s limitations on ways debt collectors may interact
with consumers. See, e.g., 15 U.S.C. § 1692c (regulating
communications with consumers); § 1692d (prohibiting
harassing or abusive conduct); § 1692e (prohibiting false,
deceptive or misleading representations). We agree that
many of the FDCPA’s specific restrictions pertain to direct
interactions with consumers, but the question we must answer
is not whether the FDCPA regulates interaction with
MCADORY V. DNF ASSOCIATES 13
consumers, which it clearly does, but which actors are subject
to the statute’s restrictions.
The fact that the FDCPA includes limits on direct
collection activities does not require the conclusion that
Congress intended to regulate only those entities that directly
interact with consumers. First, the text of the principal
purpose prong contains no such limitation, see § 1692a(6),
and as Barbato explained, “‘[c]ollection’ by its very
definition may be indirect, and that is the type of collection in
which [the defendant] engages: it buys consumer debt and
hires debt collectors to collect on it.” 916 F.3d at 268.
Second, the specific provisions DNF relies upon must be read
in conjunction with other parts of the statute, which make
plain that Congress recognized that some debt collectors do
not directly interact with consumers. We know this because
the “regularly collects” prong expressly applies to businesses
that “directly or indirectly” collect debt. § 1692a(6)
(emphasis added).
DNF also argues that legislative history reveals that
Congress did not anticipate the emergence of the debt-buying
industry when it enacted the FDCPA in 1977, and thus it
could not have intended to regulate entities like DNF. We are
not persuaded. First, the FDCPA’s text is sufficiently clear
that we need not resort to legislative history. See Barbato,
916 F.3d at 269; Scott v. Jones, 964 F.2d 314, 317 (4th Cir.
1992); see also Mohamad v. Palestinian Auth., 566 U.S. 449,
458 (2012). Second, to the extent we do consult legislative
history, our interpretation of the principal purpose prong is
consistent with Congress’s desire to regulate debt collectors
who “are likely to have no future contact with the consumer
and often are [therefore] unconcerned with the consumer’s
opinion of them,” rather than entities with ongoing customer
14 MCADORY V. DNF ASSOCIATES
relationships that are generally “restrained by the desire to
protect their good will when collecting past due accounts.”
S. Rep. No. 95–382, at *2, U.S. Code Cong. & Admin. News
1977, pp. 1695, 1696. Put differently, debt buyers profiting
from debt collection lack market incentives that deter the sort
of abusive debt collection practices Congress was motivated
to regulate. As Barbato observed, “[u]nlike a traditional
creditor, such as a bank or a retail outlet that has its own
incentive to cultivate good will among its customers and for
which debt collection is one of perhaps many parts of its
business, an independent debt collector . . . has only one need
for consumers: for them to pay their debts.” 916 F.3d
at 268–69.3
The Third Circuit recently observed, “[n]o longer do
creditors simply hire debt collectors to serve their named role;
rather, with increased frequency creditors sell debt to
purchasers, who may again resell the debt, hire outside debt
collectors to undertake collection efforts, or attempt to collect
on their own.” Tepper v. Amos Fin., LLC, 898 F.3d 364, 366
(3d Cir. 2018) (citing Federal Trade Commission, The
Structure and Practices of the Debt Buying Industry 1
(2013)). We agree that the debt collection industry has
3
DNF’s description of debt collectors that do not own the debts they
collect underscores this concern. According to DNF, “[i]f a debt collector
does not collect on the debt, he is no worse off than he was before any
attempt was made.” By contrast, DNF observes a “debt buyer will have
lost on that investment” if there is no collection. This view suggests that
debt buyers like DNF who profit from the collection of debts they own
face greater financial pressure to cut corners compared with those
agencies that regularly collect debts due another. DNF’s argument here
also underscores our conclusion that DNF’s principal purpose is not
merely debt acquisition, but is instead the acquisition of debt for the
purpose of collecting on it.
MCADORY V. DNF ASSOCIATES 15
evolved since Congress passed the FDCPA, but these
changes do not support the statutory interpretation DNF urges
us to adopt. A primary purpose of the FDCPA was to protect
consumers from abusive debt collection practices by debt
collectors, 15 U.S.C. § 1692(e), and given the emergence of
entities that purchase debt and subcontract regular collection
activities, this purpose would be entirely circumvented if the
Act’s restrictions did not apply to entities like DNF. As we
recently observed, Congress did not intend to ban debt
collection; it intended to eliminate abusive, deceptive, and
unfair collection practices. Stimpson v. Midland Credit
Mgmt., Inc., 944 F.3d 1190, 1195 (9th Cir. 2019). Our
interpretation of the principal purpose prong furthers the
statute’s purpose and puts DNF and other similar debt buyers
on level footing with other debt collectors regulated by the
FDCPA. See § 1692(e).
DNF also suggests that McAdory’s position conflicts with
the Supreme Court’s decision in Henson. But in Henson, the
Court interpreted the “regularly collects” prong and
altogether declined to address the “principal purpose” prong.4
137 S. Ct. at 1721; see also Barbato, 916 F.3d at 266.
Henson does not change the outcome here.
Finally, DNF argues that it cannot be a debt collector if it
also meets the definition for “creditor.” This argument
erroneously assumes that the FDCPA uses these two terms in
mutually exclusive ways. We have already rejected a per se
rule that those who meet the FDCPA’s definition of creditor
cannot be debt collectors. Schlegel, 720 F.3d at 1208 n.2.
4
Henson is further distinguishable because the defendant in that case
asserted that its primary business was originating loans, not purchasing
defaulted consumer debt. See 137 S. Ct. at 1725.
16 MCADORY V. DNF ASSOCIATES
And in Henson, the Supreme Court declined to adopt the
view that the FDCPA “treats everyone who attempts to
collect a debt as either a ‘debt collector’ or a ‘creditor,’ but
not both.” Henson, 137 S. Ct. at 1724; see also Barbato,
916 F.3d at 266.
Contrary to the dissent’s suggestion, we do not direct the
district court on remand to discard the application of familiar
principles of agency law when it addresses vicarious liability.
Nor do we suggest that one businessperson may be liable for
another just because they are in the same business. The
circumstances under which an entity can be a “debt collector”
logically precedes consideration of whether and when a debt
collector can be held vicariously liable for the actions of
another debt collector. On remand, the existing body of case
law will govern the requirements of vicarious liability, and
this opinion does nothing to alter that regime. See, e.g., Clark
v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162,
1173 (9th Cir. 2006) (holding that “general principles of
agency . . . form the basis of vicarious liability under the
FDCPA”). Before our panel, McAdory’s counsel expressly
waived the argument that a non-debt collector can be held
vicariously liable under the FDPCA. But McAdory’s counsel
went on to clarify that if DNF is found to be a debt collector,
the next step—not yet reached by the trial court—will be to
decide whether DNF is vicariously liable according to agency
principles. McAdory recognizes, and we reiterate, that
vicarious liability may be addressed on remand. We conclude
that McAdory sufficiently alleged that DNF’s principal
purpose is the collection of debts as defined by the principal
purpose prong of § 1692a(6). The complaint alleged that
DNF lacks any other business purpose besides debt
collection. These allegations are sufficient to allege that DNF
MCADORY V. DNF ASSOCIATES 17
is a debt collector under the FDCPA, regardless of whether
DNF outsources debt collection activities to a third party.
We reverse the district court’s order granting DNF’s
motion to dismiss and remand to the district court for further
proceedings.
REVERSED AND REMANDED.
BEA, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion for three
reasons.
I.
The first reason is based on the operative complaint’s
undisputed utter lack of any allegations that DNF acted
directly in any way to violate appellant McAdory’s rights
under the FDCPA. As a matter of substantive law, then, DNF
can be held liable only for the acts of co-defendant MNS on
a theory of vicarious liability. But the problem is, the
FDCPA does not contain any textual basis for vicarious
liability of one “debt collector” for the acts of another “debt
collector,” even were DNF validly to be classified as a “debt
collector.” The notion that vicarious liability somehow
attaches to one “debt collector” account the actions of another
“debt collector” arises from the unexplained conclusion that
such seems “a fair result.” Pollice v. Nat’l Tax Funding, L.P.,
225 F.3d 379, 405 (3d Cir. 2000) (stating that its finding of
vicariously liability “is a fair result because an entity that is
itself a ‘debt collector’—and hence subject to the
18 MCADORY V. DNF ASSOCIATES
FDCPA—should bear the burden of monitoring the activities
of those it enlists to collect debts on its behalf.”). Why one
businessman should be liable for the acts of another
businessman in the same business just because they are in the
same business is a mystery to me. If each is a “debt
collector,” each is subject to the duties owed by a debt
collector to consumers. But why is there vicarious liability
for another business’s acts absent facts which establish
common law respondeat superior? Pollice offered no
reasoning as to what considerations enter into the court’s
conclusion of a “fair result,” or what is the basis for the court
determining that it was empowered to decide based on what
it thought was a “fair result.”
I am mindful, however, that Congress is thought to
legislate on a background of settled legal principles, such as
the common-law doctrine of respondeat superior, which does
provide the basis for vicarious liability. Meyer v. Holley,
537 U.S. 280, 285 (2003). It would be a relatively simple
case for us to find plaintiff’s allegations sufficient to state a
claim for vicarious liability. After all, plaintiff does allege
that DNF exercised control over the actions of the “physical
debt collectors” such as MNS in such detail that reasonable
jurors could find DNF actually controlled alleged “debt
collector” MNS’s acts toward McAdory, and that DNF
should be liable for the legal effects of such acts. This should
result in a reversal of the summary judgment in favor of DNF
because the District Court failed to recognize that the
complaint sufficiently alleged vicarious liability.
But we cannot do so here because Plaintiff-Appellant
McAdory has expressly eschewed the argument that DNF
could be vicariously liable for MNS’s conduct without DNF
qualifying as a “debt collector” under the FDCPA when
MCADORY V. DNF ASSOCIATES 19
specifically questioned on this point at oral argument.1 We
cannot consider arguments expressly waived. See, e.g., In re
Rodeo Canon Dev. Corp., 392 F. App’x 576, 579 (9th Cir.
2010). Because Plaintiff-Appellant McAdory submits that
her case must rise or fall on whether DNF qualifies as a “debt
collector” for the purposes of the FDCPA, I would hold that
DNF does not so qualify and affirm the district court’s grant
of summary judgment in favor of DNF for the reasons
explained below.
I believe the Majority is incorrect in holding both that
DNF must qualify as a “debt collector” under the FDCPA
before it can be held liable for MNS’s conduct, and that DNF
does so qualify. However, unlike the Third Circuit in Pollice,
the Majority has thankfully affirmed that common law
principles of respondeat superior will apply on remand, in
1
The exchange at oral argument was as follows:
Judge Bea: You’re not taking the position that
regardless whether DNF was a ‘debt collector’ . . . it
should be liable [on a theory of] vicarious liability
because it controlled the actions of MNS, which were
allegedly a violation of . . . the federal act.
Counsel for Appellant: Correct, we are arguing that, if
DNF is found to be a ‘debt collector,’ it can be
held—and then you would move on to the next
question, which is look at the agency principles, and
determine whether there is vicarious liability.
Judge Bea: But it can’t be held, according to the
Appellant, unless it is a ‘debt collector.’
Counsel for Appellant: Correct, that was the question.
Judge Bea: Thank you.
20 MCADORY V. DNF ASSOCIATES
light of its holding that DNF is a “debt collector” under the
FDCPA.
II.
The second and third reasons for my dissent have to do
with statutory interpretation. I do not think that DNF is a
“debt collector” who owes FDCPA statutory duties to
McAdory, because McAdory has not adequately alleged that
MNS’s (2) “principal purpose” is (3) the “collection of any
debts.”
True, the opening sentence of the charging allegations of
the complaint state: “The principle [sic] purpose of DNF is
the collection of defaulted consumer debts . . . .” But that
allegation is simply the recitation of the statutory description
of a “debt collector,” the classically inadequate allegation
invalidated by Iqbal and Twombly.2 No specific factual
allegations follow that hollow conclusory allegation to make
the description of DNF as a “debt collector” adequate. Given
that the operative complaint does not allege that DNF has any
direct interactions with consumers, the only remaining
question is whether its other factual, not conclusory,
allegations allow us to conclude that such debt collection is
nonetheless DNF’s “principal purpose.”
2
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (holding that “the
tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,
do not suffice.”) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)).
MCADORY V. DNF ASSOCIATES 21
The operative complaint alleges that DNF “derive[s] large
profits” from “defaulted consumer debts that it purchases for
pennies on the dollar.” Accepted as true for the purposes of
DNF’s 12(b)(6) motion, this allegation does not establish that
DNF’s principal purpose is the collection of debt. First, if
anything, the allegation establishes that debt collection is not
the only component of DNF’s business. The other integral
part, as alleged by McAdory, is the acquisition of that debt at
a discounted price (“for pennies on the dollar”). Second, this
allegation is not surprising, as the principal purpose of nearly
every firm in a market-based economic system is to make a
profit by buying low and selling high. But the fact that a
firm’s profits are large—whether they are derived from
purchasing discounted debt, collecting on that debt, or
otherwise—says nothing about how important they are
relative to other potential profit-making activities in the firm.
In other words, just because DNF derives a lot of profit from
the discounted debt it purchases, it does not tell us whether or
not DNF derives a lot more profit from other, unrelated
activities. McAdory alleges no facts which allow us to
conclude what portion of DNF’s profits derive from debt
collection. Hence, it tells us nothing of DNF’s single
“principal purpose.”
Further, McAdory alleges that “DNF actively participates
in, directs, and derives the vast majority of its income from a
large national debt collection network of which it is the head
of.” DNF contracts with third-party debt collectors around
the country, according to McAdory, and supplies them with
the debtors’ personal information and parameters of
collection. But none of these facts are sufficient to make out
a claim that DNF has the “principal purpose” of debt
collection, either. DNF’s “income” is obviously different
from its profit, and thus income, by itself, cannot tell us much
22 MCADORY V. DNF ASSOCIATES
about the activity’s importance to DNF. For aught that
appears in the allegations of the complaint, the “vast
majority” of DNF’s profit could very well come from other
activities having nothing to do with debt collection, even
when we accept as true that the “vast majority” of its income
is so produced. For all we know, maybe the “physical debt
collectors” described in the operative complaint take such a
large cut of any collected payments that the profits DNF
derives from such activities are relatively unimportant to its
overall business. In fact, that is exactly what the operative
complaint suggests: that DNF “derive[s] [its] large profits”
from debts that it has “purchase[d] for pennies on the
dollar”—and perhaps has sold to others at a markup—and not
from debts it has collected.
Thus, the Majority is at least half right: if DNF did not
have some way of monetizing the debt it acquired, it would
soon go out of business. Maj. Op. at 9. But in being half
right, it is also half wrong: based on the allegations as they
appear in the operative complaint, DNF would also go out of
business if it could no longer acquire such debts at a price
well below face value. According to the operative complaint,
the factual allegations of which we must accept as true, both
activities are integral to DNF’s business. And the operative
complaint contains no allegations or other inferences that
would allow us to conclude which, if either, of these two
activities qualifies as DNF’s “principal purpose.”
The bottom line, then, is that the allegations of the
complaint do not sufficiently make out a claim that debt
collection—even indirect debt collection—is the “most
important” goal or aim of DNF. According to the complaint,
the actual collection of debts is no more important to the
production of profit than is the earlier purchase of the debt at
MCADORY V. DNF ASSOCIATES 23
a price lower than the amount collected. One cannot expect
“large profits” if debt is bought dear and collected dear, or
worse, collected cheap.
At best, the two acts—the purchase and the collection of
debt—are both described in the complaint as the principal
purposes of DNF. But the FDCPA describes a “debt
collector” as one who has “the principal purpose” of the
“collection of any debts”—not one who has as “a principal
purpose” such collection. Thus, even were the Majority
opinion’s reading of “collection of any debts” correct, it
would be only half right, but also half wrong. Section
1692a(6) does not describe as a “debt collector” a person one
of whose principal purposes is the collection of any debts. It
is an all or nothing description. Clearly, for a profit
motivated business, DNF does not qualify as a “debt
collector” under the “principal purpose” prong of Sec.
1692a(6).
III.
A.
The third reason why Section 1692a(6) does not apply to
DNF is that the word “collection” in the phrase “the
collection of any debts” must, in context, describe the action
of collecting, and not a collection of a set of items (such as
debts). In its interpretation of the statute, the Majority
followed the only other Court of Appeals to have decided the
issue. Barbato v. Greystone All., LLC, 916 F.3d 260, 261 (3d
Cir.), cert. denied sub nom. Crown Asset Mgmt. LLC v.
Barbato, 140 S. Ct. 245 (2019). The Barbato Court’s
interpretation of the statutory text, which the Majority
adopted, relies heavily on a flawed grammatical analysis. In
24 MCADORY V. DNF ASSOCIATES
interpreting the phrase, “any business the principal purpose
of which is the collection of any debts,” 15 U.S.C.
§ 1692a(6), the Third Circuit reasoned:
While it is true that “collection” can be
defined as “the act or process of collecting,”
it can also be defined as “that which is
collected.” Collection, Random House
Dictionary of the English Language 290
(1973). So defined, the focus shifts from the
act of collecting to what is collected, namely,
the acquired debts. As long as a business’s
raison d’être is obtaining payment on the
debts that it acquires, it is a debt collector.
Who actually obtains the payment or how
they do so is of no moment.
916 F.3d at 267. While I agree that the word “collection” can
be validly defined as “that which is collected” in certain
contexts, this definition makes absolutely no sense here.
These interpretive errors are only compounded with the
Third Circuit’s distinctions based on the statutory words’
parts of speech. The Majority notes approvingly that “[i]t
was critical to the Third Circuit’s rationale that ‘the
“regularly collects” definition employs a verb and the
“principal purpose” definition employs a noun.’” Maj. Op.
at 11 (citing Barbato, 916 F.3d at 267). And it is on this basis
that the Majority rejects DNF’s proposed definition, “the act
or process of collecting.” Id. at 10.
Because this simple grammatical error has now toppled
two United States Courts of Appeals, I am afraid I must go
back to basics. The mere fact that a word appears in the form
MCADORY V. DNF ASSOCIATES 25
of a noun instead of the form of a verb does not mean that it
cannot refer to action. “Action,”3 in fact, is a noun. So are
the words in DNF’s proposed definition of collection, the
“act”4 or the “process”5 of collection. And so are thousands
of other words that refer to actions, like “arrival,”6
“dismissal,”7 “launch,”8 “release,”9 and “use.”10
So yes, Congress used the form of a noun in the “principal
purpose” prong of the FDCPA’s definition, and the form of
a verb in the “regularly collects” prong. But how do we get
3
Action, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/action.
4
“[N]oun. [T]he doing of a thing.” Act. Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/act.
5
“[N]oun. [A] series of actions or operations conducing to an end.”
Process, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/process.
6
“[N]oun. [T]he act of arriving.” Arrival, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/arrival.
7
“[N]oun. [T]he act of dismissing.” Dismissal, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/dismissal.
8
“[N]oun. [A]n act or instance of launching.” Launch, Merriam-
Webster Dictionary, https://www.merriam-webster.com/dictionary/launch.
9
“[N]oun. [T]he act or an instance of liberating or freeing (as from
restraint).” Release, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/release.
10
“[N]oun. [T]he act or practice of employing something.”
Use, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/use.
26 MCADORY V. DNF ASSOCIATES
from this unremarkable fact to the conclusion that the word
“collection” cannot refer to an action?11 Neither the Barbato
Court nor the Majority provide an explanation. But it appears
to me to amount to no more than a simple misunderstanding
of the way words work: that because verbs typically convey
“actions” and nouns typically convey “things,” there can be
no mixing between such categories.12 But surely we are
expected to rise above such a rudimentary (and incorrect)
understanding of grammar when we are interpreting a
statutory text.
Put differently, acknowledging that “collection” is a noun
(rather than a verb) does not end the inquiry, because the
noun “collection” has many different definitions—some of
which refer to things and some of which refer to actions.13
We all agree that the noun “collection,” depending on the
context, can mean “that which is collected,” or “the act or
process of collecting.” But both Barbato and the Majority
have opted for the former definition of the noun “collection”
without explaining why it should be preferred over the latter,
other than by pointing out that the separate, second “regularly
11
For what it’s worth, even the definition of the word “noun”
contradicts this conclusion: A noun is “any member of a class of words
that typically . . . refer to an entity, quality, state, action or concept.”
Noun, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/noun (emphasis added).
12
Perhaps this is what is implied in the Barbato Court’s assertion that,
“it is, after all, a verb that requires action.” 916 F.3d at 268.
13
See, e.g., Collection, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/collection (defining
“collection” as “[N]oun. [T]he act or process of collecting[;] something
collected[;] GROUP, AGGREGATE[;] a set of apparel designed for sale
usually in a particular season.”
MCADORY V. DNF ASSOCIATES 27
collects” prong of the statute employs a verb rather than a
noun. As explained, this offers no insight into which
definition of the noun “collection” should be understood in
section 1692a(6). Since both of these definitions can be valid
definitions of the noun “collection” in certain contexts, our
task is to evaluate what each of them would mean.
Let me begin with the Third Circuit’s definition, adopted
by the Majority. For ease of reference to this definition of
“collection”—“what is collected”—one might use the
synonyms “assortment” and “stockpile.”14 Obviously, these
synonyms are not mentioned in Barbato or the Majority
opinion, but I employ them here to demonstrate what their
adopted definition of “collection” would mean: When
“collection” means “what is collected,” it refers to the things
that are collected. Barbato, 916 F.3d at 267 (stating that this
definition causes “the focus [to] shift[] from the act of
collecting to what is collected.”) (emphasis added).
What would a business look like if its primary purpose
were “what is collected” instead of “the act of collecting”—in
other words, for a business’s purpose to be collected things?
Of course, a business’s primary objective might be to obtain
a “collection” or “assortment” of coins, of paintings, or of
vintage automobiles. But unless one charges for viewing
such collection, the “collection” itself—or, as the Majority
would have it, the things that are collected—would not
constitute much of a “business” as described by Section
1692a(6). And, of course, one can even have—and maybe
DNF does have—a “collection” or “stockpile” of debts. This
is what is described by the Third Circuit’s and the Majority’s
14
See, e.g., Collection, Merriam-Webster Thesaurus,
https://www.merriam-webster.com/thesaurus/collection.
28 MCADORY V. DNF ASSOCIATES
definition: When the word “collection” means “that which is
collected,” it refers not to an act but to a thing (or a group of
things). In other words, according to the Majority’s reading
of the statute, DNF’s principal purpose in its business is: To
maintain a debt “collection.” If this sounds absurd, that’s
because it is.15
But are we really expected to believe that this is the type
of debt “collection” to which Congress was referring in the
“principal purpose” prong? For, what could it even mean, as
the Majority joins the Third Circuit in holding, that DNF’s
“principal purpose” is a group of things—“that which is
collected,” or “[the debt] which is collected (or, as I have
said, an “assortment” or a “[stockpile] of any debts”)?
15 U.S.C. § 1692a(6). Both the Majority and the Barbato
Court acknowledge that a business that acquires “a collection
of . . . debts” without realizing their payment (or otherwise
monetizing them) would soon go out of business. Maj. Op.
at 9; 916 F.3d at 268. So why do they both insist that the
statute seeks to encompass these nonexistent business
models?
Further, a debt “collection” in this sense (describing
“what is collected”) is not the purpose (or business model)
that either the Majority or the Barbato Court ultimately
attribute to the purported “debt collector.” See Maj. Op. at 13
(citing approvingly to Barbato, 916 F.3d at 268, that
“indirect” collection “is the type of collection in which [the
defendant] engages: it buys consumer debt and hires debt
collectors to collect on it.”). Indeed, in the midst of its
15
Such a “collection” of debts might make sense for a governmental
or charitable organization whose principal purpose was the forgiveness of
debt, but not for a business which intends the debts be paid.
MCADORY V. DNF ASSOCIATES 29
statutory interpretation, the Barbato Court reasons (and the
Majority quotes approvingly) that “Congress used the noun
‘collection’ and did not specify who must do the collecting or
to whom the debt must be owed.” Id. at 267 (emphasis
added); Maj. Op. at 11. Put differently, even while espousing
the significance of Congress’s employment of “collection” as
a noun, the Barbato Court acknowledges that it is of course
the act of collecting (used there in the present participle form
of a verb) that the FDCPA’s “principal purpose” prong seeks
to capture. Thus, according to both Barbato and the
Majority, the only proper definition of the noun “collection”
in section 1692a(6) is as an action (as opposed to a thing).
And thus in both prongs, it is ultimately a business’s action or
activity that brings the purported debt collectors into the
realm of the statute.
That is why it makes much more sense in this context to
adopt the definition that DNF urges for “collection,” which is
“the act or process of collection.” Then the statute reads,
rather straightforwardly, that a “debt collector” is “any
business the principal purpose of which is the [‘the act or
process of collecti[ng]’] of any debts.” Focusing on the act
or process of collecting, rather than on “what is
collected”—DNF’s debt “collection”—also functions to
exclude certain businesses from the “principal purpose”
definition, businesses which are obviously outside the
intended scope of the statute. For example, is there any doubt
that a fixed-income investor who exclusively buys and holds
corporate and municipal bonds to maturity has the “raison
d’être [of] obtaining payment on the debts that it acquires,”
Barbato, 916 F.3d at 267, and is—I think all would
30 MCADORY V. DNF ASSOCIATES
agree—not a “debt collector” under either definition of the
FDCPA?16
The interpretation that “collection” be defined as an “act”
or “process” does not create a “direct interaction”
requirement, as stated by the district court below and rejected
by the Majority. Rather, this is simply the requirement that
the statute itself imposes: That the purported debt collector
have as its principal purpose an act or process that can be
fairly described as “collection,” as put forth in section
1692a(6). McAdory has simply not alleged that DNF
engages in any such acts or processes. So how can it be said
that DNF—a business which, according to the allegations of
the complaint, never performs the act or process of
collecting—has the principal purpose of “the collection of
any debts”?
B.
Because a noun can denote an action, I have no trouble
accepting the most straightforward definition of the noun
“collection”: a “debt collector” is “any business the principal
purpose of which is [the act or process of collecting] any
debts.” I fully acknowledge that this interpretation means
that both prongs of the “debt collector” definition of section
1692a(6) devote some focus to a person’s actions or activity.
16
Or, if it is fairly implied that Barbato’s language was limited only
to defaulted consumer debts, consider the business model suggested later
in that decision, one who “buy[s] debt for the purpose of reselling it to
unrelated parties at a profit.” 916 F.3d at 268. One can still say that its
“raison d’être is obtaining payment” on that debt, yet under the Majority’s
reasoning none of the FDCPA’s prohibitions would apply to its business
activities, for it obtains payment on the debt from the buyer of the debt,
not the debtor.
MCADORY V. DNF ASSOCIATES 31
Contrary to the Majority’s assertion, though, this
interpretation does not render either prong of the statute
superfluous, for the actors under the two prongs are described
quite differently. The Majority’s contrary assertion ignores
the substantial differences that exist between what qualifies
a “debt collector” under the first prong and what so qualifies
under the second prong.
Under the second, “regularly collects” prong, a business
does not qualify as a debt collector unless it is collecting
debts “for another”—that is, debts that it does not own. Such
a business cannot be a debt collector unless it also collects
another’s debts “regularly,” meaning that even if collection
of debts owned by others is its exclusive line of business,
collection activity that is merely occasional will disqualify it
from the definition. And finally, the statute expressly
provides that such collection activity may be done “directly
or indirectly.”
To the contrary, under the first, “principal purpose”
prong, which the Majority opinion would apply to DNF, a
business can qualify as a debt collector even if it is collecting
on debts that it owns. Such a business can be a debt collector
even if it collects on debts only occasionally or irregularly, so
long as such collection remains its most important goal or
aim (or, as the statute puts it, its “principal purpose”).17 And
finally, what is particularly relevant for DNF: unlike the
“regularly collects” prong, the debt “collection” that amounts
17
Such a “debt collector” need not have bought the debt for “pennies
on the dollar,” as is alleged DNF did. The firm could buy the debt for no
money up front but solely on the basis of returning a percentage of the
amount actually recovered on the debt. Such a business would have only
one “principal purpose”: the collection of debt.
32 MCADORY V. DNF ASSOCIATES
to the business’s “principal purpose” must be made directly
against the debtor, since “directly or “indirectly” is a
requirement of the second prong but not of the first prong.18
Of course, the Majority is correct that the “principal
purpose” prong contains no express requirement that
qualifying debt “collection” must be made directly against
consumer debtors. But on what basis does the Majority
conclude that “[c]ollection’ by its very definition may be
indirect,” such that an express requirement would be
necessary? Maj. Op. at 13 (citing Barbato, 916 F.3d at 268).
Congress obviously does not agree: If this were true, why
does the “regularly collects” prong clarify that qualifying
debt collection may be done “directly or indirectly”?
§ 1692a(6). The Majority’s reasoning renders this
clarification completely superfluous. Given that we must
“presume differences in language like this convey differences
in meaning,” Henson v. Santander Consumer USA Inc.,
137 S. Ct. 1718, 1723 (2017), I cannot follow the Majority in
ignoring this absence of this clarification in the “principal
purpose” prong, so as to conclude that “indirect” actions
towards consumers can qualify as “collection” from
consumers.
This becomes even more apparent when we acknowledge
that “[t]he [FDCPA] regulates interactions between consumer
debtors and debt collectors.” Jerman v. Carlisle, McNellie,
Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577 (2010) (citing
section 1692a(5) and the “regularly collects” prong of section
1692a(6)). With this in mind, we ought to expect an express
statement from Congress when the FDCPA’s restrictions
apply to a business that merely collects debts “indirectly”—
18
Scalia & Garner, op. cit. at 174–179.
MCADORY V. DNF ASSOCIATES 33
that is, without any direct collection from the consumer
debtor. And this is exactly what we find in the “regularly
collects” prong, and exactly what is absent in the “principal
purpose” prong at issue here. As such, it is not my
interpretation but rather that of the Majority which would
render the word “indirectly” in the second prong of the
definition superfluous.
IV.
In conclusion, I reiterate my initial reason for dissenting.
In my opinion, the above discussion as to the proper way to
interpret the first prong’s definition of “debt collector” in
section 1692a(6) is entirely unnecessary in this case. If the
Majority believes that DNF may be liable for MNS’s
violations of the FDCPA, it need not distort the statute with
erroneous grammatical distinctions in order to so hold. Case
law that is binding on this Court already provides an available
path.
McAdory alleged not that DNF made any direct contact
with her, or that any of DNF’s actions violated the FDCPA in
any way. Instead, she alleged that DNF should be held
vicariously liable for MNS’s direct violations. While the
Ninth Circuit has “recognized vicarious liability under the
FDCPA,” Clark v. Capital Credit & Collection Servs., Inc.,
460 F.3d 1162, 1173 (9th Cir. 2006) (citing Fox v. Citicorp
Credit Servs., Inc., 15 F.3d 1507, 1516 (9th Cir. 1994)), it has
never addressed the question whether a person must also be
a “debt collector” subject to the FDCPA to be vicariously
liable for the actions of another person, who, like DNF, is
indeed a “debt collector.”
34 MCADORY V. DNF ASSOCIATES
Below, at the motion to dismiss stage, both parties argued
under Fox, Clark, and out-of-circuit case law that DNF could
be vicariously liable for MNS’s actions under the FDCPA
only if DNF itself meets the definition of “debt collector”
under section 1692a(6).19 Despite Clark’s clear statement
that “general principals of agency . . . form the basis of
vicarious liability under the FDCPA,” the district court
accepted the parties’ premise—that a principal could not be
vicariously liable for its agent’s FDCPA violations unless that
principal was itself a “debt collector” under the FDCPA—and
considered its conclusion that DNF was not a “debt collector”
to end the inquiry. We have never held that the question
whether a business is a “debt collector” under the FDCPA
“logically precedes consideration of whether and when a debt
collector can be held vicariously liable for the actions of
another debt collector.” Maj. Op. at 16. And neither the
FDCPA nor our governing case law require such a
conclusion.
19
See, e.g., Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 108
(6th Cir. 1996) (declining to hold a non-“debt collector” vicariously liable
for its attorney’s violations of the FDCPA); Pollice, 225 F.3d at 405
(citing Fox and Wadlington and stating that its finding of vicariously
liability “is a fair result because an entity that is itself a ‘debt
collector’—and hence subject to the FDCPA—should bear the burden of
monitoring the activities of those it enlists to collect debts on its behalf.”);
Janetos v. Fulton Friedman & Gullace, LLP, 825 F.3d 317, 325 (7th Cir.
2016) (stating that the “key question, according to the Third Circuit in
Pollice, is whether the defendant whom the plaintiff seeks to hold
vicariously liable is itself a debt collector,” because the FDCPA
“require[s] a debt collector who is independently obliged to comply with
the Act to monitor the actions of those it enlists to collect debts on its
behalf. On the other hand, a company that is not a debt collector would
not ordinarily be subject to liability under the Act at all.”).
MCADORY V. DNF ASSOCIATES 35
The Supreme Court has stated, when evaluating a claim
of vicarious liability under a different statutory scheme, that
“when Congress creates a tort action, it legislates against a
legal background of ordinary tort-related vicarious liability
rules and consequently intends its legislation to incorporate
those rules.” Meyer, 537 U.S. at 285. The Court continued:
It is well established that traditional vicarious
liability rules ordinarily make principals or
employers vicariously liable for acts of their
agents or employees in the scope of their
authority or employment. Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 756,
118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998) (“An
employer may be liable for both negligent and
intentional torts committed by an employee
within the scope of his or her employment”);
New Orleans, M., & C.R. Co. v. Hanning,
15 Wall. 649, 657, 21 L. Ed. 220 (1873) (“The
principal is liable for the acts and negligence
of the agent in the course of his employment,
although he did not authorize or did not know
of the acts complained of”).
Id. at 285–86 (holding that under traditional principles of
vicarious liability, a corporation is the principal of its
employees/agents, and thus corporate owners and officers are
not liable for the unlawful acts of an employee simply on the
basis that the owner or officer controlled (or had the right to
control) the actions of that employee).
McAdory expressly abandoned this argument when
arguing before this Court, so I will not address the adequacy
of the allegations in the operative complaint. Instead, I am
36 MCADORY V. DNF ASSOCIATES
content to conclude as follows: While the operative complaint
did not sufficiently allege that DNF is a “debt collector”
under the FDCPA, longstanding case law that is binding on
this Court holds that such a status is not necessary for DNF to
be held vicariously liable for MNS’s alleged actions. But
because this argument was expressly abandoned, I would
hold that the district court’s grant of DNF’s motion to dismiss
should be affirmed.