Daniel N. Gordon, PC v. Rosenblum , 361 Or. 352 ( 2017 )

352 April 27, 2017 No. 21
IN THE SUPREME COURT OF THE
STATE OF OREGON
DANIEL N. GORDON,
an Oregon professional corporation; and
Daniel N. Gordon, individually,
Petitioners on Review,
v.
Ellen ROSENBLUM,
Attorney General;
and Oregon Department of Justice,
Respondents on Review.
(CC 161208399; CA A154184; SC S063978)
On review from the Court of Appeals.*
Argued and submitted November 10, 2016.
R. Daniel Lindahl, Bullivant Houser Bailey PC, Portland,
argued the cause and filed the brief for petitioners on review.
Daniel N. Gordon, Gordon Aylworth & Tami PC, Eugene,
also argued the cause on behalf of himself.
Michael A. Casper, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondents on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Jonathan P. Strauhull, Portland, filed the brief for amicus
curiae Oregon Trial Lawyers Association. Also on the brief
was Phil Goldsmith, Portland.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Brewer, and Nakamoto, Justices, and Baldwin,
Senior Justice, Justice pro tempore.**
______________
**  Appeal from Lane County Circuit Court, Karsten H. Rasmussen, Judge.
276 Or App 797, 370 P3d 850 (2016).
** Flynn, J., did not participate in the consideration or decision of this
case.
Cite as 361 Or 352 (2017) 353
BALMER, C. J.
The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is affirmed in part and reversed in
part, and the case is remanded to the circuit court for fur-
ther proceedings.
Case Summary: Plaintiffs, a lawyer and his law firm, sought a declara-
tory judgment that certain provision of the Unlawful Trade Practices Act did
not apply to their debt collection activities taken on behalf of creditors and debt
owners. Held: (1) ORS 646.607(1) applies to plaintiffs’ conduct because the term
“unconscionable tactics” encompasses plaintiffs’ debt collection activities and (2)
ORS 646.608(1)(b) applies to plaintiffs’ debt collection activities.
The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is affirmed in part and reversed in part, and the case is remanded to the
circuit court for further proceedings.
354 Daniel N. Gordon, PC v. Rosenblum
BALMER, C. J.
In this declaratory judgment action, we consider
whether provisions of Oregon’s Unlawful Trade Practices
Act (UTPA) that prohibit using “unconscionable tactic[s]”
to collect certain debts, ORS 646.607(1), and causing
likely “confusion” or “misunderstanding” regarding loans
and credit, ORS 646.608(1)(b), apply to the debt collection
activities of plaintiffs, a lawyer and his law firm. The trial
court held that those provisions apply only to certain con-
sumer relationships and that plaintiffs’ roles as a lawyer
and law firm engaged in debt collection activities, and not
as a lender or debt owner, removed their activities from the
scope of the UTPA. The court granted plaintiffs’ request for
an injunction preventing the Oregon Department of Justice
from enforcing the UTPA against plaintiffs. The Court of
Appeals reversed the circuit court’s declarations of law and
the injunction, concluding that the UTPA does apply to
plaintiffs’ debt collection activities. Daniel N. Gordon, PC v.
Rosenblum, 276 Or App 797, 370 P3d 850 (2016). On review
we affirm, although our interpretation of the statutes differs
in some respects from that of the Court of Appeals.
I.  FACTUAL AND PROCEDURAL BACKGROUND
Daniel N. Gordon, P.C. and Daniel N. Gordon (“law
firm” or “plaintiffs”) represent creditors and debt buyers in
their attempts to collect debt, often defaulted consumer credit
card debt. The law firm assists its clients with pre-litigation
collection activity, civil litigation, and post-judgment col-
lection efforts. The business is high-volume: In 2010, the
law firm pursued collection of more than 16,000 accounts,
obtained judgments with respect to approximately 9,000 of
those accounts, and collected on approximately 4,000.
In 2011, acting on several years of complaints about
the practices of the law firm, the Oregon Department of
Justice (“DOJ” or “defendant”) investigated the law firm.
The investigation revealed a number of practices that DOJ
determined might violate the UTPA. For example, in every
collection complaint examined by DOJ, the law firm alleged
a right to attorneys’ fees and interest on the debt, despite in
many cases not attaching a contract showing those rights.
Cite as 361 Or 352 (2017) 355
Additionally, DOJ found evidence that the law firm failed to
follow choice of law provisions in applicable contracts and, as
a result, sometimes pursued debts that were barred by the
relevant statute of limitations. In the many cases resolved
by default judgment, the veracity of the contents of the
complaint—and the debtor’s obligation to pay—was never
established in an adversarial process. As a result of those
and other findings, DOJ concluded that the law firm
“had a pattern and practice of filing thousands of breach
of contract actions against credit card debtors and obtain-
ing default judgments for attorneys’ fees and interest in
a manner that apparently took advantage of the debtors’
legal ignorance, lack of resources and general belief that
they could not fight the claim.”
DOJ determined that it had probable cause to sue to enjoin
the law firm and its attorneys from engaging in trade prac-
tices prohibited under sections ORS 646.607(1) and ORS
646.608(1)(b) of the UTPA.
Based on that conclusion, DOJ served the law firm
with a proposed Assurance of Voluntary Compliance (AVC)
and demanded that the law firm execute the agreement.
Under the AVC, the law firm would change its behavior
as specified in the agreement and DOJ would release the
law firm from any liability under the UTPA. The remedies
contained in the AVC addressed both the law firm’s non-
litigation collection activities, such as its use of autodialers,
and its litigation activities. The AVC required that any com-
plaint in a breach of contract case involving credit card debt
filed by the law firm in Oregon include certain documents,
such as a copy of the contract between the creditor and
debtor in effect at the time of the creditor’s charge-off, and
certain information, such as the date of the last payment. It
also prohibited the law firm from seeking attorneys’ fees as
part of any default judgment and required the law firm to
use independent contractors, rather than its own employees,
to provide service of process.
Plaintiffs refused to execute the agreement and
instead initiated this declaratory judgment action. Plaintiffs’
complaint contended that the UTPA and the Unlawful Debt
Collection Practices Act (UDCPA), ORS 646.639, did not
356 Daniel N. Gordon, PC v. Rosenblum
apply to their actions while representing clients in debt col-
lection activities and sought an injunction preventing DOJ
from enforcing those statutes against plaintiffs. On cross
motions for summary judgment, the trial court entered
judgment for plaintiffs and issued an injunction.1
DOJ appealed. The Court of Appeals affirmed the
trial court’s holding that the UDCPA did not apply to plain-
tiffs’ debt collection activities. Daniel N. Gordon, PC, 276 Or
App at 814-22. Neither party challenges that holding before
this court, and we do not address it. The Court of Appeals,
however, reversed the trial court’s decision that the UTPA
did not apply to plaintiffs’ debt collection activities. In ana-
lyzing the UTPA, the court first construed ORS 646.607(1),
which prohibits a person, in the course of the person’s busi-
ness, from employing “any unconscionable tactic in connec-
tion with * * * collecting or enforcing an obligation.” ORS
646.607(1). The Court of Appeals disagreed with plaintiffs’
contention that, because the debtors were never customers
of the law firm, the law firm’s actions were not “unconscion-
able tactics” as that term is used in the UTPA. The court
concluded that “the statute does not require plaintiffs and
a debtor to have a consumer relationship,” interpreting the
UTPA to encompass plaintiffs’ alleged conduct.2 Daniel N.
Gordon, PC, 276 Or App at 809.
Next, the court construed ORS 646.608(1), mak-
ing it unlawful for a “person,” in the course of the person’s
business, to cause “likelihood of confusion or of misunder-
standing as to the source, sponsorship, approval, or certifi-
cation of real estate, goods or services.” “Real estate, goods
or services” includes “loans and extensions of credit.” ORS
1
Although the trial court generally agreed with plaintiffs and granted them
the relief they sought, the trial court rejected plaintiffs’ argument that DOJ’s
attempts to regulate plaintiffs’ practice of law through the proposed AVC inter-
fered with this court’s authority to regulate the practice of law and thus violated
the separation of powers provisions in the Oregon Constitution. The Court of
Appeals declined to consider plaintiffs’ appeal of that ruling because plaintiffs
did not file a cross-appeal raising the issue. Daniel N. Gordon, PC, 276 Or App at
804 n 7. We agree with the Court of Appeals’ disposition of that issue and do not
discuss it further.
2
The Court of Appeals used the term “consumer relationship” to refer to
a customer’s direct transactional relationship with a business. We follow that
usage here.
Cite as 361 Or 352 (2017) 357
646.605(6)(a). Plaintiffs argued that the statute applied
only to confusion or misunderstanding caused by a person
regarding that person’s own real estate, goods, or services,
and not real estate, goods, or services that were provided
by some other party. As plaintiffs represented creditors and
third-party debt buyers and did not provide loans them-
selves, under that construction the statute would not apply
to them. Again, the Court of Appeals disagreed. It explained
that “the statute’s text does not explicitly require that the
unlawful practice in the course of the person’s business
must be with respect to that person’s own real estate, goods,
or services.” Daniel N. Gordon, PC, 276 Or App at 811.
The Court of Appeals thus concluded that the trial
court had erred in holding that ORS 646.607(1) and ORS
646.608(1) did not apply to the law firm’s conduct. Id. at 822.
It reversed those parts of the declaratory judgment and the
injunction that the trial court had issued. Id.
Plaintiffs petitioned for review, and we allowed the
petition.
II. ANALYSIS
On review, the parties reprise their arguments over
whether two provisions of the UTPA should be interpreted
to apply to plaintiffs’ alleged conduct. We interpret the stat-
utes by examining their text, context, and legislative his-
tory. State v. Gaines, 346 Or 160, 206 P3d 1042 (2009).
A.  ORS 646.607(1)
ORS 646.607 provides, in part:
“A person engages in an unlawful trade practice if in
the course of the person’s business, vocation or occupation
the person:
“(1)  Employs any unconscionable tactic in connection
with selling, renting or disposing of real estate, goods or
services, or collecting or enforcing an obligation.”
Plaintiffs argue that the statute does not apply to their
debt collection activities because their relationship with the
debtors is not a customer relationship—that is, it is not a
relationship between plaintiffs as a business and debtors
358 Daniel N. Gordon, PC v. Rosenblum
as direct customers of that business. Plaintiffs base that
argument on the meaning of “unconscionable tactics.” ORS
646.605(9) provides:
“ ‘Unconscionable tactics’ include, but are not limited to,
actions by which a person:
“(a)  Knowingly takes advantage of a customer’s phys-
ical infirmity, ignorance, illiteracy or inability to under-
stand the language of the agreement;
“(b)  Knowingly permits a customer to enter into a
transaction from which the customer will derive no mate-
rial benefit;
“(c)  Permits a customer to enter into a transaction
with knowledge that there is no reasonable probability of
payment of the attendant financial obligation in full by the
customer when due; or
“(d)  Knowingly takes advantage of a customer who is
a disabled veteran, a disabled servicemember or a service-
member in active service, or the spouse of a disabled vet-
eran, disabled servicemember or servicemember in active
service.”
Plaintiffs construe ORS 646.605(9) by identifying
the definitions of the words “unconscionable” and “tactic” in
Webster’s Third New Int’l Dictionary. They then narrow those
“ordinary meanings” by applying the interpretive principle
of ejusdem generis. Observing that the four examples in that
subsection have “little in common” except their reference to
“a customer,” plaintiffs reason that all unconscionable tac-
tics must be conduct directed at “a customer.” Next, plain-
tiffs argue that the use of the indefinite article “a” to mod-
ify “customer” is ambiguous as to whether the person using
the unconscionable tactic must have a customer relationship
with the customer, or whether the customer merely must
be a customer of “someone, somewhere.” Plaintiffs contend
that, in light of the statute’s consumer protection purpose,
it is “more plausible to interpret the statute to mean ‘a cus-
tomer of the person committing the unconscionable tactics.’ ”
As the law firm’s alleged conduct involves tactics directed
at debtors and litigation adversaries—not its customers—it
argues that its conduct falls outside of the meaning of ORS
646.607(1).
Cite as 361 Or 352 (2017) 359
The state’s construction of the term is more
straightforward. Similar to the plaintiffs’ proffered con-
struction, it also gives “unconscionable” and “tactics” their
ordinary meanings, taken from dictionary definitions, and
simply concludes that “the phrase ‘any unconscionable
tactic’ refers broadly to whatever kind of unscrupulous or
unreasonable maneuvers a person might employ to achieve
some end.” The state rejects the more limited construc-
tion offered by plaintiffs, arguing first that the statute’s
reference to “any unconscionable tactic,” ORS 646.607(1)
(emphasis added), and its definition of that term as “not
limited to” the examples provided, ORS 646.605(9), show
that “the legislature’s purpose in providing the examples
was not to put a limitation on the kinds of conduct that was
necessary to be ‘unconscionable,’ but rather to illustrate
some of the conduct that could be sufficient.” Second, the
state argues that the appearance of the word “customer”
in each of the four examples in ORS 646.605(9) reflects
the fact that many instances of unconscionable tactics
would occur in the context of a business-customer relation-
ship, but that the statute does not require such a relation-
ship. Finally, the state asserts that, even if the plaintiffs’
ejusdem generis interpretation is correct and a “customer”
relationship is required, the indefinite article “a” before
“customer” indicates that that requirement can be met
here by the debtor’s customer relationship with the origi-
nal creditor.
We find the parties’ exclusive focus on the meaning
of the term “unconscionable tactics” in ORS 646.607(1) to
be too narrow. Plaintiffs contend generally that their con-
duct is not subject to the statute because of the nature of
the relationship between the law firm and the debtors. That
issue—whether the statute applies only to conduct between
persons in a customer relationship—relates to the scope of
the UTPA and requires interpreting the statute as a whole,
rather than only a part of it. We do agree, however, that
the term “unconscionable tactics” is critical to the resolution
of the parties’ dispute, and determining its meaning in the
context of the UTPA is an appropriate place to begin our
analysis. We then consider the meaning of the other words
in the statute and address plaintiffs’ use of the interpretive
360 Daniel N. Gordon, PC v. Rosenblum
principle ejusdem generis. Finally, we apply our understand-
ing of the statute to the facts of this case.
The statutory analysis in State v. Kurtz, 350 Or 65,
249 P3d 1271 (2011), is instructive in our effort to inter-
pret “unconscionable tactics” as that term is used in ORS
646.605(9). In Kurtz, the defendant sought to establish that
a Warm Springs Tribal Police Officer was not a “police offi-
cer” as that term is used in a criminal statute. Id. at 67. For
the purposes of that statute, “police officer” was defined in
ORS 801.395, which at the time provided that “ ‘Police offi-
cer’ includes a member of the Oregon State Police, a sheriff,
a deputy sheriff, [listing other officials but not tribal offi-
cers].” Id. at 70-71. The court noted that “statutory terms
such as ‘including’ and ‘including but not limited to,’ when
they precede a list of statutory examples, convey an intent
that an accompanying list of examples be read in a nonex-
clusive sense.” Id. at 75. The court therefore described ORS
801.395 as providing a “nonexclusive list of examples” but
“not expressly defin[ing]” the term “police officer.” Id. at 74.
As the examples did not include “tribal police officer,” the
court analyzed whether “tribal police officer” was included
within the “ordinary meaning” of “police officer.” Id. at 71-72.
After determining that the ordinary meaning of “police offi-
cer” did include a tribal police officer, the court looked “to
the interpretive influence of the nonexclusive list of exam-
ples” in the statute and considered whether the rule of
ejusdem generis should apply to otherwise limit the meaning
of “police officer.” Id. at 74.
Our analysis here follows a similar path. ORS
646.605(9) gives examples of conduct that constitute “uncon-
scionable tactics,” but that subsection does not actually define
the term. The statutory term “include, but are not limited
to” indicates that the examples of unconscionable tactics
are nonexclusive. See 350 Or at 75. None of the examples
in the statute refer to or describe debt collection activities.
Therefore, as in Kurtz, we must determine whether plain-
tiffs’ conduct fits within the general term “unconscionable
tactics.” To do so, we follow our normal analytical method for
interpreting statutory text, then consider the interpretive
influence of the four examples set out in the statute.
Cite as 361 Or 352 (2017) 361
To determine the meaning of words that are not
otherwise defined in a statute, we look first to their “plain,
natural, and ordinary” meaning. DCBS v. Muliro, 359 Or
736, 745-46, 380 P3d 270 (2016) (internal quotation marks
omitted); Kurtz, 350 Or at 72. Words that are legal terms
of art are exceptions to that rule; we give those words their
established legal meaning, often beginning our analysis
with Black’s Law Dictionary. Muliro, 359 Or at 746; State
v. Dickerson, 356 Or 822, 829, 345 P3d 447 (2015) (inter-
preting statutes by giving “legal terms * * * their established
legal meanings”). In consulting external sources, we are
mindful that sources contemporaneous with the enactment
of the statute are generally better evidence of the legisla-
ture’s intended meaning than anachronistic sources.3 See
Comcast Corp. v. Dept. of Rev., 356 Or 282, 296 n 7, 337 P3d
768 (2014) (“In consulting dictionaries, however, it is import-
ant to use sources contemporaneous with the enactment of
the statute.”).
We begin with the nonlegal word: “tactics.” We
understand “tactics” to mean actions taken as means
towards an end. See Webster’s Third Int’l Dictionary 2327
(unabridged ed 2002) (defining “tactic” as “a device or expe-
dient for accomplishing an end”). In the context of the UTPA,
however, the word has little substantive content independent
of the word “unconscionable.” “Unconscionable,” in contrast,
is a legal term of art requiring a more extensive analysis.
Both legal and lay dictionaries define “unconscionable” simi-
larly: circumstances that are “unfair,” “unjust,” or “shocking
to the conscience.” Black’s at 1694 (4th ed 1968); Webster’s
at 2486. Those familiar definitions, however, are incomplete
portrayals of the meaning of the term.
A look at the common-law doctrine of unconsciona-
bility is more useful. Broadly described, unconscionability
is an equitable doctrine that allows courts to avoid enforc-
ing or creating circumstances that are unfair, unjust, or
3
The legislature adopted ORS 646.607 and ORS 646.605(9)(a) to (c) in 1977.
Or Laws 1977, ch 195, § 1. ORS 646.605(9)(d) was adopted in 2009. Or Laws
2009, ch 215, §§ 1, 2. We thus focus our analysis on sources that indicate what the
legislature understood by “unconscionable” in 1977. See Holcomb v. Sunderland,
321 Or 99, 105, 894 P2d 457 (1995) (“The proper inquiry focuses on what the
legislature intended at the time of enactment and discounts later events.”).
362 Daniel N. Gordon, PC v. Rosenblum
shocking to the conscience, such as when one person exploits
a more favorable bargaining position to take advantage of
another. Although today the doctrine appears most often in
contract law, historically the doctrine has been applied in
many areas of law where courts sought to avoid what they
perceived as unfair outcomes. See generally Anne Fleming,
The Rise and Fall of Unconscionability as the “Law of the
Poor,” 102 Geo L J 1383 (2014).
This court has followed that pattern and has
applied the doctrine in a variety of contexts. For example,
we have held that a court may provide a remedy when a
person “takes unconscionable and inequitable advantage”
of another by appropriating information learned through
a contractual relationship. Kamin v. Kuhnau, 232 Or 139,
155, 374 P2d 912 (1962) (internal quotation marks omitted).
In probate proceedings, a court may consider as void dispo-
sitions in a will that result from a person taking “uncon-
scionable advantage” of the testator. Moran v. Bank of Calif.,
N.A., 206 Or 358, 371, 292 P2d 504 (1956). When sitting
in equity, a court may deny relief to a party whose uncon-
scionable conduct constitutes “unclean hands.” Taylor et ux
v. Grant et al, 204 Or 10, 26, 279 P2d 479, clarified, 204 Or
35, 279 P2d 1037, reh’g den, 204 Or 36, 281 P2d 704 (1955)
(internal quotation marks omitted). In property disputes,
“any form of unconscionable conduct, artifice, concealment,
or questionable means” may justify imposing a constructive
trust. Marston v. Myers et ux, 217 Or 498, 509, 342 P2d 1111
(1959) (internal quotation marks omitted). And when con-
struing statutes, a court may seek to avoid “unconscionable
results.” Parr v. Dept. of Revenue, 276 Or 113, 116, 553 P2d
1051 (1976) (internal quotation marks omitted).
Those varied applications of the doctrine of uncon-
scionability are less familiar than the iteration most com-
mon today: unconscionability in the formation or substan-
tive terms of a contract (known respectively as “procedural”
and “substantive” unconscionability) raised as a defense in a
contract enforcement action. See, e.g., Bagley v. Mt. Bachelor,
Inc., 356 Or 543, 554, 340 P3d 27 (2014) (discussing court’s
authority to refuse to enforce unconscionable contracts).
That formulation rose in prominence when it was codified
in Uniform Commercial Code section 2-302 and widely
Cite as 361 Or 352 (2017) 363
adopted by states during the 1960s. Fleming, 102 Geo
L J at 1422 n 249 (noting that by 1967 every state except
Louisiana had adopted the UCC); see Or Laws 1961, ch 726,
§ 72.3020 (adopting section 2-302). Later uniform laws reg-
ulating other fields of activity included unconscionability
provisions similar to section 2-302. Howard J. Alperin &
Roland F. Chase, Consumer Law: Sales Practices and Credit
Regulation § 174, 249 (1986) (identifying, among others, the
Uniform Consumer Credit Code (1968) and the Restatement
(Second) of Contracts (1981) as including unconscionability
provisions as a result of “the widespread acceptance of th[at]
U.C.C. concept”). Notably, Congress applied the doctrine of
unconscionability expressly to debt collection activities in
the 1977 Fair Debt Collection Practices Act. Pub L 95-109,
§ 808, 91 Stat 874, 879 (codified at 15 USC § 1692f) (“A debt
collector may not use unfair or unconscionable means to
collect or attempt to collect any debt.”). Around that time,
this court observed that “[u]nconscionability is a legal doc-
trine currently undergoing a rapid evolution.” W. L. May Co.
v. Philco-Ford Corp., 273 Or 701, 706, 543 P2d 283 (1975).
Two years later, the legislature adopted the statutes at issue
here.
Unconscionability thus was a doctrine in flux in
1977. It had a long history of broad, if uneven, applicability
in the common law, and the contours of the doctrine were
never particularly clear, given the diverse circumstances
in which it arose. That dynamism complicates an effort to
construct a complete explanation of the term’s meaning at
that time. Fortunately, that is not our task. The questions
before us are more limited: Does the doctrine of unconscion-
ability apply only to certain types of relationships, thereby
limiting the applicability of the term “unconscionable tac-
tic” in ORS 646.607(1)? If so, does that limitation render the
UTPA inapplicable to plaintiffs’ collection activities, which
were directed at persons with whom plaintiffs had no cus-
tomer relationship? In light of the common-law history of
the doctrine, which shows extensive application, and the
statutory history, which shows an expanding meaning at
the time the UTPA was enacted, we cannot conclude that
the doctrine of unconscionability or the term “unconscion-
able tactics” had such a limitation. Thus, the meaning of
364 Daniel N. Gordon, PC v. Rosenblum
the term “unconscionable tactics” itself provides no basis for
excluding plaintiffs’ conduct from the reach of the UTPA.
We turn to the remainder of the text to determine
whether the legislature intended that ORS 646.607(1) apply
only in the context of certain relationships; specifically, did
the legislature intend to exclude the relationship of a law-
yer seeking to recover a consumer debt obligation from a
debtor on behalf of a client? Relevant to our analysis are,
first, the meaning of the statutory examples provided in
ORS 646.605(9) and their effect on the general term “uncon-
scionable tactics.” Second, we consider the statutory phrases
“in connection with * * * collecting or enforcing an obliga-
tion” and “in the course of the person’s business, vocation or
occupation,” which further determine the circumstances in
which ORS 646.607(1) applies.
As described above, plaintiffs argue that the canon
of construction ejusdem generis informs the meaning of
“unconscionable tactics.” We think plaintiffs have improp-
erly applied that canon. Ejusdem generis is an interpretive
rule requiring “a nonspecific or general phrase that appears
at the end of a list of items in a statute * * * to be read as
referring only to other items of the same kind” as the items
in the list. Vannatta v. Keisling, 324 Or 514, 533, 931 P2d
770 (1997).
Again, Kurtz is instructive and demonstrates when
ejusdem generis does not apply. In that case, the Court of
Appeals had applied ejusdem generis in its interpretation of
the statute, which provided in part: “ ‘Police officer’ includes
[listing types of officials].” Kurtz, 350 Or at 71, 73-74 (inter-
nal quotation marks and citation omitted; emphasis in
Kurtz). This court disagreed with that approach, explain-
ing that ejusdem generis does not apply when the legislature
“signal[s] that it does not intend to confine the scope of a
general term in a statute according to the characteristics of
listed examples” through “statutory terms such as ‘includ-
ing’ and ‘including but not limited to.’ ” Id. at 75.
In this case, plaintiffs would apply ejusdem generis
to argue that the references to “a customer” in the exam-
ples mean that the general term “unconscionable tactics”
requires a customer relationship. We disagree. As in Kurtz,
Cite as 361 Or 352 (2017) 365
the phrase “include, but are not limited to,” ORS 646.605(9),
indicates that our interpretation of the term should not rely
on ejusdem generis.
But even in circumstances where ejusdem generis
is unwarranted, the maxim noscitur a sociis reminds us
that “the meaning of words in a statute may be clarified or
confirmed by reference to other words in the same sentence
or provision.” Goodwin v. Kingsmen Plastering, Inc., 359 Or
694, 702, 375 P3d 463 (2016). Thus, the examples in ORS
646.605(9) are relevant to our interpretation of “unconscion-
able tactics,” even outside the formal structure of ejusdem
generis, and provide context for our understanding of that
term. The first three examples of that subsection describe
unconscionable tactics in the context of an “agreement” or
“transaction.” The fourth example does not refer to any sort
of exchange between parties, instead describing a person
that “takes advantage” of disabled veterans, disabled ser-
vicemembers, active servicemembers, and their spouses.4
The notable absence of a transaction or agreement in that
example suggests that a transaction or agreement is not a
required element of “unconscionable tactics.”
The text of the statute surrounding “unconscion-
able tactic” also helps interpret that term. Prohibited uncon-
scionable tactics are those that are used “in connection with
* * * collecting or enforcing an obligation.” ORS 646.607(1).
Generally, where a person seeks to collect or enforce an
obligation, there is an obligor and an obligee. See Black’s at
1242, 1244 (10th ed 2009) (defining obligation, obligor, and
obligee). Those two parties are related by a “duty” of the
obligor to “do a certain thing” for the obligee. Id. at 1242.5
But ORS 646.607(1) encompasses relationships beyond that
between obligor and obligee: relevant conduct is not limited
to the collection or enforcement of an obligation, but may
be “in connection with” those actions. In other words, the
4
ORS 646.605(9)(d) was enacted in 2009, 32 years after the first three
examples. Or Laws 2009, ch 215, §§ 1, 2. It is still relevant to our analysis “for the
purposes of demonstrating consistency (or inconsistency) in word usage over time
as indirect evidence” of the legislature’s original intent. Halperin v. Pitts, 352 Or
482, 490, 287 P3d 1069 (2012).
5
We express no opinion about the types of duties that may constitute an
obligation for the purposes of ORS 646.607(1).
366 Daniel N. Gordon, PC v. Rosenblum
unconscionable tactics need not occur specifically within an
obligor/obligee relationship—they come within the statute if
they are connected to that relationship.
Here, plaintiffs are neither obligors nor obligees.
They do not own the debt or owe the money. The debtors,
however, are obligors who owe an obligation to the debt
owners—and plaintiffs are a lawyer and law firm that were
retained to collect the debt on behalf of the debt owners.
In short, there is a “connection” between plaintiffs and the
debtors’ underlying obligations. With these facts, we have no
trouble concluding that plaintiffs’ relationship to the debtors
and debt owners satisfies the “in connection with” require-
ment of ORS 646.607(1).
We also note that the UTPA applies to—and is lim-
ited to—unconscionable tactics employed “in the course of
the person’s business, vocation or occupation.” ORS 646.607.
Here, of course, plaintiffs represent clients in thousands of
debt collection matters each year, and do so in the course of
their business, so that standard is met.
In sum, the term “unconscionable tactic” in ORS
646.607(1) takes its meaning from the legal doctrine of
unconscionability, a doctrine that has been applied to
many areas of law where there is no customer relationship
of the sort urged by plaintiffs. The examples provided in
ORS 646.605(9) likewise do not indicate that a transac-
tion or agreement is required between plaintiffs and the
persons from who they seek to collect debts. The phrase
“in connection with * * * collecting or enforcing an obliga-
tion” shows that the legislature intended ORS 646.607(1)
to apply in connection with an obligor/obligee relationship.
And, the conduct must occur “in the course of the person’s
business, vocation or occupation.” Plaintiffs’ alleged con-
duct constitutes the use of “unconscionable tactics” under
the UTPA.
B.  ORS 646.608(1)
Plaintiffs also argue that the other provision of the
UTPA that DOJ relies on, ORS 646.608(1)(b), does not apply
to their debt collection activities. That statute provides, in
part:
Cite as 361 Or 352 (2017) 367
“(1)  A person engages in an unlawful practice if in the
course of the person’s business, vocation or occupation the
person does any of the following:
“* * * * *
“(b)  Causes likelihood of confusion or of misunder-
standing as to the source, sponsorship, approval, or certifi-
cation of real estate, goods or services.”
“Real estate, goods or services” are defined as “those that
are or may be obtained primarily for personal, family or
household purposes * * * and includes loans and extensions
of credit.” ORS 646.605(6)(a).
The state, focusing on the statutory text, argues
that a violation of ORS 646.608(1)(b) occurs when three ele-
ments are present: (1) a “person” (2) “in the course of the
person’s business, vocation or occupation” (3) “[c]auses like-
lihood of confusion or of misunderstanding as to the source,
sponsorship, approval, or certification” of, among other
things, a “loan or extension of credit.” The state asserts that
plaintiffs’ alleged conduct meets those elements and violates
the statute.
Plaintiffs’ argument again emphasizes their under-
standing of the UTPA’s purpose, which they describe as “to
regulate the provision of real estate, goods, and services to
consumers.” That purpose, they argue, constrains the reach
of the UTPA such that ORS 646.608(1)(b) only applies to
businesses that make “false or misleading representations
to consumers about their own goods or services.” (Emphasis
in original.) Plaintiffs, however, do not identify any part of
the statutory text that supports that limitation.
We agree with the state that the elements constitut-
ing a violation of ORS 646.608(1) are apparent on the face
of the statute. No one disputes that plaintiffs are “persons”
for the purposes of the UTPA, and we analyze the remain-
ing two elements to determine if plaintiffs’ proposed lim-
itation is contained in the text, and more generally, if ORS
646.608(1) applies to plaintiffs’ conduct.
Our analysis of the second element, “in the course of
the person’s business, vocation or occupation,” is aided by this
368 Daniel N. Gordon, PC v. Rosenblum
court’s decision in Wolverton v. Stanwood, 278 Or 341, 563
P2d 1203, reh’g den, 278 Or 709, 565 P2d 755 (1977), where
we considered the meaning of that phrase. In Wolverton, the
owner of a car service station sold a car engine to a customer.
Id. at 343. In the course of the sale, the seller made several
representations about the engine that were false. Id. The
buyer sued for damages under ORS 646.608(1)(g), which at
the time prohibited a seller from making certain false repre-
sentations about goods “in the course of his business, voca-
tion or occupation.” 278 Or at 343-44.6 Before this court, the
seller argued that he had not made the sale “in the course
of his business, vocation, or occupation,” because his busi-
ness was to service cars, and not to sell engines. Id. at 344.
This court construed “in the course of his business, vocation
or occupation” to mean that the statute applied “to those
unlawful practices which arise out of transactions which
are at least indirectly connected with the ordinary and usual
course of defendant’s business, vocation or occupation” and
held that the defendant’s actions met that standard. Id. at
345 (emphasis added).
The second element thus requires an “indirect
connect[ion]” between the unconscionable tactic and the
person’s business, vocation, or occupation. But neither the
text nor Wolverton requires the relationship that plaintiffs
posit, i.e., that a person only violates the UTPA if the person
causes confusion or misunderstanding about that person’s
own “real estate, goods or services.”
Nor does the text of the third element support the
plaintiffs’ proposed limitation. The third element requires
a causal relationship: a person subject to the statute must
have actually caused “likelihood of confusion or of misun-
derstanding as to the source, sponsorship, approval, or
certification” of “loans or extensions of credit.” That causal
requirement is entirely different from plaintiffs’ contention
that the provision applies only to a person’s false or mislead-
ing statements about that person’s loans or extensions of
credit. Here, the allegations indicate that plaintiffs’ conduct
6
Wolverton analyzed ORS 646.608 (1977), which contained the term “his
business” in place of the current version’s “the person’s business.” That textual
difference is irrelevant to our analysis.
Cite as 361 Or 352 (2017) 369
could have caused debtors to have likely confusion or misun-
derstanding about, for example, the interest rate applicable
to the debt or whether the debtors would have to pay the
debt owners’ attorneys’ fees.
We agree with the state and the Court of Appeals
that plaintiffs’ alleged conduct comes within a straightfor-
ward interpretation of ORS 646.608(1)(b): a person who
causes a likelihood of confusion or misunderstanding as to
the source, sponsorship, approval, or certification of any real
estate, goods, or services (including loans or extension of
credit) may be liable under ORS 646.608(1) if that person
satisfies the rest of the subsection. In short, the text requires
only two relationships. First, the person must “cause[ ]” the
likelihood of confusion or misunderstanding experienced
by the other person. ORS 646.608(1)(b). And second, that
causal relationship must exist in the context of “the course
of the [first] person’s business, vocation or occupation,” that
is, the causal relationship must “arise out of transactions
which are at least indirectly connected with the ordinary
and usual course of [the person’s] business, vocation or
occupation.” Wolverton, 278 Or at 345. Plaintiffs are alleged
to have caused likelihood of confusion or misunderstand-
ing and to have done so so in the course of their business,
thereby satisfying the requirements of ORS 646.608(1)(b).
We therefore conclude that plaintiffs’ debt collection activi-
ties are subject to ORS 646.607(1) and ORS 646.608(1)(b).
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit
court for further proceedings.