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Thursday, October 05, 2006

Comments

Brian Wolfman

Interesting comment. "Least sophisticated consumer" is a fuzzy concept to be sure, but that's to be expected. As the statute is written, a court has to decide from what perspective the alleged deception or mispepresentation should be judged. Whether the standard is a "reasonable" consumer perspective or something different (e.g., a gullible consumer perspective), the standard will necessarily be squishy. But that doesn't mean the standard is completely meaningless. Much of tort law, after all, is based on what a "reasonable" person would do under the circumstances, and a body of case law has developed to put flesh on the concept and lend some predictability to the system.

The FDCPA could have been based only on rules, that is, highly specific prohibitions, but that would have given debt collectors the freedom to practice deception simply by working around the rules. Congress wisely, I think, chose to enact a broad standard (plus a few specific rules) rather than rules alone.

On the other hand, it may be true that a "least" sophisticated consumer is potentially problematic. If taken literally, the standard could focus on the perspective of the one person in the world most likely to be deceived or manipulated, meaning that even perfectly truthful, perfectly reasonable statements could lead to liability. But, in practice, it hasn't worked out that way. Courts adopting the least sophisticated consumer standard have understood that the concept has some limits. It means that you don't look at the problem from the perspective of the "reasonable" or ordinary consumer, but from the perspective of a consumer who, because of a lack of sophistication, is relatively more likely than the average consumer to be deceived. See, e.g., Jeter v. Credit Bureau (11th Cir. 1985). I think that comports with Congressional intent.

Mahlon

I've always had a problem with the least sophisticated debtor standard. What you end up with is a bunch of lawyers and judges haggling about semantics in applying a standard that must presume illiteracy. It's nonsense. Don't try to use a fuzzy concept to attack fuzzy language. All you end up with is lint.

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