In McRobie v. Credit Protection Association, 2018 WL 5608121 (E.D.Pa. 2018), Judge Leeson held that a red, white, and blue texted envelope that said “official notice” on it did not constitute misrepresenting that the communication was from a government official under the FDCPA.
Case law interpreting § 1692e(9) is sparse. The parties cite no Third Circuit precedent interpreting the provision; nor has this Court found any. However, the Supreme Court has recognized that Congress passed § 1692e(9) to prevent debt collectors from “misrepresenting” that they are government officials. See Sheriff v. Gillie, 136 S. Ct. 1594, 1601 (2016) (citing S. Rep. No. 95–382, p. 8 (1977)). Indeed, most courts that have applied § 1692e(9) have limited its reach to “egregious” situations where a debt collector “overtly impersonates a government agency or where it attempts to hide its identity by using a false alias.” Sullivan v. Credit Control Servs., Inc., 745 F. Supp. 2d 2, 10 (D. Mass. 2010); Buckalew v. Suttel & Hammer, P.S., No. CV–10–3002–LRS, 2010 WL 3944477, at *2 (E.D. Wash. Oct. 7, 2010) (“The general consensus in the case law is that violations of Section § 1692e(9) arise in situations where a debt collector overtly impersonates a governmental agency, or where a debt collector attempts to hide its identity by using a false alias.”). . . By contrast, the mailer Plaintiff received does not look like a government document. Although it bears the designation “Official Notice” and uses red, white, and blue font, the mailer contains no features that suggest it was sent by a government agency or that resemble official court documents. Nor does it suggest in any way that Defendant sent it on behalf of a specific government entity. Moreover, the mailer bears Defendant’s logo, a return address listing the return addressee as “Credit Protection Association, LP,” and a logo stating that Defendant is a member of the International Association of Credit and Collections Professionals. Proposed Am. Compl. ¶ 19. Despite the mailer’s patriotic color scheme, even the least sophisticated consumer would recognize it as coming from a collections agency and not the government. See Kuehn v. Cadle Co., No. 504CV432OC10GRJ, 2007 WL 1064306, at *4–5 (M.D. Fla. Apr. 6, 2007) (holding that letter did not violate § 1692e(9) where it listed no government entity, was sent on collection agency’s letterhead, and displayed the agency’s return address), aff’d, 335 F. App’x 827 (11th Cir. 2009); Osborn v. Ekpsz, LLC, 821 F. Supp. 2d 859, 876–77 (S.D. Tex. 2011) (granting motion to dismiss § 1692e(9) claim where letter printed on collection agency’s letterhead clearly identified sender as “Texas Final Judgments, LLC”); Sullivan, 745 F. Supp. 2d at 10–11 (rejecting claim based on notice that was printed on collection agency’s letterhead and did not reference any government agency). Accordingly, Plaintiff’s proposed Amended Complaint fails to state a claim under § 1692e(9). Amendment is futile and will be denied with respect to Count III of Plaintiff’s proposed Amended Complaint.