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78 U. Cin. L. Rev. 1079 (2009-2010)
Secondary Liability under the Fair Debt Collection Practices Act

handle is hein.journals/ucinlr78 and id is 1085 raw text is: SECONDARY LIABILITY UNDER THE FAIR DEBT COLLECTION PRACTICES ACT Darren W Ford* I. INTRODUCTION Consider a scenario.' Alex Jones and Bob Smith, both attorneys, are fifty-percent owners of The Law Offices of Jones & Smith, LLC (Jones & Smith), a limited liability company (LLC) organized under the laws of the State of Ohio.2 Alex and Bob primarily practice employment law, but Jones & Smith also operates a debt collection agency under the same name. Jones & Smith employs three account representatives who engage in the business's day-to-day collection activities. Although Bob and Alex focus primarily on their law practice, they also ensure that the business complies with the federal Fair Debt Collection Practices Act3 (the FDCPA or the Act) and state law. One way Alex and Bob monitor compliance with the FDPCA and state law is by drafting the form letters notifying consumers that their accounts have been referred to Jones & Smith for collection. In an average three-month period, the collection business sends approximately 3,000 of these form letters to individuals whose accounts have been referred to the LLC. Jones & Smith contracts with XYZ Mailing Services, Inc. (XYZ) to stuff and send the notifications. A second review is not conducted prior to XYZ mailing these notices. The form letter is printed on The Law Offices of Jones & Smith, LLC letterhead. The letter informs the recipients that their accounts have been referred to this office, and includes disclosures required by the FDCPA. The letter also contains a voucher addressed to The Law Offices of Jones & Smith, LLC instructing recipients to make their checks payable to Jones & Smith. At the bottom, in lieu of an individual's signature, the form letter contains the * Associate Member, 2008-2009 University of Cincinnati Law Review. Special thanks to my family, and especially my wife, for their support. 1. This fact pattern is based on the facts of Kistner v. Law Offices of Michael P. Margelefsky, LLC, 518 F.3d 433 (6th Cir. 2008), discussed in detail in Part Ill.B, infra. 2. See generally In re ICLNDS Notes Acquisition, LLC, 259 B.R. 289, 292 (Bankr. N.D. Ohio 2001) (members and managers of Ohio LLC are not personally liable for the LLC's debts solely by reason of being members or managers (citing OHIO REV. CODE. ANN. § 1705.48 (West 2000)). 3. 15 U.S.C §§ 1692-1692p (2006). 1079