The “Least Sophisticated Consumer” is Everyone

The “least sophisticated consumer” standard in the Fair Debt Collection Practices Act protects you from debt collectors’ efforts to mislead and deceive you — whether you are gullible or shrewd. Clomon v. Jackson, 988 F. 2d 1314, 1318 (2nd Cir.1993).

As I see it, this term is not meant to insult you intelligent, educated, street-wise people who are duped into doing something or paying money that you shouldn’t have, or isn’t your legal obligation. The least sophisticated consumer standard acknowledges that, barring a clinically significant personality disorder, we humans are hard-wired to trust. As our Supreme Court stated: “There is no duty resting upon a citizen to suspect the honesty of those with whom he transacts business. Laws are made to protect the trusting as well as the suspicious.” Clomon, citing Federal Trade Commission v. Standard Education Society, 302 U.S. 112, 116, 58 S.Ct. 113, 115, 82 L.Ed. 141 (1937).

If you read the news these days, you may have noticed the pendulum swing from the warm group hug of the social safety net to the spit-shined sorry/not sorry of a conservative era that extols personal responsibility and deregulation. If you’ve been alive long enough, you’ve probably seen that pendulum swing a few times and may suffer side effects such as nausea, whiplash and eye strain.

For the small-L libertarians who pay the bills on time and wish others and our government could do the same, the tough love of caveat emptor is quite viscerally satisfying. I was taught from an early age that thou shalt not lease a car, and drive an old one as long as possible. My mother was one of those people who clipped cat food coupons and mailed them to me 2500 miles away so I could double my consumer power at the grocery store. I enjoyed listening to Dave Ramsey rant about the “stupid tax.” I turned away people from my office who were pulling in more per month in various forms of “government handouts” than I was earning at my job in the early days of solo practice, as usually they did not have true legal problems, but other problems I could not solve.

In an era that says to all of us — regardless of our tax bracket, education, or lack thereof — “suck it up, snowflake!” there is one place where we should at least be able to fight for ourselves: Our courts.

We may be completely on our own, up the creek of the free market rapids without a paddle. We may have agreed, as a country and as a culture, that we should all privately fund things that are freely provided in other developed countries. I don’t like paying taxes; sure, sounds fine. What may offend in principle may yet be pragmatic; and what may be correct in principle may still be unworkable.

Regardless of whether regulation is right or wrong, and regardless of whether capitalism or socialism is the ultimate answer, we still have a constitutional right to seek justice in our courts if, some person or business we were “unsophisticated” enough to dare trust, screws us. Some things are just flat-out wrong and unfair, and “there oughta be a law.”

I have news for you.

For consumer issues — I’m talking about the car dealership, insurance company, debt collector, credit reporting bureau, time share scam, companies claiming to settle all your debts for one easy monthly payment, spam robot calls pretending to be the IRS, late-night infomercials hawking products to cure your wrinkles or turn your private parts into a light saber — there are several laws. State and federal. And it is even in the Bill of Rights. It’s called the 7th Amendment. All throughout American history, we have decided that we are on our own to pursue happiness. It’s not guaranteed. And, we think it’s wrong to lie, cheat and steal. So we have laws about that and we let “little guys” enforce those laws. Yes, Alan Jackson, it’s all right to be little-bitty.

Isn’t that amazing? But those laws become flaccid if we do not regularly flex them. They become meaningless if, in the name of personal responsibility and economy-goosing, we put people in charge who will also do away with our ability to take very, very unfair things to court.

More and more I see companies willing to admit to their negligent and even intentional behavior, but tell us that their actions were still okay for some roundabout reason, or that it is the little guy’s fault because he should have known better than to let the unscrupulous and more powerful actor do what they did.

I am referring specifically to the Supreme Court’s recent decision in Henson v. Santander Consumer, which limits (but does not eliminate) the application of the Fair Debt Collection Practices Act to (“zombie”) debt buyers. Think that doesn’t affect you because you pay your bills? It might limit your power to seek justice if a debt buyer is pursuing you for a debt that is not yours, or something you paid years ago but they lost the record of it. (They will try to blame you, and you will feel small and stupid, even if you are not.)

The people in charge unflinchingly make the most vulnerable among us bear the risk of getting screwed or duped, not so much with an emphasis on personal responsibility — that is a good goal — but by closing the court house doors, and sometimes opening them only insofar as they can be a forum to continue to profit from taxing stupidity. P.T. Barnum told it like it was, and still is.

Our criminal justice system protects rights of the guilty people, so that it protects the innocent ones too. Our civil justice system must likewise treat the stupid people fairly, because we are all stupid from time to time. We are all the least sophisticated consumer. And that could be why the courthouse door can close a bit more every year and we don’t notice until something really unfair happens to us.