Hedging Their Bets

Debt is, by far, the most commonly-sought remedy in the courts of the United States. Yet few lawyers know this, because debt isn’t covered in any of the so-called “leading” casebooks on Remedies. So few law students will hear of the case of Henson v. Santander Consumer USA, Inc., which has just been decided by the US Supreme Court. 

A Shame

That will be a shame for a number of reasons. Probably the least interesting of those is that the opinion of the Court was the first to be given by Associate Justice Neil Gorsuch. 

Two points are much more noteworthy. One is Gorsuch’s writing style. The other is how that style, which has been widely praised, has made a monkey of those praising it. It’s a classic example of something I've noted before on this blog: of how failing to read a judgment carefully often causes the “reader” to reach a conclusion very different from the one to which the court actually came. 

Writing Style

Gorsuch is, apparently, a social conservative. His writing style, however, is anything but conservative. He clearly likes contractions, especially those involving the verb “to do.” One sentence, for example, begins: 

They held that the company didn’t qualify as a debt collector because it didn’t regularly seek to collect debts “owed … another” … 

Similarly, he’s comfortable starting sentences with conjunctions. Both “but” and “and” feature in such a role. And his sentences are generally quite short — but they aren’t so short as to render the opinion staccato. 

That was a feature of the pithy prose of the English judge, Lord Denning, whose sentences must surely have been shorter in average length than those of any other judge in the English-speaking world. But regular exposure to Denning’s prose felt like being poked repeatedly in the eye. Gorsuch’s prose, at least in this case, is much lighter and flows much more easily. 

Understatement

My favorite feature of Gorsuch’s writing in Henson, however, is its use of understatement. This is very different from the tone adopted in the last couple of decades by other conservative judges. 

Gorsuch doesn’t, for example, engage in any of the overblown rhetoric of the late Justice Antonin Scalia. Nor do we see any of the harshness that often characterizes a judgment authored by Justices Kennedy or Thomas. 

Defining Debt Collectors

Of course, the substance of what Gorsuch wrote is also important. In fact, the case was concerned with the appropriate interpretation of the Fair Debt Collection Practices Act, which regulates the conduct of debt collectors. The question was whether Santander, who had purchased defaulted loans from CitiFinancial, was acting as a debt collector when it then tried to recover the sums owing. 

The plaintiffs argued that Santander was, indeed, a debt collector, because it was not the original creditor. They relied on a passage in the Act, quoted above, that defines a debt collector as someone who pursues a debt “owed or due … another.” They argued that use of the past participle, “owed,” meant that anyone who was not the original creditor, but who sought to collect on the debt, must be a debt collector. 

Gorsuch had a simple answer: 

We would have to read the phrase not as referring to “debts that are owed or due another” but as describing “debts that were owed or are due another.” And supposing such a surreptitious subphrasal shift in time seems to us a bit much. 

Note: not “absurd,” “ridiculous,” “laughable,” “ludicrous,” “nonsensical,” “preposterous,” or “out of the question” — but “a bit much.” 

That’s the way to do it. 

The Catch

Some commentators have already paraded their views on Gorsuch’s opinion with the assertion that he has shown that he is a “strict constructionist” who simply “applies the law as written.” But they are trying too hard. This was a unanimous decision. Are we to take it that every Justice on the Court has now converted to strict constructionism? 

Nevertheless, there is something quite strict about Justice Gorsuch’s opinion. And yet it has proved far too subtle for those same commentators. They don’t seem to have appreciated that the light tone in which the opinion is written does not mean that its content is just froth. 

The real point of the judgment in Henson might turn out, in fact, to be not what Gorsuch said, but what he didn’t say. In fairness to Gorsuch, he did leave this clue: 

[T]he parties briefly allude to another statutory definition of the term “debt collector” — one that encompasses those engaged “in any business the principal purpose of which is the collection of any debts.”1 1 15 U.S. Code § 1692a(6). But the parties haven’t much litigated that alternative definition and in granting certiorari we didn’t agree to address it either. 

But it seems that the subtlety of his writing has foxed many of those reading what he wrote. 

Re-Defining Debt Collectors

For the moment, Henson holds that a third-party, who purchases a debt and then seeks to recover the sum owing on its own account, is not regulated by the Fair Debt Collection Practices Act because he is a creditor and not a debt collector. Such entities are thus apparently free to harass debtors in ways that the Act would not permit. 

But this conclusion is by no means set in stone, even though it was decided by a unanimous court. The meaning and significance of the alternative statutory definition of a debt collector as one who engages “in any business the principal purpose of which is the collection of any debts” has been left for another day. 

If the strictness of statutory interpretation that characterizes the decision in Henson is also applied to the quoted phrase, I think we can have few doubts that the implications of Henson itself will not be particularly far-reaching. 

In the world of finance, all the Justices on the Court have shown that they know how to hedge their bets. 

Footnotes