UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AARGON AGENCY, INC., Nevada No. 22-15352 corporation; ALLIED COLLECTION SERVICES, INC., a Nevada D.C. No. corporation; ASSETCARE, LLC, a 2:21-cv-01202- Texas limited liability company; RFB-BNW CAPIO PARTNERS, LLC, a Texas limited liability company; CF MEDICAL, LLC, a Nevada limited OPINION liability company; CLARK COUNTY COLLECTION SERVICE, LLC, a Nevada limited-liability company; COLLECTION SERVICE OF NEVADA, a Nevada corporation; NEVADA COLLECTORS ASSOCIATION, a Nevada non-profit corporation; PLUSFOUR, INC., a Nevada corporation; RM GALICIA, INC., doing business as Progressive Management, LLC; THE LAW OFFICES OF MITCHELL D. BLUHM & ASSOCIATES, LLC, a Georgia limited liability company,

Plaintiffs-Appellants,

v. 2 AARGON AGENCY, INC. V. O’LAUGHLIN

SANDY O'LAUGHLIN, in her capacity as Commissioner of State Of Nevada Department Of Business And Industry Financial Institutions Division,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Argued and Submitted September 2, 2022 San Francisco, California

Filed June 15, 2023 Before: William A. Fletcher, Jay S. Bybee, and Lawrence VanDyke, Circuit Judges.

Opinion by Judge W. Fletcher; Dissent by Judge VanDyke AARGON AGENCY, INC. V. O’LAUGHLIN 3

SUMMARY**

Consumer Rights

The panel affirmed the district court’s order denying preliminary injunctive relief to entities engaged in consumer debt collection in their action asserting a facial challenge to Nevada Senate Bill 248 (“S.B. 248”), which requires debt collectors to provide written notification to debtors 60 days before taking any action to collect a medical debt. Plaintiffs alleged that S.B. 248 is unconstitutionally vague, constitutes a prior restraint in violation of the First Amendment, and is preempted by the Fair Credit Reporting Act (“FCRA”) and the Fair Debt Collection Practices Act (“FDCPA”). The panel affirmed the district court on the grounds that plaintiffs failed to show a likelihood of success on the merits of their claims. The panel first rejected plaintiffs’ claim that the term “action to collect a medical debt” in S.B. 248 was unconstitutionally vague, noting that the implementing regulations set forth examples of actions that do, and do not, constitute actions to collect a medical debt. Addressing the First Amendment claim that S.B. 248 impermissibly burdens plaintiffs’ speech, the panel held that: S.B. 248 regulates commercial speech and therefore is not subject to strict scrutiny; communications to collect a medical debt “concerned lawful activity” and were not “inherently misleading;” Nevada’s asserted interest in ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 AARGON AGENCY, INC. V. O’LAUGHLIN

protecting medical debtors in Nevada from financial ruin in the wake of the Covid-19 pandemic was substantial; S.B. 248 directly advanced the government interest asserted; and S.B. 248 was not a more extensive regulation than necessary to serve the State’s interest. The panel next rejected plaintiffs’ argument that the FCRA, which regulates the creation and the use of consumer reports by consumer reporting agencies for certain specific purposes, expressly preempts S.B. 248 under 15 U.S.C. § 1681t(b)(1)(F) because that provision broadly preempts any state law “relating” to the duties of persons or debt collection agencies who furnish information to credit reporting agencies. The panel declined to read § 1681t(b)(1)(F) this broadly, determining rather that its presumptive