169 F.3d 1057

ESCHBACH, Circuit Judge,
concurring.
Although I agree with the conclusion ultimately reached in this case,'I write separately because of two concerns I have with the conclusions of my colleagues. First, I do not believe the court employs the proper formulation of Federal Rule of Civil Procedure 12(b)(6) in reversing Judge Lindberg’s decision. The court’s opinion here applies Rule 12(b)(6) in a manner inconsistent with the Supreme Court and this circuit’s precedent. That application of Rule 12(b)(6) appears to remove nearly all power from the rule. I am also troubled by the court’s emphasis on survey evidence and the importance it may have in future Fair Debt Collection Practices Act (“FDCPA”) cases.
Federal Rule 12(b)(6) permits dismissal for “failure to state a claim upon which relief can be granted.” The district court dismissed Johnson’s complaint on that ground. None of this is groundbreaking. Yet, in examining that Rule 12(b)(6) dismissal, this court makes a subtle, yet important change in review of Rule 12(b)(6) dismissals. The Rule 12(b)(6) analysis conducted is brief, and it simply states, “[a] contention that a debt-collection notice is confusing is a recognized legal claim; no more is needed to survive a motion under.Rule 12(b)(6),” and that “a claim may fail on the facts, but assessing factual support for a suit is not the office of Rule 12(b)(6).” In doing so, the opinion moves away from the longstanding test this coux*t applies in analyzing Rule 12(b)(6) motions — a test set forth by the Supreme Court.
“A court may dismiss a complaint [under Rule 12(b)(6) ] only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the- allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Moriarty v. Larry G. Lewis Funeral Directors Ltd., 150 F.3d 773, 777 (7th Cir.1998) (citing Hishon); Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir.1998) (same); Cook v. Winfrey, 141 F.3d 322, 327 (7th Cir.1998) (same). The majority’s statement of what is required of a plaintiff in order to survive a Rule 12(b)(6) motion appears to focus only on the legal theory under which the plaintiff seeks recovery. However, the Supreme Court’s test stated in Hishon and application of Rule 12(b)(6) in this circuit make it clear that Rule 12(b)(6) requires more than a cursory examination of the theory of recovery a plaintiff offers in his or her complaint.
In Jang v. A.M. Miller Assoc., 122 F.3d 480 (7th Cir.1997), the plaintiff alleged a debt collection agency engaged in false, deceptive, or misleading credit practices by including the required validation notices in dunning letters while never intending to actually validate a debt upon request. Instead, upon receipt of a validation request, the collection agency would return the debtor’s file to the original creditor. See id. at 482. The district court granted defendant’s motion to dismiss under Rule 12(b)(6), and this court affirmed. See id., at 484. In doing so, the panel looked not only to the theory of recovery, but the basis behind that theory of recovery. A collection agency does not violate the FDCPA by deciding to not pursue a debtor who seeks validation of a debt. Nor does a collection agency violate the FDCPA by sending , the validation information as required by the statute. Because of this, there was no set of facts the plaintiff could have proven upon which relief could have been granted. The panel, correctly, affirmed the 12(b)(6) dismissal of plaintiffs complaint.
Using the Rule 12(b)(6) analysis applied in Johnson would lead to a different result in Jang. In the same way that Johnson’s “contention that a debt collection notice is confusing is a recognized legal claim,” so too was Jang’s contention that a debt collector engaged in false, misleading, or deceptive credit practices. Applying the test of the Johnson majority to Jang’s complaint, Rule 12(b)(6) dismissal would have been just as inappropriate in that case as in Johnson’s.
This court conducted a inquiry similar to that in Jang in reversing a Rule 12(b)(6) dismissal in Gammon v. GC Services, 27 F.3d 1254 (7th Cir.1994). The plaintiff in Gammon alleged that the dunning letter he received improperly represented that the collection agency authoring the letter was vouched for or affiliated with a governmental agency. Again, that contention is a recognized theory of recovery. Claiming that a collection agency is “vouched for, bonded by or affiliated with” any- governmental body is forbidden by the FDCPA. See 15 U.S.C. § 1692e(l). That should have been all that was necessary in order for this court to reverse a Rule 12(b)(6) dismissal of Gammon’s claim. Yet, the Gammon court’s analysis went further than this. The panel examined the language of the letter, not just the contention by the plaintiff, in conducting its analysis.
Turning to the application of Rule 12(b)(6) in Johnson’s case, I believe the majority is correct and dismissal pursuant to Rule 12(b)(6) is inappropriate. However, the analysis I use in reaching that decision differs from that of the majority.
The letter in Johnson demands “prompt payment.” It does not impose a time period for payment that directly conflicts with the thirty days a debtor has to request validation of a debt. See Bartlett v. Heibl, 128 F.3d 497, 498 (7th Cir.1997) (finding that clause requiring payment of debt within one week stripped the validation notice of all meaning). The letter does not even seek “immediate” payment. See Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir.1998) (under “least sophisticated consumer” standard, demand for immediate payment overshadowed the validation notice).
Instead, the letter demands only “prompt” payment. Admittedly, determining a difference between “immediate” and “prompt” is a fine distinction. Still, one exists, and I believe it is one that even the unsophisticated consumer could understand. “Prompt” is commonly used to mean “current” or “on time.” “Immediate” has a far more direct meaning. It means “right this second,” or “at this very moment.” I believe an unsophisticated consumer is capable of making and understanding that distinction.
However, I am not persuaded that an unsophisticated consumer would, without a doubt, grasp this subtle distinction. An unsophisticated consumer reading the letter Johnson received is confronted with two pieces of information — the required validation notice giving a debtor thirty days to request validation of his or her debt, and the request for prompt payment. While not necessarily contradictory, those two pieces of information could be confusing to the unsophisticated consumer. Therefore, there is some set of facts upon which the plaintiff could prevail. Rule 12(b)(6) dismissal was then inappropriate, and Judge Lindberg’s decision must be reversed.
I am also troubled by the majority’s discussion of the use of survey evidence in FDCPA claims. The FDCPA was enacted to protect consumers incurring debts for “personal, family or household purposes.” See S. Rep. 95-382, reprinted at 1977 U.S.C.C.A.N. 1695 (1977). One of the stated purposes of the FDCPA is “to promote consistent State action to protect consumers against collection abuses.” 15 U.S.C. § 1692(e) (emphasis added). Reading these together, it becomes a fair statement that the FDCPA was passed to protect the common consumer debtor who may not owe much more than one hundred dollars. See, e.g., Trull v. GC Servs. Ltd. Partnership, 961 F.Supp. 1199, 1201 (N.D.Ill.1997) (resulting from collection of $68 debt to record club); White v. Goodman, No. 97 C 7078, 1998 WL 850814, *1 (N.D.Ill.Dec. 2, 1998) (resulting from collection of $18 debt to book club); Epps v. Etan Industries, Inc., No. 97 C 8770, 1998 WL 851488, *1 (N.D.Ill. Dec. 1,1998) (resulting from collection of $27 debt to video store).
Although the majority does not go so far as explicitly requiring survey evidence in analyzing FDCPA claims, the lengthy discussion of the subject in the opinion implies a strong preference for that evidence. I fear this expression of preference will gut the purposes of the FDCPA. Using the majority’s analogy, survey evidence in trademark and trade dress eases can be very costly. See, e.g., Tonka Corp. v. Rose Art Industries, Inc., 836 F.Supp. 200, 210 n. 10 (D.N.J.1993) (stating cost of pilot study to be $7,850; noting more extensive survey could increase cost of study by more than $29,000); Lon Tai Shing Co., Ltd. v. Koch & Lowy, 19 U.S.P.Q.2d 1081, 1991 WL 170734, *19 (S.D.N.Y. June 20, 1991) (noting cost of conducting proper survey in trademark and trade dress ease could exceed $100,000). However, unlike the litigants in trademark and trade dress cases, plaintiffs in FDCPA cases will almost always be typical consumers. Even considering the provision of the FDCPA which allows fee and cost shifting for successful litigants, see 15 U.S.C. § 1692k(a)(3), I believe that a system which places this additional cost on litigants will make the cost of filing suit under the FDCPA prohibitive. This external barrier to suit will chill potential litigants from even bringing FDCPA claims, and the protection of the FDCPA will be lost for most consumers.
I cannot disagree with my colleagues’ conclusion, merely the path they take to reach that conclusion. For the foregoing reasons, I concur.
I concur only with regard' to the decision in Johnson v. Revenue Management Corp., 98-3001. I was not a member of the panel that heard Wollert v. Client Services, Inc., 98-3146, and I take no part in that decision.
. "Prompt” is defined in this context as "[o]n time” or “done without delay.” See Webster’s II New Riverside University Dictionary 942 (i 994). "Immediate,” on the other hand, is defined as “[ajcting or taking place with the interposition of another agency or object.” See id. at 611. Roget’s II New Thesaurus does not even list "prompt” and "immediate" as synonyms. See Roget’s II New Thesaums 515, 773 (1988).

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