Gutierrez, Francis v. AT&T Broadband, LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3484
FRANCIS GUTIERREZ and JOSEPH RYDEL,
Plaintiffs-Appellants,
v.
AT&T BROADBAND, LLC and COMMUNICATIONS
ANDCABLE OF CHICAGO, INC.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 7025—Amy J. St. Eve, Judge.
____________
ARGUED JUNE 8, 2004—DECIDED SEPTEMBER 1, 2004
____________
Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit
Judges.
KANNE, Circuit Judge.
I. History
Francis Gutierrez and Joseph Rydel both contracted for
cable television service with an entity known to them only
2 No. 03-3484
as “AT&T Broadband.”1 Both disputed charges that ap-
peared on their cable bills, both refused to pay, and both
accounts were ultimately turned over to Credit Protection
Association (“CPA”), a third-party collections agency. The
letters they received from CPA represented that it was
collecting debts on behalf of “AT&T Broadband.”
Unknown to Gutierrez and Rydel, “AT&T Broadband” was
not the name of a real entity or their actual creditor.
Instead, it was the brand name used by their true creditors,
cable franchisees LaSalle Telecommunications, Inc. and
Communications and Cable of Chicago, Inc. (collectively,
“Chicago Cable”). Confusingly, an entity with the name
AT&T Broadband, LLC (as opposed to “AT&T Broadband”—
no LLC) does exist. And complicating matters further,
Chicago Cable and AT&T Broadband, LLC are sister corp-
orations, falling under the massive umbrella of their mutual
parent, AT&T Corp.
When Rydel decided to file a state court class action in
Illinois over the disputed charges, he did so against AT&T
1
The parties do not dispute that when Gutierrez and Rydel first
ordered cable, they did so through “AT&T Cable Services.” The
work orders for cable installation that bear their signatures dis-
play, in the upper left-hand corner, AT&T’s familiar trademark
consisting of the globe design and the word “AT&T,” with “AT&T
Cable Services” appearing immediately below. The parties also do
not dispute that “AT&T Cable Services” later changed its name to
“AT&T Broadband” to reflect that consumers could obtain high-
speed Internet access as well as cable television service through
that provider. The change appears to have taken place sometime
in the fall of 2000. Rydel signed up for cable in April of 2000, and
most of the documents received by him pertinent to this suit list
“AT&T Cable Services” as his provider. Gutierrez, who signed up
for cable in September of 2000, received documents mainly listing
“AT&T Broadband” as her provider. For ease and consistency, we
refer to the provider as “AT&T Broadband” throughout, except
where it becomes significant to our analysis.
No. 03-3484 3
Broadband, LLC (“Corporate Broadband”), believing it to be
his creditor. Corporate Broadband then moved to dismiss
the complaint against it, claiming that Rydel sued the
wrong entity. It was then that Rydel learned that “AT&T
Broadband” (the brand name) and AT&T Broadband, LLC
(the corporate entity) were purportedly not the same and
that his true creditor was Chicago Cable.2
This revelation—that Chicago Cable provided Rydel’s
cable service and was his true creditor, not Corporate
Broadband—led to the instant suit under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et
seq. Both Gutierrez and Rydel sued Corporate Broadband
under § 1692j for allegedly “design[ing], compil[ing], and
furnish[ing] any form knowing that such form would be
used to create the false belief in a consumer that a person
other than the creditor is participating in the collection
of . . . a debt . . . .” In support of their claim, plaintiffs point
to, among other documents, their bills and collection letters
that direct payment be made to “AT&T Broadband” (not
AT&T Broadband, LLC), at a Denver, Colorado address
where Corporate Broadband receives mail. Because of the
Denver address and the use of the name “AT&T Broad-
band,” the plaintiffs argue that Corporate Broadband must
have been the entity that designed, compiled and furnished
the bills and collection letters. They further allege that the
documents deliberately deceived them into thinking
Corporate Broadband, and not their true creditor Chicago
Cable, was attempting to collect their debts. The problem
with that, the plaintiffs urge, is Corporate Broadband led
them to believe they were dealing with communications
giant AT&T, and not the lowly franchisee, Chicago Cable,
2
At oral argument, counsel for the defendants assured us, with-
out contradiction from the plaintiffs, that the state court matter
Rydel filed relating to the billing dispute remains alive, despite
initially naming the wrong entity, Corporate Broadband.
4 No. 03-3484
in an attempt to intimidate them into paying their cable
bills above other possible outstanding debts.
Plaintiff Rydel (Gutierrez does not join in this count of the
complaint) also alleged that Chicago Cable violated § 1692e,
which makes it unlawful for a debt collector to use any false,
deceptive, or misleading representations or means in connec-
tion with the collection of any debt. Rydel argues that
Chicago Cable meets the definition of “debt collector” under
the FDCPA because, “in the process of collecting his own
debts, [Chicago Cable] use[d] any name other than his own
which would indicate that a third person is collecting or
attempting to collect such debts.” 15 U.S.C. § 1692a(6).
Rydel asserts that even though Chicago Cable represented
itself as “AT&T Cable Services” or “AT&T Broadband”
throughout its relationship with him, the bills requesting
payment to “AT&T Cable Services” and the collection letter
listing “AT&T Broadband” as payee amounted to the use of
a name other than Chicago Cable’s own, indicating that a
third person (“AT&T Cable Services” or “AT&T Broadband”
or, perhaps even Corporate Broadband) was attempting to
collect his debts. Again, the problem with Chicago Cable’s
behavior, Rydel alleges, relates to its tapping into the power
of its parent, AT&T, producing undue pressure on him to
pay his bills. And, because “AT&T Cable Services” and
“AT&T Broadband” were not registered assumed names of
Chicago Cable under Illinois law and not registered service
marks under federal trademark law, Rydel complains that
he had no means of identifying his true creditor, resulting in
the mistake in state court where he wrongly filed against
Corporate Broadband.
The district court granted summary judgment to both
Corporate Broadband and Chicago Cable. Gutierrez and
Rydel timely appeal, and we affirm.
No. 03-3484 5
II. Analysis
A. Heller, Ryczek, and Politano Affidavits
Before we turn to the merits of the district court’s de-
cision, we must first address the plaintiffs’ complaint that
the district court abused its discretion in refusing to strike
three affidavits the defendants proffered in support of their
summary-judgment motion. The plaintiffs argue in the
alternative that if the district court was unwilling to strike
the affidavits, it should have reopened discovery for the
limited purpose of allowing plaintiffs the opportunity to
depose the three affiants.
It is questionable whether the plaintiffs’ half-hearted re-
quest for additional discovery below preserved the issue for
appeal. After making a fully-developed argument request-
ing that the district court strike the offending affidavits (a
fairly harsh remedy), the plaintiffs’ request for more
depositions appeared as an afterthought at the end of their
reply brief in support of their motion to strike. The motion
nowhere mentioned Federal Rule of Civil Procedure 56(f)
(which specifically provides for reopening of discovery in the
midst of summary judgment briefing), and was unsupported
by affidavits as generally required by Rule 56(f). See Woods
v. City of Chicago, 234 F.3d 979, 990 (7th Cir. 2000) (finding
that failure to file an affidavit in support of a Rule 56(f)
motion alone justifies the district court’s decision to deny
the additional discovery), cited with approval in First Nat’l
Bank & Tr. Corp. v. Am Eurocopter Corp., No. 02-2274,
2004 U.S. App. LEXIS 16360, at *30 (7th Cir. Aug. 9, 2004).
Even giving the plaintiffs the benefit of the doubt as to
the viability of their request to remand this case for addi-
tional discovery, we find no reason to disturb the district
court’s decision to allow the three depositions to stand,
which we review for an abuse of discretion. See McLeod v.
Arrow Marine Transp., Inc., 258 F.3d 608, 617 (7th Cir.
2001); Woods, 234 F.3d at 990.
6 No. 03-3484
1. Heller Affidavit
The district court refused to strike Jennifer Heller’s affi-
davit because the plaintiffs admitted all material facts for
which the affidavit was cited in support; thus, the district
court reasoned, defendants’ reliance on the Heller affidavit
did not prejudice the plaintiffs.
The plaintiffs counter that Heller’s affidavit contained a
statement with which they did not agree. Yet, we observe
that the defendants did not cite to or rely upon the specific
paragraph plaintiffs dispute in support of their summary-
judgment motion. Rather, the defendants used Heller’s
affidavit solely to outline AT&T Corp.’s corporate structure
during the time period relevant to this case and to explain
the parent-subsidiary relationships among the various en-
tities at issue. (R. 52, ¶¶ 6-9, 18.) The plaintiffs admitted
these particular facts. (R. 59, ¶¶ 6-9, 18.)
There is no evidence that the district court, in ruling on
the defendants’ summary-judgment motion, relied on
Heller’s affidavit except for the propositions for which it
was specifically cited (and with which the plaintiffs have no
argument). Because Heller’s affidavit in no way prejudiced
the plaintiffs’ ability to oppose the defendants’ summary-
judgment motion, the district court properly refused to
strike it or to reopen discovery to allow Heller’s deposition.
2. Ryczek Affidavit
We agree with the district court that the plaintiffs were
on notice prior to the close of discovery that Martha Ryczek,
Chicago Cable’s collections manager, had information perti-
nent to this matter and was a potential witness, despite the
fact that she was not listed in any of the defendants’
discovery responses or offered in response to the plaintiffs’
Rule 30(b)(6) deposition notice. Because the plaintiffs had
a fair opportunity to seek discovery from Ryczek prior to the
No. 03-3484 7
deadline for filing summary-judgment motions, the district
court did not abuse its discretion in refusing to strike her
affidavit or allow additional discovery.
Richard Baucom, the defendants’ designated Rule 30(b)(6)
deponent, discussed Ryczek and her job responsibilities dur-
ing his deposition in response to detailed questions by the
plaintiffs’ counsel. Those questions were quite clearly
directed at finding additional witnesses who would assist
plaintiffs in the discovery process. We reproduce the rele-
vant deposition testimony in full:
Q: Who sets computer-set standards for sending a bill
from your company to Credit Protection Association,
L.P.?
A: Designated employees within our organization.
Q: Who would be such a designated employee within
your organization?
A: A Martha Ryczek.
Q: Spell her last name, please?
A: R-y-c-z-e-k.
Q: What is her title?
A: Credit and Collections Manager.
Q: And where does she work?
A: Schaumburg.
Q: And does she do the day-to-day operations as it re-
lates to collection of accounts for your company?
A: Define “day-to-day operations.”
Q: She’s the one who oversees collectors making phone
calls, making sure that they do them in a certain
way, making certain that letters are sent out in a
certain manner and in a certain frequency and so
forth?
8 No. 03-3484
A: It would be under her purview. She does not do it
directly.
Q: But she’s the one in charge?
A: Yes. She reports to me.
Q: Okay. She reports to you and you supervise her
only in a very—in a limited fashion? You don’t like
watch over her to see that she’s running things in
[sic] a day-to-day basis?
A: No.
Q: No, that’s correct or no, I’m incorrect?
A: No, that’s correct.
Q: Okay. This is like hide and seek. I’m actually trying
to find the people who are going to be responsive to
my requests.
(R. 62, Ex.12 at 118-19); see also (R. 62, Ex. 3 at 29-30)
(Ryczek mentioned, six days after Baucom’s deposition, by
Diane Evans, debt collector CPA’s representative, as CPA’s
Chicago-area collections manager contact at AT&T Broadband
to whom they report.)
Plaintiffs argue now that the above did not put them on
notice that Ryczek possessed relevant information about
Chicago Cable’s internal and external collection processes,
reasoning that because she reported to Baucom, Baucom
would possess the same information as Ryczek. But Baucom’s
and Evans’s testimony should have alerted the plaintiffs
that Ryczek would have more and better information with
regard to collections than would Baucom. Specifically, their
testimony revealed that Ryczek oversaw Chicago Cable’s day-
to-day collections operation, was supervised only minimally by
Baucom, and was CPA’s direct client contact.3
3
In particular, the plaintiffs protest that Ryczek’s surprise affi-
davit testimony stating that Chicago Cable’s billing system auto-
(continued...)
No. 03-3484 9
Based on the above, we cannot conclude that the district
court abused its discretion in allowing Ryczek’s affidavit to
stand. Although the defendants did have an obligation to
seasonably supplement their Rule 26(a) disclosures and in-
terrogatory responses, such amendments are required only
in certain circumstances, such as when the additional infor-
mation “has not otherwise been made known to the other
parties during the discovery process . . . .” Fed. R. Civ. P.
26(e)(1), (2); see also David v. Caterpillar, Inc., 324 F.3d
851, 856 (7th Cir. 2003). Here, the plaintiffs knew of Ryczek
and the fact she possessed information relevant to this case
through Baucom’s and Evans’s depositions.
Finally, although we in no way condone the defendants’
choice to provide Baucom, a largely unresponsive witness,
as their Rule 30(b)(6) deposition representative, we also
note that the plaintiffs made a tactical decision not to insist
that the defendants produce better witnesses after Baucom
proved inadequate. Such a request very likely would have
been viewed favorably had it been made prior to the close of
discovery, with possible sanctions levied against the
defendants for failing to provide an appropriate deponent in
the first instance. Yet, the plaintiffs raised their dissatisfac-
tion with Baucom after the close of discovery, in the midst
of summary-judgment briefing, and with prior knowledge
that better witnesses, like Ryczek, existed. The district judge
was not required to belatedly punish the defendants by
striking Ryczek’s affidavit or reopening discovery in such
circumstances. See, e.g., Grayson v. O’Neill, 308 F.3d 808,
816 (7th Cir. 2002) (“Where a party’s own lack of diligence
3
(...continued)
matically forwarded Rydel’s account for collection damaged their
case. But, as reflected at the beginning of the deposition excerpt
quoted above, the plaintiffs directly asked Baucom who set the
computer-set standards for forwarding a bill to CPA. He told them
that Ryczek did.
10 No. 03-3484
is to blame for that party’s failure to secure discoverable
information, it is not an abuse of discretion to deny a Rule
56(f) motion.”), cert. denied, 124 S. Ct. 155 (2003); Kalis v.
Colgate-Palmolive Co., 231 F.3d 1049, 1057 n.5 (7th Cir.
2000) (quoting Pfeil v. Rogers, 757 F.2d 850, 857 (7th Cir.
1985)).
3. Politano Affidavit
The district court also found that the plaintiffs were ade-
quately on notice that Politano was a potential witness.
Although we found the district court to be on firm ground
with respect to Ryczek, we cannot agree this was the case
with Politano.
The plaintiffs admit they had seen Politano’s name on a
service mark application they uncovered through their own
Internet search of the United States Patent and Trademark
Office’s website; it was not a document produced to the
plaintiffs by the defendants. That document showed that
“AT&T Broadband” was registered as a service mark of
AT&T Corp., that the application was filed December 6,
2001 (three months after the filing of the present lawsuit),
and that the attorney of record was Politano. The plaintiffs
asked Baucom, the defendants’ Rule 30(b)(6) designee, “Do
you know who Frank Politano is?” Baucom responded, “No,
I do not.” Politano, it turns out, works for the parent, AT&T
Corp., as its trademark and copyright counsel. His affidavit
was offered to explain how Chicago Cable, an AT&T Corp.
subsidiary, came to provide cable services under the brand
name “AT&T Broadband.”
We do not believe that the service mark application and
Baucom’s deposition testimony were enough to put the
plaintiffs on notice that Politano possessed information per-
tinent to their claims such that they would be expected to
request his deposition or anticipate that his affidavit might
be offered in support of the defendants’ summary-judgment
No. 03-3484 11
motion. No witness indicated Politano possessed informa-
tion pertinent to this matter or was even employed by
AT&T during the relevant time period.
We believe that the correct course would have been to
reopen discovery to allow for Politano’s deposition. Yet, de-
spite the district judge’s misstep with respect to her analy-
sis on this issue, we do not find it necessary to remand the
case for further proceedings. Because the plaintiffs also
assert that striking the affidavit would have been a proper
remedy below and because we are obligated to review the
district judge’s summary-judgment decision de novo, Davis
v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 782
(7th Cir. 2004), we can ignore Politano’s affidavit and any
statements of material fact for which it was offered in sup-
port and proceed to the merits of the plaintiffs’ claims. Even
without Politano’s affidavit testimony, which established only
a narrow set of facts with regard to Rydel’s § 1692e claim,
we believe the district court properly granted summary
judgment in favor of the defendants.
B. Gutierrez’s and Rydel’s § 1692j Claim Against
AT&T Broadband, LLC
Section 1692j(a) of the FDCPA provides:
It is unlawful to design, compile, and furnish any form
knowing that such form would be used to create the
false belief in a consumer that a person other than the
creditor of such consumer is participating in the col-
lection of or in an attempt to collect a debt such con-
sumer allegedly owes such creditor, when in fact such
person is not so participating.
The plaintiffs claim here that Corporate Broadband de-
signed, compiled and furnished billing statements, a certain
notice, and collection letters knowing that the documents
would make the plaintiffs falsely believe that it, rather than
Chicago Cable, was attempting to collect their debts.
12 No. 03-3484
The purpose of § 1692j is to prohibit “flat-rating.” See
White v. Goodman, 200 F.3d 1016, 1018 (7th Cir. 2000).
“The classic ‘flat-rater’ effectively sells his letterhead to the
creditor, often in exchange for a per-letter fee, so that the
creditor can prepare its own delinquency letters on that
letterhead. Use of a third party’s letterhead gives the
delinquency letters added intimidation value, as it suggests
that a collection agency or some other party is now on the
debtor’s back.” Nielsen v. Dickerson, 307 F.3d 623, 633 (7th
Cir. 2002) (internal citations omitted). Plaintiffs do not con-
tend Corporate Broadband engaged in flat-rating. Instead,
they urge us to apply § 1692j to thwart the kind of deceit
they say Corporate Broadband perpetrated in allowing its
address and a variation of its name to appear on at least
three types of documents arguably used in Chicago Cable’s
debt collection process—the monthly bills sent by Chicago
Cable, a document titled “Important Notices to Our
Customers,” and the collection letters sent by CPA.4
4
We note that the parties dispute what documents this court
should consider when deciding if Corporate Broadband designed,
compiled, and furnished “any form” intending to deceive the plaintiffs
into thinking some entity other than Chicago Cable was attempt-
ing to collect their debt. See 15 U.S.C. § 1692j(a). Corporate
Broadband argues, for various reasons, that we should limit our
inquiry to the debt collection letters sent by the third-party debt
collector, CPA. The plaintiffs state that we should consider the
third-party debt collection letters, as well as monthly bills sent
prior to the plaintiffs being turned over to CPA, and the document
titled “Important Notices to Our Customers.” Ultimately, we need
not decide the scope of the term “any forms” for the purpose of a
§ 1692j inquiry, since there is no evidence that Corporate Broad-
band designed, compiled and furnished any of the documents at
issue here or did so with the intent to deceive the plaintiffs.
No. 03-3484 13
1. The Monthly Bills
For Corporate Broadband to have violated § 1692j, it must
have “design[ed], compil[ed], and furnish[ed]” the allegedly
deceptive forms. 15 U.S.C. § 1692j(a) (emphasis added); see
also Laubach v. Arrow Serv. Bur., Inc., 987 F. Supp. 625,
630 (N.D. Ill. 1997) (noting that the conjunction “and”
indicates that all three are required as elements of a
§ 1692j offense). The only evidence proffered by plaintiffs
that Corporate Broadband designed, compiled, and furnished
the plaintiffs’ monthly bills is the address contained on the
detachable payment coupon included with the bill, and, in
the case of Gutierrez, the name of the payee.
Rydel’s payment coupons directed him to make his checks
payable to “AT&T Cable Services” and to send them to
“AT&T Cable Services” at a Denver, Colorado post office
box. After being notified of the name change from “AT&T
Cable Services” to “AT&T Broadband,” Gutierrez’s payment
coupon directed her to make her checks payable to “AT&T
Broadband” (not AT&T Broadband, LLC) and to send them
to “AT&T Broadband” (not AT&T Broadband, LLC) at the
same Denver, Colorado post office box listed on Rydel’s
payment coupons. It is undisputed that Corporate Broadband
receives mail at the post office box listed on the bills. How-
ever, it is also undisputed that Chicago Cable’s billing sys-
tem generates the information contained on cable subscrib-
ers’ bills and that Chicago Cable sends those bills to its cus-
tomers.
The plaintiffs request that we infer that Corporate
Broadband “permitted” Chicago Cable to use its address on
the bills (and in the case of Gutierrez, permitted the use of
an abbreviated version of its name, “AT&T Broadband”).
From this premise, the plaintiffs argue that permitting the
use of its address (and, in the case of Gutierrez, its abbre-
viated name) meets § 1692j’s requirement that Corporate
Broadband “design, compile, and furnish” the allegedly decep-
14 No. 03-3484
tive form. They further allege that the plaintiffs were deceived
by the bills into believing a third party—Corporate
Broadband—was involved in the collection of their debt.
Although the record is far from clear, we will assume that
the Denver address appears on the bills because Corporate
Broadband “permitted” its use by Chicago Cable, and we
will further assume that, to the extent the words “AT&T
Broadband” appear in conjunction with the Denver address
on Gutierrez’s bills, Corporate Broadband intended it to
represent an abbreviated version of its name and also per-
mitted its use. However, “permitting” the use of a post office
box not obviously associated with Corporate Broadband
in Rydel’s case (Corporate Broadband’s name appears no-
where on the bill, and his bills directed payment to “AT&T
Cable Services”) surely does not amount to “designing,
compiling, and furnishing” the bill, as is required under the
Act. Rather, the undisputed evidence establishes that
Chicago Cable designed, compiled, and furnished the bills
to its customers. And, even though Gutierrez’s bills con-
tained both the Denver address and the payee “AT&T
Broadband,” plaintiffs present no case law that would sup-
port a finding that permitting two such pieces of informa-
tion to appear on a bill designed, compiled, and furnished
by the creditor amounts to a violation of § 1692j.
Moreover, if the primary purpose behind § 1692j is to pro-
tect consumers from believing that their debt has been
turned over to some other entity as a means of intimidating
them into paying, see White, 200 F.3d at 1018, the billing
practice criticized here is not the kind of behavior the law
was meant to discourage. Even though their bills directed
payment to an unfamiliar address, the bills listed the
payees as “AT&T Cable Services” or “AT&T Broadband” and
were printed on paper bearing the blue globe logo appearing
next to the familiar trademark “AT&T.” The bills were
consistent with the plaintiffs’ understanding of the identity
of their local cable service provider—both Gutierrez and
No. 03-3484 15
Rydel ordered cable in person from an individual they
believed represented AT&T, and they both signed work
orders bearing the AT&T logo and the name “AT&T Cable
Services.” Both admit that the name “AT&T Cable Services”
was later changed to “AT&T Broadband” to reflect broader
services, including Internet access. The bills, referencing
the only entities with which they dealt throughout their
cable acquisition, could not have deceived them into
believing a third party—Corporate Broadband— was
attempting to collect their debt, as they claim.
Put differently, where, as here, the plaintiffs’ monthly
bills provided consistent information both before and after
the plaintiffs fell into arrears, it makes no sense to assert
that a post office box and/or a name considered benign prior
to the billing dispute takes on new meaning after the
dispute; that the new meaning to be imputed is that a third
party has been interjected into the process where none was
suspected before; and that the plaintiffs’ wills were over-
borne by such a revelation. See Nielson, 307 F.3d at 633(noting that § 1692j is designed to thwart debtor intimida-
tion); White, 200 F.3d at 1018 (noting that Congress’s con-
cern in enacting § 1692j was to prevent deception inducing
debtors to abandon legitimate defenses). Indeed, there is no
evidence of any intimidation occurring here—Rydel at-
tached no significance to the Denver, Colorado address on
his bill when questioned about it during his deposition, the
address wasn’t even discussed in Gutierrez’s deposition, and
both plaintiffs admit that they believed they were dealing
with AT&T throughout the events leading to this lawsuit.
Thus, even if we decide, which we do not, that Corporate
Broadband designed, compiled, and furnished the bills, no
rational trier of fact could find that Corporate Broadband
did so knowing that the bills would be used to deceive
plaintiffs into believing that another entity, and not their
cable service provider, was attempting to collect their debt,
as required by the plain language of the Act. See 15 U.S.C.
§ 1692j.
16 No. 03-3484
2. Customer Notice
The second document that allegedly draws Corporate
Broadband under § 1692j is titled “Important Notices to
Our Customers.” Although the document itself appears in
the record, there is no corresponding record support for the
proposition that the plaintiffs actually received or saw the
document prior to the initiation of the lawsuit, or that the
document was designed, compiled, and furnished by
Corporate Broadband.
Plaintiffs direct us to certain admissions by Corporate
Broadband in support of such propositions, but those dis-
covery responses only admit that certain information con-
tained in the notice is accurate, and then go on to state that
Corporate Broadband is unclear where plaintiffs obtained
a copy of the notice and nowhere admits any involvement in
the production of it. Plaintiffs’ bald allegations that the
notice was materially misleading, when they provide no
affidavit or other testimony that they even received or re-
lied on the document during their billing dispute, cannot
create an issue of fact as to the deceptive nature of the
document. Nor does the simple existence of the document,
without more, support an inference that Corporate Broadband
designed, compiled, and furnished the notice knowing that
it would deceive the plaintiffs.
3. Third-party Collection Letters
Finally, plaintiffs point to the collection letters sent to
them by the third-party debt collector, CPA. They again al-
lege that it was Corporate Broadband who actually de-
signed, compiled, and furnished the letters because they
refer to “AT&T Broadband” as the plaintiffs’ cable service
provider and creditor and provide a Denver, Colorado address.
According to the copies of the letters in the record, Rydel
received two collection letters from CPA. Only the second
No. 03-3484 17
refers to “AT&T Broadband” as his creditor—the other re-
fers to “AT&T Cable Services.” Despite the difference in
payee, both request, in the detachable payment coupon
appearing at the bottom of the letter, that payment be sent
to the same address—though not the Denver, Colorado post
office box appearing on the payment coupon attached to the
bills. The CPA letters request payment be sent to a Chicago,
Illinois street address. Oddly enough, the one letter sent by
CPA to Gutierrez refers to “AT&T Broadband” in the body
of the letter, but the payment coupon requests remittance
to “AT&T” and directs payment be sent to “AT&T Cable
Services” at the Denver, Colorado post office box appearing
on her bills.
As with the bills, the information contained in CPA’s let-
ters—directing payment to “AT&T Cable Services” or
“AT&T Broadband” at a local Chicago address in Rydel’s
case or to “AT&T Cable Services” at the Denver, Colorado
address in Gutierrez’s case—does not remotely imply that
Corporate Broadband designed, compiled, and furnished the
letters or result in confusion that Corporate Broadband is
actually attempting to collect the debt. Second, and more
importantly, it is undisputed that CPA formulated the col-
lection letters with the advice of its counsel and sent them
to the plaintiffs. Though Corporate Broadband does admit
that it reviewed some of the form letters sent by CPA (not
necessarily the particular form letters sent to plaintiffs),
simply reviewing such documents does not trigger liability
under § 1692j.
For all of the above reasons, the district court properly
granted summary judgment in favor of Corporate Broad-
band.
C. Rydel’s § 1692e Claim Against Communications
and Cable of Chicago, Inc.
Rydel alleges that Chicago Cable violated § 1692e, which
provides:
18 No. 03-3484
A debt collector may not use any false, deceptive, or
misleading representation or means in connection with
the collection of any debt. Without limiting the general
application of the foregoing, the following conduct is a
violation of this section:
***
(10 ) The use of any false representation or deceptive
means to collect or attempt to collect any debt or to
obtain information concerning a consumer.
***
(14) The use of any business, company, or organization
name other than the true name of the debt collector’s
business company or organization.
Rydel claims that Chicago Cable violated this provision of
the FDCPA when it held itself out as “AT&T Cable Services”
or “AT&T Broadband” during its relationship with Rydel,
thus deceptively using a name other than its true name.5
For Chicago Cable to be liable under § 1692e, though, it
must be a “debt collector” as defined by the statute. Rydel
does not dispute that Chicago Cable was the franchisee that
provided his cable service and that any debt he owed, he
owed to Chicago Cable. Typically, Chicago Cable would be
considered a “creditor” for FDCPA purposes, and not a debt
collector. See 15 U.S.C. § 1692a(4) (“The term ‘creditor’
means any person who offers or extends credit creating a
debt or to whom a debt is owed . . . .”). Yet, Rydel argues
that Chicago Cable falls into the “false-name” exception
listed in § 1692a(6): “[T]he term [‘debt collector’] includes
any creditor who, in the process of collecting his own debts,
5
We note that only the last written communication received by
Rydel—the second collection letter sent by CPA—referred to
Rydel’s creditor as “AT&T Broadband,” not “AT&T Cable Services.”
No. 03-3484 19
uses any name other than his own which would indicate
that a third person is collecting or attempting to collect
such debts.” Where § 1692j prohibits third parties from
peddling their influence to creditors through “flat-rating,”
§ 1692a(6) is the other side of the coin, prohibiting creditors
from using the materials provided by flat-raters to intimi-
date their debtors into paying. See White, 200 F.3d at 1018.
Our task, then, is to first determine whether Chicago
Cable 1) in the process of collecting its own debts, 2) used a
name other than its own, 3) which would indicate that a
third party was attempting to collect Rydel’s debts. See
§ 1692a(6). If Chicago Cable does not fall into this excep-
tion, it cannot be liable under § 1692e as a debt collector.
Rydel alleges that Chicago Cable used a false name in two
phases of the debt collection process: first, while attempting
to collect on Rydel’s past-due account in-house and second,
after the debt had been referred to CPA for processing. We
can easily dispense with any claim that Chicago Cable’s
actions after Rydel’s account had been referred to CPA for
collection qualifies it for the § 1692a(6) exception. At that
point, Chicago Cable was no longer in the process of
collecting its own debts; that work was the responsibility of
CPA, an undisputed debt collector. See 15 U.S.C. § 1692a(6).
Because Chicago Cable was not in the process of collecting
its own debts during the second phase of the collection
process involving the third-party debt collector CPA,
Chicago Cable does not qualify as a debt collector under
§ 1692a(6) and cannot be held liable under § 1692e for any
representations made in the letters sent by CPA.
As to the first phase of the collection process, Rydel argues
that Chicago Cable, falsely representing itself as “AT&T
Cable Services,” attempted to prompt him to pay his debts
through sending monthly service bills, which listed his ac-
cumulating arrearages. In that case, Chicago Cable would
be in the process of collecting its own debts, meeting prong
one of the exception.
20 No. 03-3484
Whether the name “AT&T Cable Services” is a name other
than Chicago Cable’s own, as required in prong two, is an
open question.6 What is undisputed is that Chicago Cable
represented itself as “AT&T Cable Services” throughout its
own attempts to collect Rydel’s debt, never once represent-
ing itself as Chicago Cable or anything other than “AT&T
Cable Services.” What is also undisputed is that Chicago
Cable’s holding itself out as “AT&T Cable Services” on its
bills was consistent with every other contact Rydel had with
Chicago Cable. For example, when Rydel signed up for cable
services, he did so on an “AT&T Cable Services” purchase
order with a service representative that he understood to be
from AT&T. After his cable was disconnected for non-
payment, he received telephone calls from individuals
representing AT&T Cable Services.
Regardless of whether Chicago Cable was entitled to rep-
resent itself as “AT&T Cable Services,” the name “AT&T
Cable Services” on Rydel’s bills could not have left Rydel, or
any unsophisticated consumer, with the impression that a
third party was involved in the debt collection process.
Indeed, “AT&T Cable Services” was the only party of whom
he was aware and was the entity to which he believed he
owed the debt. It would have created more confusion had
Chicago Cable, once Rydel fell into arrears, started listing
itself on his cable bills as his creditor instead of the name
in which all other business had been transacted. See Maguire
v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.
1998) (noting that to avoid liability under the false-name
exception, “a creditor need not use its full business name or
its name of incorporation . . ., it should use the name under
which it usually transacts business, or a commonly-used
6
Again, Politano’s affidavit was offered to explain how Chicago
Cable came to use the brand names “AT&T Cable Services” and
“AT&T Broadband,” but we are bound to disregard this informa-
tion as decided above in Section A. 3.
No. 03-3484 21
acronym, or any name that it has used for the inception of the
credit relation.”) (internal citations and quotations
omitted).7 Because Chicago Cable’s consistent use of the
name “AT&T Cable Services” on the bills received by Rydel
could not have indicated that a third party was attempting
to collect his debts, Chicago Cable does not fall under prong
three of the § 1692a(6) exception and was not a “debt col-
lector” subject to liability under § 1692e.
Rydel argues vigorously that because Chicago Cable failed
to register “AT&T Cable Services” or “AT&T Broadband” as
assumed names as required by Illinois law and failed to
register “AT&T Broadband” as a service mark until after
this litigation was initiated, it was using those names il-
legally. Because the names were illegal, Rydel claims that
Chicago Cable’s use of those names in its debt collection
contacts with him was a per se violation of § 1692e. Rydel
further argues that a rule allowing an illegal name to be
used in debt collection, even if the name has been used by
the creditor since the inception of its relationship with the
debtor, creates a bad result, when, as here, because of the
illegal name, the debtor then has trouble identifying his
true creditor.
Without passing on whether Chicago Cable’s use of such
names was actually illegal, we cannot accept either argu-
ment here (although Rydel’s latter argument attracts some
sympathy, especially when a corporation’s structure is as
labyrinthine as AT&T Corp.’s). This is because the FDCPA’s
focus is not on whether the name used by the creditor is
permitted by law, but on whether the name used results in
the debtor’s deception in terms of what entity is trying to
7
Plaintiff Gutierrez expressed it best in her deposition. When
asked if she ever saw Chicago Cable referenced in the collection
letters she received from CPA, she responded: “No, not that I re-
call because then I would have been like: Who are these people?”
22 No. 03-3484
collect his debt. Again, for a creditor to be liable under
§ 1692e, its use of a name other than its own must “indicate
that a third person is collecting or attempting to collect” the
consumer’s debt. 15 U.S.C. § 1692a(6). In this case Chicago
Cable consistently represented itself as “AT&T Cable
Services” throughout its dealings with Rydel; no deception
as to what entity was trying to collect his debt occurred.
Thus, summary judgment was properly granted on Rydel’s
§ 1692e claim.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of AT&T Broadband,
LLC and Communications and Cable of Chicago, Inc.
DIANE P. WOOD, Circuit Judge, dissenting. While it is
entirely possible that Francis Gutierrez and Joseph Rydel
may ultimately lose in their effort to prove that the defen-
dants committed violations of the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692 et seq. (FDCPA), in my
opinion there are disputed issues of material fact that ren-
der summary judgment in favor of the defendants inappro-
priate at this time. This is true even taking the record as
my colleagues do. Unlike them, however, I would find that
the district court abused its discretion in refusing to permit
the plaintiffs to conduct further discovery when AT&T
pulled key affidavits out of its hat at the last minute. In-
deed, throughout the pretrial proceedings, AT&T’s approach
to the case was deplorable. It played a shell game with its
various corporate affiliates, forcing the plaintiffs to guess
No. 03-3484 23
which entity was doing what at each moment. To this day,
I am not sure myself. This record contains no answers to
important questions such as what type of entity Communi-
cations and Cable of Chicago, Inc. (CCC) is; how is it related
to the other AT&T corporate entities at issue here; and
where did it derive its authority to use the AT&T name and
logo, in combination with the word “Broadband.” Moreover,
AT&T’s conduct during discovery bordered on the
sanctionable, and at the very least, should not have been
allowed to stand uncorrected. I would remand this case for
further proceedings.
The reason why Rydel named AT&T Broadband, LLC as
the defendant in his state court action was straightforward:
this was the company named on his bills, and this was the
address the entity that he thought his creditor used. It is
preposterous, particularly for purposes of a remedial statute
like the FDCPA, to think that an ordinary consumer would
distinguish between a company named “AT&T Broadband”
and a company named “AT&T Broadband, LLC.” Rydel
learned, through AT&T’s motion to dismiss his complaint,
that an entirely different company had been providing his
services all along: CCC. At that point, both he and Gutierrez
brought this action in federal court, seeking redress for the
deception that had been practiced upon them. It is no small
detail that CCC and LaSalle Communications (LaSalle, which
apparently was Gutierrez’s “real” provider) had never sought
permission from the Secretary of State of Illinois to use an
assumed name. Had they done so, a conscientious lawyer
bringing a lawsuit would have discovered this essential fact
and would have been able to name the correct party right
away.
My colleagues take a “no harm, no foul” approach to the
problem of the mis-named service provider, but the FDCPA
does not. In addition to the harm to consumers like
Gutierrez and Rydel that they acknowledge—the assump-
tion that their creditor is the megalith AT&T, rather than
24 No. 03-3484
a local firm with presumptively less clout in the mar-
ket—there are other harms they suffered. Errors and
misunderstandings occur all the time in cable television
bills (and in most other bills as well). A consumer stands no
chance of ironing out those problems before they become
severe if she does not know to whom she must speak. If, as
it appears on this record, CCC and LaSalle are nothing
more than storefronts for AT&T, the problem is even worse.
The plaintiffs have now been told they must sue entities
that are empty vessels for the provision of AT&T’s cable
services. Had they known this at the outset, they may have
chosen a different method for receiving television services.
Satellite TV is one alternative option for consumers, and an
old-fashioned antenna for better “free” television reception
is another, even if one assumes that cable providers have
contractual exclusivity for cable service to defined areas
during the term of their contracts.
The majority concedes that this record is murky at best
with respect to the relationships among the various corp-
orate entities. See ante at 20-21. In my opinion, we cannot
decide this case without resolving that issue of fact. The
district court was of the same opinion: it listed as an “un-
contested” fact the proposition that CCC provided cable
service by using the “AT&T” trademark in connection with
the word “Broadband,” citing only the affidavit of Frank
Politano for support. Without Politano’s affidavit, which my
colleagues have properly refused to take into account, this
crucial assumption collapses. Jennifer Heller also testified
to matters that were in contest: she stated that the corpo-
rate owner of CCC and LaSalle, South Chicago Cable, Inc.,
“provided cable services branded as ‘AT&T’ in combination
with the terms ‘Broadband’ or ‘Cable Services’ in the
Chicago, Illinois area.” The plaintiffs take issue with that fact.
It is a critical dispute, since it goes to the question whether
the use of the name “AT&T Broadband” was authorized,
whether it was a trademark or a company name, and
No. 03-3484 25
whether anyone could be misled by the usage. Finally, Martha
Ryczek’s affidavit included information that contradicted
the testimony of Richard Baucom, yet plaintiffs never had
a chance to explore these inconsistencies. Ryczek provided the
indispensable support for the proposition that it was CCC
and LaSalle that handled Rydel’s and Gutierrez’s accounts, re-
spectively, not AT&T Broadband, as Baucom had indicated.
My colleagues appear to think that the fact that AT&T
was consistent in its misleading practices somehow helps its
case, but I see nothing in the FDCPA that provides an
excuse for a company that misleads everyone all the time.
They note that it is hard to say whether Chicago Cable’s use
of the various AT&T names was actually illegal, ante at 22
(implying that it well might be), and in that connection they
concede that Rydel’s position was difficult at best. With the
latter proposition, I agree wholeheartedly.
I would hold that the plaintiffs presented enough evidence
to create a genuine issue of material fact regarding the
question whether AT&T Broadband, LLC violated § 1692j
of the FDCPA by furnishing forms to CCC and LaSalle that
created the false belief in consumers that AT&T Broadband
was collecting its debts. I would also hold that they pre-
sented enough evidence to create a genuine issue of mate-
rial fact regarding the question whether CCC and LaSalle
were using a false name and thus was not entitled to the
protection of 15 U.S.C. § 1692(a)(6). CCC and LaSalle were
certainly using a name other than their own to collect debts,
and it is hard to see why that is not the same thing as a
“false” name. There is no competent evidence in the record to
show whether they were authorized to do so or not. Perhaps
this means that all companies can now use a “trademark”
name for purposes of debt collection, thereby concealing
from consumers the identity of their true creditors, but I do
not see how such a rule can be reconciled with the FDCPA.
Finally, I would hold that the district court abused its dis-
cretion in two ways in the discovery process. First, defen-
26 No. 03-3484
dants should have been sanctioned for designating Baucom
as the person to be deposed, pursuant to Fed. R. Civ. P.
30(b)(6). The district court, and my colleagues, wrongly put
the blame for Baucom on plaintiffs’ shoulders. The rule
expressly states that “the organization so named [in the
notice of deposition and subpoena] shall designate one or
more officers, directors, or managing agents, or other persons
who consent to testify on its behalf, and may set forth, for
each person designated, the matters on which the person
will testify.” Id. This means that it was AT&T’s job to
produce the right person in the first instance. AT&T was
wrong if it thought that discovery may properly be con-
ducted by first producing an uninformed higher manager,
and waiting for a motion for sanctions, and a hearing on the
motion, and then later finding another person, to be
followed by more objections and hearings, and so on. That
thinking is what has brought the American discovery
system into international disrepute. It was bad enough for
AT&T to do this, but when it then sprang the additional
affidavits of Heller, Politano, and Ryczek on the plaintiffs,
matters got even worse. Plaintiffs were entirely blind-sided
by this maneuver. No responsible lawyer would dream of
filing notices of depositions of every single individual in a
company who is mentioned in the principal deposition that
is being taken, nor should this court implicitly endorse this
kind of scorch-the-earth tactic. Thus, the district court’s sec-
ond error was to refuse to give the plaintiffs the time they
requested to follow up on these new people when their
affidavits surfaced and it became clear that they were really
the key corporate witnesses. Its failure to do so prevented
the plaintiffs from developing the kind of record that was
needed on summary judgment, allowed contested facts to
remain in the record, and distorted the ultimate decision.
For these reasons, I would reverse the grant of summary
judgment and remand for further proceedings. I respectfully
dissent.
No. 03-3484 27
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-1-04
28 No. 03-3484