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