Durkin, Michael v. Equifax Check Serv

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2289

MICHAEL DURKIN and LORETTA REED,

individually and on behalf of all

others similarly situated,

Plaintiffs-Appellants,

v.

EQUIFAX CHECK SERVICES, INC.,

a Delaware corporation,

Defendant-Appellee.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 00 C 4832—William J. Hibbler, Judge.

____________

ARGUED DECEMBER 2, 2004—DECIDED APRIL 18, 2005

____________

Before COFFEY, RIPPLE, and MANION, Circuit Judges.

1

MANION, Circuit Judge. Equifax Check Services, Inc., uses

a series of form letters to assist it in collecting debts from

dishonored checks. Equifax mailed such a series of letters to

1

Equifax is now known as Certegy Check Services, Inc.

2 No. 04-2289

Michael Durkin and, separately, to Loretta Reed. Believing

that certain letters were unacceptably confusing, Durkin,

and later Reed, sued Equifax under the Fair Debt Collection

Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq. The

district court consolidated the two actions into one. After

denying the plaintiffs summary judgment, the district court

granted Equifax’s motion to exclude the plaintiffs’ only

expert witness. This evidentiary ruling led Equifax to move

for summary judgment, arguing that the plaintiffs failed to

bring forth the necessary extrinsic evidence to support their

case. The district court agreed and granted Equifax sum-

mary judgment. The plaintiffs appealed. We affirm.

I.

Equifax, through its check authorization and warranty

service, protects retailers from being stuck with bad checks.

Under the service, when a customer presents a retailer with

a check, the retailer contacts Equifax, and Equifax deter-

mines whether it will stand behind the check and authorize

it or whether it will deny acceptance of the check. Equifax

makes this determination by reviewing its database of check

writing information. If Equifax authorizes a check that is

later dishonored, Equifax purchases the check from the

retailer at face value, making the retailer whole, and then

pursues collection efforts on its own behalf. Two retailers

who have subscribed to this service are Funco, Inc., (also

known as Funcoland) and Sears, Roebuck and Company.

On March 15, 2000, Equifax authorized a $217.45 check in

Michael Durkin’s name payable to Funco. Durkin’s checking

account, however, was closed, and the check was dishon-

ored. Funco submitted the dishonored check to Equifax, and

Equifax purchased the check at face value. Equifax then

began its collection efforts and sent Durkin a collection

No. 04-2289 3

letter on April 12, 2000. This initial letter contained a notice

of certain rights afforded to Durkin under the FDCPA.

Specifically, Equifax informed Durkin—in accordance with

15 U.S.C. § 1692g(a)-(b) and the corresponding safe-harbor

language drafted by this court in Bartlett v. Heibl, 128 F.3d

497, 501-02 (7th Cir. 1997)—that he had thirty days from his

receipt of the letter to dispute the validity of the debt and

that disputes should be in writing. This thirty-day period is

commonly called the “validation period,” and the afore-

mentioned notice is routinely referred to as the “validation

notice.” With no response from Durkin, Equifax sent a

second letter on April 24, 2000, and likewise a third letter on

May 8, 2000. Equifax also made a telephone call to Durkin

during this period. The second and third collection letters

did not discuss or reference the validation period, nor did

they reiterate any of the rights and procedures spelled out

in the initial letter’s validation notice. Each of the three

2

letters appears in the appendix to this opinion.

2

The upper right-hand corners of the first and second letters

(and presumably the third as well) declare: “Please read infor-

mation on reverse side.” The reverse side of each letter (including

the third) states, in its entirety: “EQUIFAX CHECK SERVICES

NOTICE[;] P.O. Box 30032[,] Tampa, Florida 33630-3032[;]

TELEPHONE MONITORING CONSENT[:] We randomly moni-

tor telephone conversations between callers and Equifax Check

Services employees, solely to evaluate our employees’ performance

and determine if additional employee training is necessary, and

for no other purpose. Your consent to this practice will be as-

sumed unless at the beginning of each call you instruct us not to

monitor the conversation, in which case such monitoring, if any,

will be discontinued for that call.” This information is not included

in the appendix to this opinion to avoid needless repetition. We

include it here to fully inform readers about the contents of each

(continued...)

4 No. 04-2289

Within a day or two of receiving the initial letter, Durkin

forwarded it to his attorney, an experienced FDCPA practi-

tioner. Durkin had retained the attorney to handle financial

and legal matters arising from the theft of his checkbook in

August 1999. The check presented to Funco in March 2000

was among the checks stolen. Durkin’s signature on the

Funco check was thus a forgery, and the checking account

had been closed at the time the forged check was written.

Durkin and his attorney were therefore aware of the problem

with the checking account when the initial letter arrived in

April. Nevertheless, the attorney did not lodge a written

dispute with Equifax until May 8, 2000, after the second

letter had arrived and the day that the third letter was sent.

Equifax, once informed about the forgery, ceased all collec-

tion activity and expunged Durkin’s check writing history

of any negative references regarding the Funco check. Three

months later, Durkin’s attorney filed a class action, with co-

counsel, under the FDCPA against Equifax in the Northern

District of Illinois using Durkin as the named plaintiff. The

complaint alleged FDCPA violations on behalf of individu-

als who had received the same form letters.

Separately, a different set of attorneys brought a virtually

identical FDCPA class action in the Northern District of

Illinois against Equifax with Loretta Reed as their lead

plaintiff. Reed wrote a $76.30 check to Sears. Equifax au-

thorized the check. Nonetheless, the check was dishonored

(...continued)

letter. Separately, we note that, in the appendix, the right-hand

margin of the first letter and the top margin of the third letter are

less than perfect, cutting off small amounts of information. The

copies used in the appendix were the best the record had to offer.

Nevertheless, the letters are clearly understandable, and the

imperfections are of no consequence.

No. 04-2289 5

(purportedly because of a bank error). Equifax bought the

check from Sears at face value and then sent Reed a collec-

tion letter that was similar to the initial letter sent to Durkin,

including the same safe-harbor validation notice. Later,

Equifax sent a second letter to Reed, which contained the

same form language used in the second letter to Durkin.

Reed purportedly received the same third letter as well, but

she has not produced that letter. Reed never disputed the

debt with Equifax; rather, she paid Equifax $76.30 plus a

$25.00 service charge.

The district court consolidated the Durkin and Reed

actions. The district court also granted class certification.

The class was composed of Illinois residents from whom

Equifax tried to collect a debt for a dishonored check written

to Funco or Sears during a certain period by using the same

or similar form letters received by Durkin and Reed. The

class numbered approximately 4,800 individuals.

The plaintiffs’ “amended consolidated class action com-

plaint” contained three counts, each alleging a different

FDCPA violation. Count one alleged that Equifax’s follow-

up form letters, i.e., the second and third letters, contra-

dicted and/or overshadowed the safe-harbor validation

notice in the initial letter, causing confusion in violation of

15 U.S.C. § 1692g. Count two claimed that a particular sen-

tence in the second letter describing Equifax’s procedures

for handling debts was misleading in violation of 15 U.S.C.

§ 1692e. Finally, count three alleged that Equifax’s follow-up

letters, which contained a toll-free number, violated 15

U.S.C. § 1692f by unfairly obscuring the requirement that

certain debt disputes be made in writing.

In arguing for summary judgment, the plaintiffs contended

that alleged FDCPA violations were apparent on the face of

the collection letters. The district court disagreed but ruled

that the case should go to trial since the plaintiffs procured

6 No. 04-2289

a linguistics expert, English professor Allan Metcalf, to

support their claims of confusion. However, Equifax later

filed a motion to bar Metcalf from testifying at trial, which

the district court granted. Consequently, the plaintiffs were

left with no evidence of confusion beyond the collection

letters themselves and their (Durkin, Reed, and one rank-

and-file class member) own assertions that the letters were

confusing. This development led Equifax to move for

3

summary judgment, arguing that the plaintiffs’ evidence

was insufficient to go to trial. The district court granted the

motion, ruling that the plaintiffs could not proceed to trial

relying solely on the letters and their own self-serving

testimony. The plaintiffs moved for reconsideration, but the

district court declined to alter its summary judgment ruling.

The plaintiffs appealed.

II.

The plaintiffs first maintain that the district court erred in

denying them summary judgment. They then alternatively

argue for the case to go to trial, attacking the subsequent

grant of summary judgment for Equifax. We review a dis-

trict court’s summary judgment decisions de novo, constru-

ing all facts in favor of the non-moving party. See Turner v.

J.V.D.B. & Assocs., Inc., 330 F.3d 991, 994 (7th Cir. 2003).

Summary judgment is appropriate when the “pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R.

3

The district court denied Equifax’s prior summary judgment

motion, declining, at that earlier juncture, to rule that the follow-

up letters did not violate the FDCPA as a matter of law.

No. 04-2289 7

Civ. P. 56(c). In short, “summary judgment is appropriate if,

on the record as a whole, a rational trier of fact could not

find for the non-moving party.” Turner, 330 F.3d at 995.

To determine if the collection letters at issue violate the

FDCPA as alleged by the plaintiffs, we examine the letters

from the standpoint of the so-called unsophisticated con-

sumer or debtor. See Fields v. Wilber Law Firm, P.C., 383 F.3d

562, 564-66 (7th Cir. 2004) (reviewing § 1692e, § 1692f, and

§ 1692g claims under unsophisticated consumer/debtor

standard). While the unsophisticated debtor is considered

“uninformed, naive, or trusting,” he is nonetheless deemed

to possess “rudimentary knowledge about the financial

world and is capable of making basic logical deductions and

inferences.” Id. (internal quotations omitted). Further, the

unsophisticated-debtor standard is an objective one and is

not the same as the rejected least-sophisticated-debtor

standard; accordingly, we disregard unrealistic, peculiar,

bizarre, and idiosyncratic interpretations of collection

letters. See Pettit v. Retrieval Masters Creditors Bureau, Inc., 211

F.3d 1057, 1060 (7th Cir. 2000); Gammon v. GC Servs., L.P., 27

F.3d 1254, 1257 (7th Cir. 1994). To that end, a mere claim of

confusion is not enough: a plaintiff must show that the

challenged “language of the letters unacceptably increases

the level of confusion.” Johnson v. Revenue Mgmt. Corp., 169

F.3d 1057, 1060 (7th Cir. 1999) (emphasis omitted). Under

this standard, a plaintiff’s anecdotal proclamations of being

confused will not suffice: a collection letter cannot be

confusing as a matter of law or fact “unless a significant

fraction of the population would be similarly misled.” Pettit,

211 F.3d at 1060; see also Taylor v. Cavalry Inv., L.L.C., 365

F.3d 572, 574-75 (7th Cir. 2004).

In some situations, when an FDCPA violation is so

“clearly” evident on the face of a collection letter, a court

may award summary judgment to the FDCPA plaintiff.

Avila v. Rubin, 84 F.3d 222, 226-27 (7th Cir. 1996); see also

8 No. 04-2289

Bartlett, 128 F.3d at 501-02; Chauncey v. JDR Recovery Corp.,

118 F.3d 516, 518-19 (7th Cir. 1997). On the other hand, mere

speculation that a collection letter confuses the unsophis-

ticated debtor is not enough for an FDCPA plaintiff to

survive an opposing debt collector’s summary judgment

motion. See Pettit, 211 F.3d at 1061; see also Jenkins v. Heintz,

124 F.3d 824, 831 (7th Cir. 1997). Thus, when the letter itself

does not plainly reveal that it would be confusing to a

significant fraction of the population, the plaintiff must

come forward with evidence beyond the letter and beyond

his own self-serving assertions that the letter is confusing in

order to create a genuine issue of material fact for trial. See

Taylor, 365 F.3d at 574-75; Chuway v. Nat’l Action Fin. Servs.,

362 F.3d 944, 948-49 (7th Cir. 2004); Pettit, 211 F.3d at 1061-

62; see also Walker v. Nat’l Recovery, Inc., 200 F.3d 500, 503-04

(7th Cir. 1999); Johnson, 169 F.3d at 1060-61. We have

repeatedly indicated that this need for additional evidence

(frequently referred to as “extrinsic evidence”) might be met

through the use of a carefully designed and conducted con-

sumer survey. See Taylor, 365 F.3d at 575; Chuway, 362 F.3d

at 948; Pettit, 211 F.3d at 1062; Walker, 200 F.3d at 501, 503;

Johnson, 169 F.3d at 1060-61. Also, we have suggested that

an appropriate expert witness might suffice. See Pettit, 211

F.3d at 1062.

In this analysis section, we first will address the plaintiffs’

arguments in favor of their motion for summary judgment.

We then will turn to the plaintiffs’ arguments against the

grant of summary judgment for Equifax.

A. Whether the plaintiffs are entitled to summary judg-

ment.

In arguing in favor of summary judgment, the plaintiffs

contend that the collection letters in question violate the

FDCPA as matter of law in that the alleged FDCPA vio-

No. 04-2289 9

lations are apparent on the face of the letters. With the

principles articulated above in mind, we turn to the three

alleged FDCPA violations.

1.

The FDCPA requires debt collectors to provide debtors

with a written validation notice, informing debtors of their

rights under § 1692g, including the right to dispute the

validity of the debt within thirty days of receiving the no-

4

tice. See Bartlett, 128 F.3d at 498-99. After this thirty-day

4

Subsections (a) and (b) of § 1692g provide:

(a) Notice of debt; contents. Within five days after the

initial communication with a consumer in connection with

the collection of any debt, a debt collector shall, unless the

following information is contained in the initial communica-

tion or the consumer has paid the debt, send the consumer a

written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty

days after receipt of the notice, disputes the validity of

the debt, or any portion thereof, the debt will be as-

sumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt

collector in writing within the thirty-day period that the

debt, or any portion thereof, is disputed, the debt col-

lector will obtain verification of the debt or a copy of a

judgment against the consumer and a copy of such veri-

fication or judgment will be mailed to the consumer by

the debt collector; and

(5) a statement that, upon the consumer’s written

request within the thirty-day period, the debt collector

(continued...)

10 No. 04-2289

validation period expires, the debt collector may assume

that the debt is valid. See id. at 498; 15 U.S.C. § 1692g(a)(3).

This validation period, however, is not a grace period: a

debt collector is “perfectly free” to demand payment and

pursue collection efforts, including an appropriate lawsuit

5

against the debtor, within the validation period. Bartlett,

128 F.3d at 500-01; see also Johnson, 169 F.3d at 1058-59. Thus,

during the validation period, the debtor’s right to dispute

coexists with the debt collector’s right to collect.

This coexistence has created a breeding ground for claims

of unsophisticated-debtor confusion because, on one hand,

the debt collector is telling the debtor that the debtor has the

right to dispute, and, on the other hand, the debt collector

is telling the debtor to pay. To reduce litigation over such

(...continued)

will provide the consumer with the name and address of

the original creditor, if different from the current credi-

tor.

(b) Disputed debts. If the consumer notifies the debt

collector in writing within the thirty-day period described in

subsection (a) that the debt, or any portion thereof, is dis-

puted, or that the consumer requests the name and address

of the original creditor, the debt collector shall cease col-

lection of the debt, or any disputed portion thereof, until the

debt collector obtains verification of the debt or a copy of a

judgment, or the name and address of the original creditor,

and a copy of such verification or judgment, or name and

address of the original creditor, is mailed to the consumer by

the debt collector.

15 U.S.C. § 1692g(a)-(b).

5

Of course, a debt collector must suspend its collection efforts if

the debtor disputes or otherwise contests the debt under

§ 1692g(a). See 15 U.S.C. § 1692g(b).

No. 04-2289 11

confusion claims, this court, in Bartlett, offered debt collec-

tors safe-harbor language for explaining the coexistence of

the right to dispute and the right to collect during the

validation period. 128 F.3d at 501-02; see also Miller v.

McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214

F.3d 872, 876 (7th Cir. 2000).

Here, Equifax took advantage of our Bartlett safe-harbor

6

language by including it in the initial collection letter.

Importantly, Equifax warned the plaintiffs, consistent with

the Bartlett language: “The law does not require us to wait

until the end of the 30-day period before taking action to

collect this debt.” Appendix 1. Equifax thus placed the

plaintiffs on notice that something such as the ensuing fol-

low-up letters could be on the way before the validation

period expired. Unsatisfied, the plaintiffs complain that

Equifax’s follow-up letters are confusing to unsophisticated

debtors because these letters contradict and/or overshadow

the validation notice in the initial letter. See Chauncey, 118

F.3d at 518. According to the plaintiffs, the follow-up letters

confuse because Equifax sent these letters within the valid-

ation period and the letters contained threatening demands

for immediate payment without any reminder about or

reiteration of the validation notice. This argument in favor

of summary judgment comes up short for three reasons.

First, the simple act of demanding payment in a collection

letter during the validation period does not automatically

create an unacceptable level of confusion so as to entitle the

plaintiffs to summary judgment. To be clear, the validation

period is not a grace period. See Bartlett, 128 F.3d at 500-01.

Nonetheless, the plaintiffs’ view is that virtually all de-

6

Equifax’s appellate counsel reported at oral argument that his

client utilizes our Bartlett safe-harbor language nationwide.

12 No. 04-2289

mands for payment during the validation period confuse

the unsophisticated debtor as a matter of law. (Presumably,

the plaintiffs would like no collection letters sent during the

validation period.) That view is unsupported by the FDCPA

and runs contrary to our case law. If, as this court held in

Bartlett, a debt collector can bring a lawsuit during the

validation period in an effort to collect a debt, see id., then

certainly a debt collector can send follow-up collection

letters (as well as place telephone calls) demanding payment

during the validation period. Demanding payment for an

uncontested, overdue debt is an entirely valid tool available

to debt collectors, see Johnson, 169 F.3d at 1059 (“[B]ona fide

debts that are overdue are, well, overdue, and payable

pronto.”), and the fact that Equifax demanded payment

during the validation period does not, in and of itself, justify

an award of summary judgment to the plaintiffs.

Second, pursuant to § 1692g(a), a debt collector must

include a validation notice in its initial communication to

the debtor or must send a validation notice within five days

of its initial communication (unless the debtor has paid the

debt by that juncture). See 15 U.S.C. § 1692g(a). Equifax

complied with the language in its initial letter. Once that

requirement is satisfied, § 1692g(a) does not mandate that

further validation notices be sent. Nonetheless, the plaintiffs

point out that a “debt collector may not overshadow or

contradict [the validation notice] with other messages

sent . . . within the validation period.” Chauncey, 118 F.3d at

518. To avoid such overshadowing or contradiction, the

plaintiffs argue that Equifax should have reiterated or

referred to the validation notice in its follow-up collection

letters. However, there is no need for such a blanket rule.

While some follow-up letters may certainly go over the line,

see, e.g., id. at 518-19, in general, not every follow-up letter

demanding payment during the validation period overshad-

No. 04-2289 13

ows or contradicts a validation notice; thus, not every follow-

up letter sent during the validation period must automati-

cally reiterate the safe-harbor validation notice, refer back to

that notice, or remind debtors about the validation period

and the time remaining in that period. Therefore, the mere

absence of any such reiterations and reminders in the

follow-up collection letters does not alone generate an

unacceptable level of confusion so as to warrant summary

judgment for the plaintiffs. Rather, the matter turns on

whether the specific text contains any impermissible

overshadowing or contradiction with respect to the valida-

tion notice. See id.

Third, the specific text in the follow-up letters at issue,

contrary to the plaintiffs’ assertions, does not “clearly” over-

shadow or contradict the validation notice from the initial

letter so as to entitle the plaintiffs to summary judgment.

Avila, 84 F.3d at 226-27; see also Chauncey, 118 F.3d at 518-19.

For instance, these letters do not indicate that the time for

disputing the debt has passed. Nor do they misrepresent or

cloud the amount of time remaining to dispute the debt. The

letters encourage debtors to pay their debts by informing

them of the possible negative consequences of failing to

7

pay. The letters simply do not contain any overt misinfor-

mation, apparent contradiction, or noticeable lack of clarity

concerning the validation period or the debtor’s rights under

§ 1692g. The letters, in short, do not intrinsically prove the

7

Not only does this encouragement promote payment of valid

debts, it also promotes disclosing genuine claims of invalid debts

(such as Durkin demonstrating the debt resulted from a forgery).

Undeniably, one way to encourage someone with a true dispute

to come forward and resolve that dispute is to inform him of the

possible negative consequences of his continued inaction.

Promoting final resolution of such matters, either way, is

inherently beneficial.

14 No. 04-2289

alleged FDCPA violation. Accordingly, summary judgment

is unavailable to the plaintiffs on this claim. (Whether this

claim should proceed to trial, however, is a separate matter

as discussed below.)

2.

The plaintiffs next attack a particular sentence in Equifax’s

second collection letter under § 1692e. Under this FDCPA

provision, a debt collector is subject to civil liability if it

“use[s] any false, deceptive, or misleading representation or

means in connection with the collection of any debt.” 15

U.S.C. § 1692e. The challenged sentence reads as follows:

“Should you fail to pay for this dishonored check or contact

this office to make arrangements, steps will be taken to deter-

mine if your check will be assigned to an investigator or to a

collection agency.” Appendix 2 (emphasis added). The

plaintiffs assert that, as a matter of law, this sentence is

misleading and confusing to the unsophisticated consumer

in three respects. However, in construing all inferences in

favor of Equifax, as we must in this situation, see Kort v.

Diversified Collection Servs., Inc., 394 F.3d 530, 536 (7th Cir.

2005), we reject the plaintiffs’ arguments for summary judg-

ment.

The plaintiffs first maintain that the “investigator” in

question is not a private investigator but rather an in-house

investigator. However, although the investigator is internal,

the letter does not, contrary to the plaintiffs’ contention,

plainly suggest otherwise. It does not indicate that Equifax

may refer the matter to an investigator outside of Equifax;

it only indicates that Equifax may refer the matter to an

investigator, which is entirely true. Next, the plaintiffs com-

plain that, since Equifax is itself a collection agency, the

statement that the matter might be referred to a “collection

No. 04-2289 15

agency” deceptively implies that the alleged debt has not

yet been referred to a collection agency. Nevertheless, the

letter does not plainly suggest that Equifax is not a collec-

tion agency. Also, this statement is not misleading because,

as Equifax indicates, since it purchases dishonored checks

from vendors and collects the debts on behalf of itself, it

may assign such debts to another collection agency if its

own collection efforts prove unsuccessful. Finally, the

plaintiffs contest the portion of the sentence stating: “steps

will be taken to determine . . . .” The plaintiffs argue that no

steps are taken to determine anything; it is all done auto-

matically by computer. However, this statement is simply

not deceptive: whether debt information (i.e., the amount of

the debt and the amount of time the debt has gone unpaid) is

sorted and evaluated by a computer or by a person or

by some combination of the two, the assessment still com-

prises “steps” being “taken.” Therefore, contrary to the

plaintiffs’ contentions, the alleged violations are not so clear

as to permit a grant of summary judgment for the plaintiffs.

See Avila, 84 F.3d at 226-27.

3.

Lastly, the plaintiffs accuse Equifax of violating § 1692f.

Pursuant to this FDCPA section, a debt collector is subject

to civil liability, if it “use[s] unfair or unconscionable means

to collect or attempt to collect any debt.” 15 U.S.C. § 1692f.

The plaintiffs claim that Equifax unfairly obscured the “in-

writing” requirement for debt disputes brought under

8

§ 1692g because the follow-up letters, which included a toll-

free number, urge debtors to telephone Equifax. It is

undisputed that, by using our Bartlett safe-harbor language,

the initial letter, which also contained a toll-free number,

8

See supra footnote four.

16 No. 04-2289

properly informed debtors of § 1692g’s in-writing require-

ment. See 128 F.3d at 502. Nonetheless, the plaintiffs main-

tain that the second letter is unfair and confusing because,

in addition to the presence of a toll-free number, the letter

suggests that the debtor “contact this office.” Appendix 2.

Similarly, they contend that the third letter is unfair and

confusing because, along with the toll-free number, the let-

ter states: “You may reach our offices at the number below

if you wish to discuss this matter further.” Appendix 3. To

avoid this alleged unfairness and confusion, the plaintiffs

argue that Equifax should have reiterated the portion of the

safe-harbor notice explaining the in-writing requirement in

the follow-up collection letters.

However, neither follow-up letter plainly indicates that

disputes do not have to be in writing: contacting the office

to discuss the matter does not necessarily equate to tele-

phoning the office to raise a dispute. Further, in the second

letter, the verb “contact” does not exclusively mean “call”

or “telephone” in this context. One could understand the

word “contact” in this situation to mean communicating with

Equifax in writing. This understanding is bolstered by the

fact that Equifax included its mailing address in the second

letter as well as in the third letter. While the plaintiffs focus

on the toll-free number, they neglect to pay the same level

of attention to the inclusion of Equifax’s mailing address. In

short, the challenged portions of the follow-up letters do not

obviously nullify or undermine the initial letter’s explana-

tion of the in-writing requirement. Therefore, in construing

all inferences in favor of Equifax, the alleged unfairness and

confusion about the “in-writing” requirement in the follow-

up letters is not so clear as to justify the grant of summary

judgment to the plaintiffs. See Avila, 84 F.3d at 226-27.

Whether these claims should proceed to trial is, in this case,

a separate matter as discussed below.

No. 04-2289 17

B. Whether Equifax is entitled to summary judgment.

As stated above, mere speculation that a collection letter

confuses the unsophisticated debtor is not enough for an

FDCPA plaintiff to survive an opposing debt collector’s

summary judgment motion. See Pettit, 211 F.3d at 1061; see

also Jenkins, 124 F.3d at 831. Therefore, when the text of the

letter does not plainly reveal that it would be confusing to

a significant fraction of the population, the plaintiff must

come forward with extrinsic evidence, such as a consumer

survey, to create a genuine issue of material fact for trial. See

Taylor, 365 F.3d at 574-75; Chuway, 362 F.3d at 948-49; Pettit,

211 F.3d at 1061-62; see also Walker, 200 F.3d at 503-04;

Johnson, 169 F.3d at 1060-61.

In order to satisfy the need for extrinsic evidence in this

9

case, the plaintiffs elected not to conduct a survey but

instead secured a linguist to support their confusion claims

against Equifax. Nevertheless, the district court barred their

expert from testifying at trial, finding the expert’s testimony

irrelevant and unreliable under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). The plaintiffs, as a

result, were left with no evidence of confusion beyond the

follow-up letters themselves and their (Durkin, Reed, and

one rank-and-file class member) own affidavits claiming

that they found the letters to be confusing. The district court

ruled that this evidence was insufficient to create a triable

issue and thus granted Equifax summary judgment.

The plaintiffs attack this result on three levels. First, they

argue that the district court erred in excluding their expert.

Second, they contend that, even without their expert, they

presented sufficient evidence to proceed to trial. Third, they

9

When pressed at oral argument to explain why they did not

perform a survey, it was evident that the plaintiffs did not want

to invest the resources necessary for conducting a survey.

18 No. 04-2289

challenge the need for extrinsic evidence in certain FDCPA

situations, arguing that the extrinsic evidence requirement

conflicts with the unsophisticated-debtor standard. We will

address each argument in that order.

1.

Turning to the district court’s decision to bar the plaintiffs’

expert, English professor and linguist Allan Metcalf, our

review has two steps. We first review, de novo, “whether

the district court properly followed the framework set forth

in Daubert.” Ammons v. Aramark Unif. Servs., Inc., 368 F.3d

809, 816 (7th Cir. 2004) (internal quotation omitted). The

first step is satisfied here because, in accordance with the

10

Daubert framework, the district court measured both the

reliability and the relevance of Metcalf’s proffered opinion

testimony. See Ammons, 368 F.3d at 816 (“This framework

requires the district court to determine whether (1) the pro-

posed witness would testify to valid scientific, technical, or

other specialized knowledge and (2) his testimony will

assist the trier of fact.” (internal quotation omitted)); see also

Fed. R. Evid. 702.

Having determined that the district court properly applied

Daubert, we next review the district court’s decision to bar

10

The plaintiffs’ appellate brief contests the applicability of

Daubert, arguing that “Daubert’s criteria for evaluating scientific

evidence should not be applied to the opinions of a linguist.”

However, it is well-established that a court’s gatekeeping func-

tion under Daubert, which is intended to prevent irrelevant and

unreliable expert testimony from tainting a case, applies to all

expert testimony, not just testimony based on science. See United

States v. Conn, 297 F.3d 548, 555 (7th Cir. 2002) (citing Kumho Tire

Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999)).

No. 04-2289 19

an expert for an abuse of discretion. See Ammons, 368 F.3d at

816. Here, the district court excluded Metcalf’s testimony on

two grounds: irrelevant and unreliable. In arriving at this

decision, the district court scrutinized Metcalf’s affidavit

describing his proposed testimony. In the affidavit, Metcalf

concluded that, after reviewing the case law defining the

unsophisticated debtor, Equifax’s three collection letters

(including the Bartlett safe-harbor validation notice in the

initial letter) were difficult to read and were thus confusing

to the unsophisticated debtor.

Metcalf based his conclusion in part upon certain read-

ability tests. His test results showed that the letters were

difficult to read on account of their long sentences and big

words. The district court rejected the test results as irrele-

vant, holding: “Readability tests analyze the overall letter,

rather than the [specific] language [the plaintiffs] single out

as increasing their confusion. As such, those results are not

relevant here.” R.79 at 2. That ruling was not an abuse of

discretion. Metcalf’s reliance on the overall readability of

the letters is off the mark. The issue here is only whether the

specifically challenged aspects of the follow-up letters are

impermissibly confusing. See Johnson, 169 F.3d at 1060.

Metcalf’s test results are thus too broad for this context and,

as a result, this portion of his proposed testimony would not

assist the trier of fact.

After discussing his conclusions from the readability tests

in the affidavit, Metcalf separately continued on to discuss

some of the challenged aspects in the follow-up letters. This

latter portion of the affidavit thus does not suffer from the

same irrelevance problem as the earlier portion. However,

the district court determined that this latter portion—in

which Metcalf claimed that the plaintiffs’ assertions of confu-

sion were “neither bizarre or idiosyncratic”—was unreliable

for purposes of Daubert:

20 No. 04-2289

[A]though Dr. Metcalf avers that he reviewed the letters

and found them confusing, he fails to explain how he

reached that conclusion. The Court will not presume, as

[the plaintiffs] appear to suggest, that Dr. Metcalf is

qualified to offer such testimony simply because he is

an English professor and [a] linguist. . . . Because

Dr. Metcalf has not sufficiently articulated the manner

and method by which he determined the [challenged]

language was confusing, the Court finds his testimony

unreliable.

R.79 at 2. This assessment of Metcalf’s affidavit and pro-

posed testimony is fair. In the pertinent portion of the

affidavit, Metcalf recited the plaintiffs’ claims of confusion

and then simply endorsed those claims. Under Daubert and

11

Federal Rule of Evidence 702, “[a]n expert must offer good

reason to think that his approach produces an accurate es-

timate using professional methods, and this estimate must

be testable.” Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395

F.3d 416, 419 (7th Cir. 2005). Accordingly, the district court

did not abuse its discretion by excluding Metcalf’s untest-

able say-so. See id.

Lastly, the plaintiffs argue that, even if Metcalf’s opinion

is inadmissible as an expert opinion, it should still be ad-

mitted as the “opinion of an objective observer.” In support

11

Fed. R. Evid. 702: “If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may testify

thereto in the form of an opinion or otherwise, if (1) the testimony

is based upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the witness

has applied the principles and methods reliably to the facts of the

case.”

No. 04-2289 21

of this argument, the plaintiffs cite a sentence from Pettit v.

Retrieval Masters Creditors Bureau in which we said: “The

self-serving opinion of the plaintiff, clearly not an expert or

an objective observer, does not create a genuine issue for

trial.” 211 F.3d at 1062. The plaintiffs misinterpret this sen-

tence. The words “objective observer” in that sentence only

explain what the plaintiff in that case was not. More im-

portant, contrary to the plaintiffs’ interpretation, the opinion

of a single non-expert (i.e., lay) witness is not a sufficient

basis for showing that a significant fraction of the population

would agree with the plaintiffs’ claims of confusion. See

Taylor, 365 F.3d at 574-75. Certainly, when a multitude of lay

opinions about confusion are compiled in an appropriate

consumer survey, that survey may be helpful. See Taylor, 365

F.3d at 574-75; Chuway, 362 F.3d at 948; Walker, 200 F.3d at

501-04; Johnson, 169 F.3d at 1060-61. A solitary lay witness’s

opinion, however, does not cut it.

2.

Even with their expert barred, the plaintiffs maintain

that they presented sufficient evidence to survive summary

judgment and go to trial. Essentially, the plaintiffs are ar-

guing that extrinsic evidence is not needed in this case to cre-

ate a triable issue. To support this argument, they heavily

rely upon the following passage from our recent decision in

Chuway v. National Action Financial Services:

If it is apparent just from reading the letter that it is

unclear and the plaintiff testifies credibly that she was

indeed confused and that . . . she is representative of the

type of people who received that or a similar letter, no

further evidence is necessary to create a triable issue.

362 F.3d at 948 (citations omitted). The flaw, however, in the

plaintiffs’ argument is that—unlike the situation in Chuway

22 No. 04-2289

when the letter at issue was confusing to each panel

12

member —it is not apparent from just reading the follow-

up letters that they are unclear. Viewing the evidence in a

light most favorable to the plaintiffs, there is no obvious

contradiction or overshadowing or falsity or unfairness in

these letters as they allege. Therefore, this language from

Chuway is of no value to the plaintiffs. Rather, it is the next

sentence in the Chuway opinion that governs in this case:

But if it is unclear whether the letter would confuse in-

tended recipients of it, then to make out a prima facie

case the plaintiff has to go further and present evidence

(beyond her own say-so) of confusion, for example in

the form of a carefully designed and conducted con-

sumer survey.

Id.

In short, “[w]hile there may be some merit to” the plain-

tiffs’ claims that the follow-up letters are confusing, mis-

leading, and unfair, the merit of these claims is not ap-

parent, and the mere possibility of merit does not create a

triable issue. Pettit, 211 F.3d at 1061-62; see also Taylor, 365

F.3d at 574-75; Jenkins, 124 F.3d at 831. To proceed to trial,

the plaintiffs were thus required to submit evidence in addi-

tion to the letters and their affidavits. See Taylor, 365 F.3d at

574-75; Chuway, 362 F.3d at 948; Pettit, 211 F.3d at 1061-62; see

also Walker, 200 F.3d at 503-04; Johnson, 169 F.3d at 1060-61.

Despite our line of cases on this issue, they chose not to con-

duct a survey, and they also failed to bring forth a relevant

and reliable expert. See Taylor, 365 F.3d at 574-75; Chuway,

362 F.3d at 948; Pettit, 211 F.3d at 1061-62; Walker, 200 F.3d

12

Chuway, 362 F.3d at 948 (“the entire bench was confused about

the meaning of the letter until the defendant’s lawyer explained

it to us at the oral argument”).

No. 04-2289 23

at 501-04; Johnson, 169 F.3d at 1060-61. As a consequence, the

plaintiffs are in the same disadvantageous evidentiary

position as other plaintiffs that have gone before them: their

FDCPA claims against Equifax are supported by nothing

more than speculation and conjecture, which does not enable

them to survive summary judgment. See Taylor, 365 F.3d at

574-75; Pettit, 211 F.3d at 1061-62; see also Jenkins, 124 F.3d at

831.

3.

Finally, in a last-ditch effort to salvage their case, the

plaintiffs attack the extrinsic evidence requirement for cases,

such as theirs, in which the claims of confusion are not ap-

parent. The plaintiffs argue that the extrinsic evidence re-

quirement is inconsistent with the unsophisticated-debtor

standard because the unsophisticated debtor is a hypothetical

person whose perceptions cannot be surveyed.

The unsophisticated-debtor standard, however, is not as

indistinct as the plaintiffs believe. As stated above, the

unsophisticated debtor will not be deemed to be confused

“unless a significant fraction of the population would be

similarly misled.” Pettit, 211 F.3d at 1060; see also Taylor, 365

F.3d at 574-75. Presenting evidence to make such a showing

is the objective. Requiring extrinsic evidence in situations

such as this is not inconsistent with the unsophisticated-

debtor standard; rather, such evidence is an essential com-

ponent of the standard. It ensures that unrealistic, peculiar,

bizarre, and idiosyncratic interpretations of collection letters

do not prevail. See Pettit, 211 F.3d at 1060; Gammon, 27 F.3d

at 1257. In other words, it protects against the repudiated

least-sophisticated-debtor standard slipping in through the

back door:

24 No. 04-2289

Because we have rejected the “least sophisticated con-

sumer” approach, the plaintiff will have to show that a

significant fraction of the letter’s addressees were de-

ceived—for if showing a handful of misled debtors were

enough, we would as a practical matter be using the

“least sophisticated consumer” doctrine.

Gammon, 27 F.3d at 1260 (Easterbrook, J., concurring).

Extrinsic evidence, moreover, can actually come to the aid

of plaintiffs. For instance, in discussing why a district court

prematurely terminated a case, we observed in Johnson v.

Revenue Management Corporation:

Unsophisticated readers may require more explanation

than do federal judges; what seems pellucid to a judge,

a legally sophisticated reader, may be opaque to some-

one whose formal education ended after sixth grade. To

learn how an unsophisticated reader reacts to a letter,

the judge may need to receive evidence.

169 F.3d at 1060. Furthermore, the plaintiffs have not pointed

to any supervening developments that would necessitate

changing our course. See Debs v. N.E. Ill. Univ., 153 F.3d 390,

394 (7th Cir. 1998). For all of these reasons, the plaintiffs

have not offered a compelling reason to overturn our well-

reasoned precedent, see id., and we thus reject their challenge.

III.

The plaintiffs claim that two collection letters that fol-

lowed an initial letter containing a safe-harbor validation

notice are confusing, misleading, and unfair. The merits of

their claims, however, are not apparent just from a reading

of the follow-up letters, and they failed to bring forth admis-

sible extrinsic evidence to support their claims. Accordingly,

they cannot proceed to trial, and they are certainly not

No. 04-2289 25

entitled to summary judgment. The judgment of the district

court in favor of Equifax is therefore AFFIRMED.

26 No. 04-2289

Appendix 1: Equifax’s First Letter to Durkin

No. 04-2289 27

Appendix 2: Equifax’s Second Letter to Durkin

28 No. 04-2289

Appendix 3: Equifax’s Third Letter to Durkin

No. 04-2289 29

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-18-05