*1 supported finding ground finding that the tional for no herniations” bladder/bowel actually because the MRI minimally impacted characterized impairment Golem- findings probably as “a small central functioning, permitted the ALJ biewski’s right Ap- lumbosacral herniation.” Br. of ignore together. this evidence all Id. pellant at 22. It is not reasonable for an Finally, we with an additional “close[d] ALJ to find that a condition does not exist observation”, admonishing the con- ALJ to at all where the evidence establishes that aggregate of the “host sider it does exist if even it is “small.” The conditions,” urging of medical record in Golembiewski’s claim included assign Commissioner the matter opinions by numerous treating physicians Golembiewski, different ALJ. 322 F.3d at the MRIs established herniated or reject any by 918. We did not issue raised protruding finding discs. The ALJ’s plaintiff appeal adopt nor did we “no support herniations” has no any position by affirm taken the Commis- administrative record. He did not “have a exactly “strong sioner. This is lan- ground rational for thinking he had a ra- guage against government’s position” ground” tional to find no herniations nor opinion a merits which should establish did the Commissioner have such a rational justification in lack of substantial ground arguing support of the ALJ’s ALJ’s decision and the Commissioner’s decision. The district court’s decision con- Marcus, of that position. defense F.3d stitutes an abuse of discretion. 1038; Boundary at accord Friends Wa- III. Thomas, Conclusion 881, v.
ters Wilderness 53 F.3d (8th Cir.1995). We reverse the district court’s decision and remand with directions the court to case, Under the circumstances this requested by enter the fees Golembiewski. judge’s the district court decision was an abuse of discretion. opinion Our ReveRse And RemaND DIRECTIONS. With underlying merits claim made it clear that argument the Commissioner’s had no rea argument
sonable basis
law because her
upon
upon
based
facts not relied
Golembiewski,
the ALJ.
rational ground thinking he had a ra-
* Flaum, Judge Judges Chief Rovner and ation of this case. participate Williams did not in the consider- *4 (ar-
Lance A. Raphael, Stacy M. Bardo gued), Advocacy Center, Consumer Chica- IL, go, for Plaintiff-Appellant *5 Faith Gay (argued), Case, White & Mia- mi, FL, for Defendant-Apрellee EASTERBROOK, KANNE, Before and WOOD, DIANE P. Judges. Circuit KANNE, Judge. Circuit History I.
Francis Gutierrez and Joseph Rydel
both
contracted
cable television service
with an entity known to them only as
“AT&T Broadband.”1
Both disputed
charges
bills,
appeared
on their cable
both
pay,
refused to
and both accounts
were ultimately turned over to Credit Pro-
(“CPA”),
tection Association
a third-party
agency.
collections
The letters
re-
they
represented
ceived from CPA
that it was
parties
dispute
1. The
do not
that when Gutier-
access as well as cable television service
cable,
through
provider.
change
Rydel
appears
rez
and
first ordered
did so
place
to have taken
sometime in the fall of
through "AT&T Cable Services.” The work
Rydel signed up
April
for cable in
of
orders for cable installation that bear their
2000, and
of the
most
documents received
signatures display,
upper
left-hand cor-
pertinent
him
to this suit list "AT&T Cable
ner,
consisting
AT&T's familiar trademark
Gutierrez,
prоvider.
Services” as his
who
“AT&T,”
globe design
and the word
with
signed up
September
cable in
"AT&TCable
appearing
immediate-
mainly listing
received documents
"AT&T
ly
parties
below. The
dispute
also do not
provider.
Broadband” as her
For
and
ease
Cable
changed
"AT&T
Services” later
consistency,
provider
we refer
to the
name
“AT&T Broadband" to reflect that
throughout,
"AT&T
except
Broadband”
high-speed
could
significant
consumers
obtain
analysis.
Internet
where it becomes
to our
claim,
point
of their
support
In
“AT&T
on behalf
collecting debts
documents,
their bills
to, among other
Broadband.”
be
payment
that direct
letters
collection
Rydel,
to Gutierrez
Unknown
(not AT&T
“AT&T Broadband”
made
name of
not the
“AT&T
Denver,
LLC),
Colorado
Broadband,
at a
In-
creditor.
actual
their
entity or
real
re-
Broadband
Corporate
where
address
name used
their
stead,
the brand
it was
ad-
of the Denver
Because
mail.
ceives
LaSalle
creditors,
franchisees
cable
true
name
of the
“AT&T
the use
dress
Telecommunications,
and Communica-
Inc.
Broadband,”
argue that Cor-
(collective-
Inc.
Chicago,
tions and
en-
been the
must have
porate-Broadband
Cable”).
en-
Confusingly, an
“Chicago
ly,
and furnished
compiled
designed,
tity that
Broadband, LLC
AT&T
name
tity
with
fur-
They
collection letters.
the bills
Broadband” —no
(as
opposed
deliberately
the documents
allege that
ther
mat-
LLC)
complicating
And
exist.
does
thinking Corporate
them
deceived
and AT&T
further, Chicago Cable
ters
Broadband,
true
not their
creditor
corporations,
Broadband,
are sister
LLC
Cable,
to collect
umbrella
their
massive
under the
falling
that, the
problem
debts. The
their
Corp.
AT&T
parent,
mutual
led
Broadband
Corporate
urge,
court
a state
to file
Rydel decided
When
dealing with
they were
to believe
them
disputed
Illinois over
class action
AT&T, and not the
giant
communications
Broad-
against
he did so
charges,
Cable, in
at-
franchisee,
lowly
Broadband”), be-
band,
(“Corpоrate
LLC
their
paying
them into
to intimidate
tempt
Corporate
creditor.
it to
lieving
be
possible outstand-
bills above
moved to dismiss
com-
then
*6
ing debts.
it,
Rydel
that
claiming
sued
against
plaint
Rydel
(Gutierrez
join
It was then
entity.
does not
wrong
Rydel
the
Plaintiff
(the
alleged
“AT&T Broadband”
complaint)
also
learned
the
count of
this
Broadband,
name)
1692e,
LLC
§
Chicago
brand
violated
which
Cable
(the
purportedly
entity) were
corporate
for a
collector
debt
makes
unlawful
true
creditor
his
false,
rep-
not
same and
deceptive, misleading
or
use
Chicago
Cable.2
with
in connection
or means
resentations
argues
Rydel
any debt.
the collection of
Chicago Cable
revelation —that
This
of
the definition
Chicago
meets
his
and was
cable service
provided
be-
under
FDCPA
collector”
“debt
creditor,
Corporate Broadband—
true
not
collecting
own
cause,
of
his
“in the process
Fair
Debt
suit under
the instant
led to
any name
debts, [Chicago Cable] use[d]
(“FDCPA”), 15
Act
Practices
Collection
own
would indicate
than his
which
seq.
et
1692,
Gutierrez
§§
Both
U.S.C.
at-
collecting
or
person
a third
un-
Corporate Broadband
Rydel sued
15
to collect such debts.”
U.S.C.
tempting
“designing],
1692j
allegedly
der
1692a(6).
even
Rydel
asserts
furnishfing] any form
compiling],
represented itself
though Chicago Cable
used
form would be
knowing that such
Broad-
“AT&T
“AT&T Cable
in a
false
consumer
belief
create
him,
relationship with
throughout its
band”
partici-
the creditor
other than
person
”
to “AT&T
payment
requesting
....
the bills
... a debt
in the collection
pating
dispute remains
relating
billing
filed
argument, counsel for
defen-
oral
At
alive,
naming
wrong enti-
initially
despite
us,
from
without contradiction
assured
dants
Corporate
ty,
Broadband.
Rydel
matter
the state court
plaintiffs,
(a
offending
fairly
and the collection letter
affidavits
harsh
Cable Services”
reme-
listing
payee
dy),
Broadband”
plaintiffs’ request
“AT&T
deposi-
for more
use of a name other than
amounted to the
tions
as an
appeared
afterthought at the
own, indicating
Chicago
that a
Cable’s
reply
support
end of their
brief in
of their
(“AT&T
Cable Services” or
third
motion to strike. The motion nowhere
or, perhaps
even Cor-
mentioned Federal Rule of Civil Procedure
Broadband)
to col-
porate
56(f) (which specifically provides for re-
Again,
problem
lect his debts.
opening
discovery
in the midst of sum-
behavior, Rydel
Chicago
alleges,
Cable’s
mary judgment briefing), and was unsup-
power
tapping
relates to
its ported by
generally required
affidavits as
AT&T, producing
pressure
undue
parent,
56(f).
City
Rule
See
v.
Woods
Chica-
And,
him
pay
his bills.
because
(7th Cir.2000)
979,
(find-
go, 234 F.3d
“AT&T Cable Services”
and “AT&T ing
that failure
file an affidavit in sup-
not registered
Broadband” were
assumed
56(f)
port
justifies
of a Rule
motion alone
names of
Illinois
Cable under
law the district court’s
to deny
decision
service marks under
registered
discovery),
additional
approval
cited with
law, Rydel complains
federal
trademark
Bank
Corp.
First Nat’l
& Tr.
v. Am
identifying
no
that he had
means of
(7th
Corp.,
Eurocopter
judgment Corporate both request to remand this case additional Rydel Gutierrez and Cable. discovery, find no we reason disturb the timely appeal, and we affirm. district court’s decision to allow the three stand, depositions we which review for Analysis II. an abuse of discretion. See McLeod v. Heller, Ryczek, A. and Politano Affida- Inc., Transp., Arrow Marine 258 F.3d vits *7 (7th Cir.2001); Woods, 234 F.3d at Before merits of we turn the the 990. decision, district court’s we must first ad- plaintiffs’ complaint the that the dress dis- 1. Heller Affidavit in refusing trict court its discretion abused The district court refused to strike to strike three affidavits the defendants Jennifer Heller’s affidavit because the support proffered summary- in of their plaintiffs admittеd all material facts for judgment argue plaintiffs motion. The in which in support; the affidavit was cited the alternative if the district court thus, reasoned, the district court defen affidavits, unwilling strike the it dants’ on the affidavit reliance Heller did reopened discovery have for should prejudice plaintiffs. limited purpose allowing plaintiffs the depose opportunity to the three affiants. The counter that Heller’s affi- plaintiffs davit contained a statement with which It questionable plaintiffs’ whether the Yet, they agree. did not we observe that request half-hearted for additional discov- or ery rely upon did not cite to preserved appeal. below for defendants issue specific plaintiffs dispute in making fully-developed argument paragraph After support summary-judgment mo- requesting that district court strike the of their deposition the relevant testimo- reproduce used Rather, the defendants Heller’s tion. in Corp.’s ny outline AT&T full: solely to affidavit the time during period corporate structure Q: computer-set sets standards Who explain case and to this relevant sending your compa- from for a bill relationships among parent-subsidiary Association, ny to Credit Protection ¶¶ (R. 52, 6-9, at issue. various entities L.P.? 18.) particu- admitted these plaintiffs our Designated employees A: within ¶¶ (R. 59, 6-9,18.) lar facts. organization. evidence that district There is no Q: a designated would be such Who court, ruling on the defendants’ sum- your organization? employee within motion, on Heller’s relied mary-judgment A: Ryczek. A Martha propositions for the except affidavit Q: name, Spell please? her last (and it cited specifically which was R-y-c-z-e-k. A: argument). no have which the Q: is her title? What way preju- in no Because Heller’s affidavit oppose ability plaintiffs’ diced Manager. A: Credit Collections motion, summary-judgment defendants’ Q: where she work? And does properly the district court refused to Schaumburg. A: discovery to rеopen it allow strike Q: day-to-day op- And does she do Heller’s deposition. as it relates to collection of erations company? for your accounts Ryczek Affidavit “day-to-day operations.” A: Define agree with the district court We Q: collec- She’s one who oversees prior that the were on notice calls, making making phone tors discovery Ryczek, Martha the close of them in a certain sure do manager, collections had Cable’s way, making are certain letters pertinent to this matter and information out a certain manner and sent witness, despite fact potential was a frequency a certain so forth? listed in of the that she was not defen discovery responses or offered in dants’ A: It her purview. would be under 30(b)(6) response plaintiffs’ to the Rule directly. does not She do deposition notice. Because the Q: charge? But she’s the one opportunity discovery had a fair tо seek reports A: Yes. She to me. Ryczek filing prior from the deadline Q: you you Okay. reports She motions, summary-judgment the district in a *8 supervise only very—in a her did in court not abuse discretion refus like limited fashion? You don’t ing to her affidavit or allow strike addition over to see that she’s watch her discovery. al running things day-to-day in [sic] Baucom, desig- Richard the defendants’ basis? 30(b)(6) deponent, nated discussed Rule A: No. Ryczek job during responsibilities and her no, Q: No, incor- that’s correct or I’m deposition response ques- to detailed rect? plaintiffs’ tions counsel. Those No, A: that’s correct. questions quite clearly directed at were Q: Okay. This like hide seek. finding who as- is additional witnesses would actually peo- to plaintiffs discovery process. trying in the I’m find sist We
733
going
responsive
pie
through
who are
to be
mation relevant to this case
Bau-
com’s and Evans’s
my requests.
depositions.
(R.
(R.
118-19);
62,
Finally,
62,
although
way
no
Ex.12 at
see also
we
con
29-80)
mentioned,
done the defendants’
(Ryczek
provide
six
choice
Ex. 8 at
Baucom, a largely
witness,
unresponsive
days
deposition, by
after Baucom’s
Diane
30(b)(6)
their Rule
Evans,
deposition representa
representa-
debt collector CPA’s
tive,
also note
plaintiffs
we
that the
tive,
made a
Chicago-area
as CPA’s
collections
tactical
not
decision
to insist that the de
at AT&T
manager contact
produce
fendants
better witnesses after
whom
report.)
proved
Baucom
inadequate. Such a re
now that
did
argue
Plaintiffs
the above
very
quest
likely would have been viewed
put
Ryczek pos-
them on notice that
had it
favorably
prior
been made
to the
sessed relevant information about
discovery,
close of
possible
with
sanctions
Cable’s
and external
internal
collection
against
levied
for failing
defendants
processes,
she re-
reasoning
because
provide
appropriate
deponent
Baucom, Baucom
ported
possess
would
Yet,
first
plaintiffs
instance.
raised
Ryczek.
the same information as
But
their dissatisfaction with Baucom after the
testimony
Baucom’s and Evans’s
should
discovery,
close of
midst of
sum
Ryczek
have alerted the
mary-judgment briefing,
prior
and with
would have more and better information
witnesses,
knowledge
Ryc-
better
like
regard
to collections than
Bau-
would
zek,
judge
existed. The district
was not
Specifically,
testimony
com.
their
re-
required
belatedly punish the defen
vealed that
Ca-
Ryczek oversaw
by striking Ryczek’s
dants
affidavit or re
ble’s day-to-day
operation,
collections
discovery in
opening
such circumstances.
Baucom,
supervised
minimally
only
and See,
O’Neill,
Grayson
808,
e.g.,
v.
308 F.3d
client
was CPA’s direct
contact.3
(7th Cir.2002) (“Where
party’s
816
own
diligence
lack of
par
to blame
above,
Based on the
we cannot conclude
ty’s
failure
secure discoverable informa
that the district court abused its discretion
tion,
not an
deny
abuse of
discretion
allowing
affidavit
Al-
Ryczek’s
to stand.
—
56(f) motion.”),
denied,
a Rule
cert.
though the defendants did have an obli-
-,
155,
124
U.S.
S.Ct.
firm with proper remedy the case with Polita- have a below and agree cannot this was been obligated no. we are to review the because judge’s summary-judgment district deci- they had Poli- plaintiffs admit seen The novo, Corn-Way Transp. de v. sion Davis application a service mark tano’s name on (7th Inc., 776, 782 Express, Cent. 368 F.3d through their own Internet they uncovered Cir.2004), can ignore we Politano’s affida- and Patent search of the United States any and of material fact for vit statements website; it not a was Trademark Office’s it support pro- which was offered produced plaintiffs document plaintiffs’ ceed to the merits of the claims. That document showed defendants. Even without Politano’s affidavit testimo- registered as а “AT&T Broadband” only a ny, which established narrow set of Corp., mark of AT&T service claim, to'Rydel’s § regard facts with 1692e 6, filed application was December properly believe the district court we (three filing pres- months after summary granted judgment in favor lawsuit), attorney of rec- ent defendants. Politano. The asked ord was 30(b)(6) Baucom, the Rule des- defendants’ 1692j B. Gutierrez’s ignee, you “Do know Frank who Politano Against Broadband, Claim AT&T I not.” responded, is?” Baucom “No. do LLC out, Politano, parent, it works for the turns 1692j(a) Corp., copy- of the pro- AT&T trademark and Section FDCPA right His was offered to vides: counsel. affidavit Cable, how an AT&T
explain It design, compile, is unlawful to provide Corp. subsidiary, came to furnish form knowing such services under the brand name “AT&T form would be used to create the false Broadband.” person belief a consumer than the creditor of such consumer is do not that the service mark
We believe or in participating the сollection of deposition application and Baucom’s testi- attempt to collect a debt such consumer mony enough on put were creditor, allegedly owes such when in possessed notice that Politano information fact such not so participating. pertinent such that their claims request deposi- Corporate The claim here that expected would be might designed, compiled tion and fur- anticipate his affidavit statements, notice, billing support be offered in defendants’ nished certain motion. that the summary-judgment knowing No witness collection letters doc- possessed plaintiffs falsely indicated Politano information uments would make the it, Cable, pertinent em- than Chicago this matter or was even believe that rather time their ployed during relevant collect debts. period. purpose 1692j pro is to Goodman, “flat-rating.” believe that correct course would hibit See White v.
We (7th Cir.2000). disсovery reopen have been allow 200 F.3d “The Yet, effectively deposition. despite Politano’s the dis- classic ‘flat-rater’ sells his let creditor, judge’s misstep respect exchange trict to her terhead to the often issue, fee, analysis per-letter on this we do not find for a so the creditor can necessary to prepare delinquency remand the case for further its own letters proceedings. plaintiffs also Use of a third letter- party’s Because the letterhead. *10 gives delinquency Rydel’s payment added coupons head letters directed him to value, payable it that a make his checks to suggests intimidation as “AT&Ti Services” to send them agency party or some other to collection Denver, “AT&T Cable Services” at a Colo on the back.” v. now debtor’s Nielsen Cir.2002) post rado office box. Dickerson, 623, (7th being After notified 307 F.3d of change the name (internal omitted). from “AT&T Cable citations Plaintiffs do Broadband,” “AT&T Gutier contend en- Corporate Broadband payment coupon rez’s directed her to make Instead, urge in gaged flat-rating. us payable her checks to “AT&T Broadband” § apply 1692j thwart the kind of (not LLC) Broadband, AT&T and to send they say Corporate deceit Broadband (not them “AT&T allowing and a perpetrated address LLC) Broadband, Denver, at the same appear variation its name on at least post Colorado office box listed on types arguably three of documents used payment coupons. undisputed It is Chicago process— Cable’s debt collection Corporate Broadband receives mail at the Cable, by monthly Chicago bills a sent post box office listed on the bills. Howev “Important document titled to Our Notices er, undisputed it is also that Chicago Ca Customers,” and the collection sent letters billing system ble’s generates the informa CPA.4 by tion hills contained on cable subscribers’ Chicago Cable sends those bills to Monthly 1. The Bills its customers. For Corporate Broadband The plaintiffs request that we infer that 1692j, § have violated must have “de Corporate “permitted” Broadband compiled], and signed], furnish[ed]” (and Cable to use its address on the bills allegedly forms. 15 U.S.C. deceptive Gutierrez, permitted case the use of 1692j(a) added); (emphasis § see also name, an abbreviated version of its Inc., Bur., v. Serv. Laubach Arrow 987 Broadband”). premise, From this (N.D.Ill.1997) F.Supp. (noting plaintiffs argue permitting the use of conjunction “and” indicates that all (and, Gutierrez, its address the case of three are required as of a name) elements 1692j’s § its abbreviated meets re- offense). 1692j § only prof The evidence quirement Corporate Broadband “de- by plaintiffs that Corporate fered Broad sign, compile, allegedly and furnish” the designed, compiled, band and furnished deceptive They allege form. further plaintiffs’ monthly bills is the address were deceived the bills payment contained the detachable cou believing into party—Corporate third bill, and, included pon with the in the case Broadband—was involved collection Gutierrez, the name of the payee. of their debt. parties dispute 4. We note that third-party what docu- we should consider the debt col- letters, this monthly ments court consider when decid- should lection well bills sent ing Corporate designed, prior plaintiffs being if Broadband com- turned over to CPA, "any piled, intending "Important furnished form” the document titled No- thinking entity Ultimately, deceive Our some tices to Customers.” we need scope "any other than Cable was not decide the of the term forms” 1692j(a). purpose 1692j inquiry, collect their debt. See 15 U.S.C. for the since Corporate argues, Corporate rea- there no evidence various Broad- sons, designed, inquiry compiled we limit our to the should band and furnished third-party sent debt collection letters at or did so documents issue here with the collector, рlaintiffs. debt CPA. state intent to deceive the *11 736 an from cable clear, ordered Rydel from far record the
Although represented they believed address individual Denver the will assume we orders signed work AT&T, they both and Corporate because the bills on appears the name logo and AT&T by bearing the its use “permitted” Broadband that, admit to Both Services.” Cable assume “AT&T further Cable, will and we la- was Services” Broadband” “AT&T Cable “AT&T name the the words the extent re- to ad- Denver “AT&T Broadband” changed with the to conjunction ter appear Corporate services, Internet bills, including Gutierrez’s broader on flect dress only ab- an the represent bills, referencing toit The intended access. Broadband also and its name they throughout dealt version which breviated entities However, “permitting” de- not have its use. could acquisition, permitted their obviously not box party— office post a third believing the use a into them ceived Broadband Cоrporate to associated with Broadband —was Corporate name Broadband’s (Corporate Rydel’s case debt, they claim. collect their bill, and his bills on the nowhere appears here, the where, as differently, Put “AT&T Cable Ser- to payment directed consistent provided monthly bills plaintiffs’ “design- amount vices”) surely does after and both before information bill, furnishing” and compiling, ing, no arrears, it makes into fell Rather, Act. under the required office box post a sense assert that Chi- establishes evidence undisputed prior benign considered name and/or fur- compiled, designed, cago Cable meaning on new billing dispute takes And, customers. to its the bills nished meaning new dispute; after the contained bills though Gutierrez’s even has been party a third is that imputed be payee address the Denver both none process where into interjected no Broadband,” present before; the plain- and that suspected finding that support а would law that case a reve- such overborne wills tiffs’ were information pieces of such two permitting (not- Nielsen, F.3d at 633 307 See lation. compiled, designed, a bill on appear to thwart designed 1692j is § ing amounts the creditor furnished White, at intimidation); 200 F.3d debtor 1692j. §of violation concern Congress’s (noting behind purpose Moreover, primary if the deception 1692j prevent enacting from be- consumers 1692j protect is to de- legitimate to abandon inducing debtors turned has been their debt lieving that fenses). Indeed, is no evidence there a means entity as to some over at- Rydel occurring any intimidation here — White, see paying, intimidating them Denver, Colo- to the significance no tached billing criti- practice F.3d at questioned when on his bill address rado behavior kind of not the here is cized the address deposition, during his about Even discourage. law was meant depo- in Gutierrez’s even discussed wasn’t payment directed their bills though admit sition, and both address, pay- bills listed unfamiliar dealing with they were believed or “AT&T as “AT&T ees law- leading to this the events throughout paper printed were decide, do Thus, which we if even we suit. next logo appearing globe bearing the blue designed, not, Corporate “AT&T.” familiar trademark to the bills, ra- no furnished the compiled, plaintiffs’ consistent with bills were Corpo- find of fact could trier tional identity of their local understanding of knowing that so did and rate Broadband provider' Gutierrez cable service —both *12 actually used to deceive designed, compiled, bills would be and furnished entity, and believing they that another not the letters because refer “AT&T provider, attempt- plaintiffs’ their cable service Broadband” as cable service debt, required ing by to collect their provider and creditor provide a Den- See plain of the Act. language ver, U.S.C. Colorado address.
§ 1692j. According the copies of the letters in record, Rydel recеived two collection
2. Customer Notice letters from Only CPA. the second refers alleged The second document to “AT&T Broadband” as his creditor—the ly Corporate draws Broadband under other refers to “AT&T Cable Services.” § 1692j “Important is titled Notices Our Despite the difference in payee, both re- Although Customers.” the document itself quest, in the detachable payment coupon record, appears in the there is no corre appearing letter, at the bottom of the sponding support proposi record for the payment be sent the same address— tion that received plaintiffs actually or Denver, though post not the Colorado of- prior saw initiation the document to the of appearing fice box payment coupon lawsuit, or the document was de attached to the bills. CPA letters signed, by Corpo compiled, furnished request payment be a Chicago, sent rate Broadband. Illinois Oddly enough, street address. Plaintiffs direct us to certain admissions by one letter sent CPA to Gutierrez refers by support Corporate Broadband in body “AT&T in of the propositions, discovery such but those re- letter, payment but the coupon requests sponses only admit certain informa- remittance to “AT&T” directs pay- accurate, tion contained the notice ment be sent to “AT&T Cable Services” at go Corporate and then on to state that Denver, post ap- Colorado office box unclear Broadband is where ob- pearing on her bills. tained a copy the notice and nowhere bills, any production admits involvement in the As with the the information con- of it. bald allegations letters—directing pay- Plaintiffs’ tained CPA’s materially misleading, notice was when ment to or “AT&T they provide no affidavit or other testimo- a local Chicago Broadband” at address in ny received or relied on even case or “AT&T Cable Sеrvices” during dispute, their billing document can- Denver, at the Colorado address Gutier- not create an the decep- issue fact as to remotely imply rez’s case—does not tive nature of the document. Nor does the Corporate designed, compiled, Broadband document, simple existence of the without or result in con- furnished letters more, support Corporate an inference that Corporate fusion that Broadband is actual- designed, compiled, and fur- Second, ly collect the debt. knowing nished the notice it would undisputed importantly, more plaintiffs. deceive the CPA formulated the collection letters with the advice of its counsel and sent them to Third-party Collection Letters plaintiffs. Though Broad- Corporate band that it some does admit reviewed Finally, point the col (not the form letters sent neces- lection letters sent to them the third- CPA collector, They sarily form sent to party again particular debt CPA. al letters lege Corporate plaintiffs), simply reviewing that it such docu- Broadband who
73 8 a “creditor” for liability would be considered under trigger ments does and not debt collector. purposes, FDCPA 1692j. 1692a(4) (“The term ‘cred- See U.S.C. reasons, the district all of the above For person who offers ex- itor’ means summary judgment granted properly court creating a debt or to whom tends credit Corporate Broadband. favor *13 ”). Yet, Rydel argues owed .... debt is into the “false- Chicago Cable falls Against Rydel’s Com- § 1692e Claim C. 1692a(6): § exception name” listed Chicago, of and Cable munications any collector’] includes “[T]he [‘debt term Inc. who, collecting the of process creditor violat- Chicago Cable Rydel alleges debts, other than any his own uses name 1692e, provides: §ed which a third his own which would indicate false, any may not use A debt collector attempting or to collect collecting is misleading representation deceptive, or 1692j § prohibits such debts.” Where the collec- or means in connection with peddling their influence parties third from the limiting any of debt. Without tion “flat-rating,” through creditors foregoing, of general application 1692a(6) coin, § side of the the other a this following violation of conduct using from mate- prohibiting creditors section: provided by flat-raters to intimidate rials White, paying. See their debtors F.3d 1018. at (10) any representation false The use of attempt to collect or deceptive or means then, task, is to first determine Our any or to obtain informa- to collect debt 1) in Chicago process Cable whether concerning a consumer. tion 2) debts, its a name collecting own used 3) own, its would indicate
other than which party a was to collect third (14) business, any company, use 1692a(6). § If Rydel’s debts. See Chica- other than the organization or name exception, does not fall into this go Cable name of debt collector’s busi- true a § it 1692e as debt cannot be liable under organization. or company ness collector. Chicago Rydel claims that Cable violated it held provision of the FDCPA when this Rydel alleges Chicago Cable Cable Services” or itself out as “AT&T phases false name in two used a during relationship its “AT&T Broadband” first, process: debt collection while at using name Rydel, deceptively with thus Rydel’s past-due tempting to collect on than true name.5 its second, after account in-house and for pro debt had been referred to CPA Chicago For Cable be liable 1692e, dispense any § though, cessing. easily must be a “debt We can under Chicago claim actions by Rydel defined statute. Cable’s collector” as after had referred to Rydel’s was account been CPA dispute Chicago does Cable 1692a(6) § qualifies ser it for the provided franchisee collection owed, point, Chicago exception. he he At that Cable vice and that debt owed longer collecting Chicago process was no Chicago Typically, Cable. Cable Broadband,” only last creditor as "AT&T not "AT&T We note that written communi- by Rydel—the received second collec- cation Cable Services.” tion letter sent CPA—referred debts; responsi- payment, was its work he telephone own received calls from CPA, bility undisputed debt collector. representing individuals AT&T Cable Ser- 1692a(6). § See 15 U.S.C. . Chica- vices. Because not in go process Cable was of collect- Regardless of whether Cable phase ing during own debts second to represent entitled itself as “AT&T process involving of the collection Services,” the name “AT&T Cable CPA, third-party debt collector on Rydel’s bills could not have qualify Cable does not debt collector left Rydel, any unsophisticated consum- 1692a(6) under and cannot be held liable er, impression with the that a party third for any representations under 1692e involved the debt process. collection made the letters sent CPA. Indeed, “AT&T Cable Services” was the *14 only party of whom he was aware and was phase As to the first of the collec the entity to which he believed he owed process, Rydel tion argues Chicago It debt. would have created Cable, more falsely representing itself as Chicago Cable, confusion had once Services,” Rydel “AT&T Cable attempted ' arrears, fell into listing started itself his pay him prompt through his debts send- as bills, bills his creditor instead of the ing monthly which service listed his name in which all other business case, had been accumulating arrearages. In that Maguire See v. Citicorp Re- Chicago in process Cable would be transacted. Servs., Inc., tail (2d debts, 147 collecting F.3d 235 meeting prong its own Cir.1998) (noting that to liability one avoid un- exception. der the exception, false-name “a creditor Whether the name “AT&T Ser- Cable need use its full name its business or Chiсago is a name than vices” Ca- ..., name of incorporation it should use own, two,- required prong ble’s as is an under usually name which it transacts open question.6 is undisputed What business, or a commonly-used acronym, Chicago represented Cable itself as that it name has used for the inception “AT&T Cable throughout relation.”) (internal of the credit citations debt, attempts own to collect never omitted).7 quotations Because Chica- representing as Chicago once itself Cable go Cable’s consistent use of the name or anything other than “AT&T Ser- Cable “AT&T Cable Services” on the bills re- undisputed vices.” What is also is that by Rydel ceived could not have indicated Chicago holding Cable’s itself out as party that a third was to collect “AT&T Cable Services” on its bills was debts, Chicago his Cable does not fall un- every Rydel consistent with other contact 1692a(6) der prong excep- three of the Chicago with example, had Cable. For tion subject and was not a “debt collector” Rydel signed services, up when for cable liability under 1692e. he did so on an “AT&T Cable Services” purchase representa- Rydel argues order with a service vigorously that because Chicago tive he understood to be from AT&T. Cable register failed to - After his cable was for non- Cable disconnected Services” or “AT&T as Again, expressed Politano’s 7. affidavit was offered to Plaintiff Gutierrez it best in her explain deposition. use how Cable came to asked if she ever saw Chi- When cago brand names “AT&T Cable Services” and Cable referenced collection letters Broadband," CPA, “No, responded: we "AT&T but are bound to she from she received disregard this information as decided not that I recall I would above because then have people?” in Section A. 3. been Who like: are these of Chica- by Illinois law and Communications required as assumed names go, “AT&T Broadband” Inc. register and failed litigation after this mark until service WOOD, Judge, DIANE Circuit P. initiated, using names it those dissenting. illegal, names were
illegally. Because the use of Rydel claims that Cable’s entirely possible While Francis collection contacts those names in its debt Joseph Rydel may ultimate- Gutierrez and §of 1692e. per him was a se violation ly prove their effort lose allowing argues that rule Rydel further violations of the defendants committed used in debt collec- illegal name be Act, Fair Practices Debt Collection tion, if name has been used even et (FDCPA), my seq. §§ U.S.C. inception of its rela- the creditor since the mate- opinion disputed there are issues of debtor, creates a bad tionship with summary judgment rial fact render here, result, when, the illegal because at inappropriate favor of defendants name, identify- has the debtor then trouble taking this time. This is true even ing true creditor. my them, colleagues record as do. Unlike however, I would find district passing on whether Without *15 refusing court its abused discretion such Chicago Cable’s use of names was permit to conduct further illegal, accept actually we cannot either discovery pulled key when affidavits (although Rydel’s latter argument here Indeed, out of its hat at last minute. espe argument sympathy, attracts some proceedings, throughout pretrial is cially corporation’s structure when de- approach AT&T’s case was This labyrinthine Corp.’s). as AT&T It plorable. played game a shell with its is is because the FDCPA’s focus not affiliates, forcing corporate various the name the creditor whether used entity guess doing which was law, permitted by on whether the is but To day, what at each moment. this I am name used results in the debtor’s de myself. not sure This record contains no entity is ception trying in terms of what important questions answers such as Again, his for a credi to collect debt. entity type what Communications and 1692e, § use tor be hable under its (CCC) is; Chicago, Cable of Inc. how is it “in of a name other than its own must corporate related the other AT&T enti- collecting dicate that a third here; ties issue did it at and where derive consumer’s to collect” the authority its to use the AT&T name and 1692a(6). In this debt. U.S.C. logo, in the word “Broad- combination with consistently repre case Moreover, during band.” AT&T’s conduct sented itself as “AT&T Cable Services” discovery sanctionable, bordered on the throughout Rydel; no dealings very least, been at should have deception entity trying was to what uncorrected. I allowed stand would Thus, debt occurred. collect his proceedings. remand this case further summary properly grant judgment was ed on 1692e claim. why Rydel The reason named AT&T Broadband, LLC as defendant III. Conclusion straightforward: court action state reasons, bills, company For the we AffiRM this on his foregoing named entity grant summary judg- court’s and this was the district address he Broadband, thought preposter- ment in favor of AT&T LLC his creditor used. It is ous, particularly for purposes of a remedial consumers, and an old-fashioned antenna statute FDCPA, like the to think that an for better “free” television reception is an- ordinary consumer distinguish other, would be- even if one assumes that cable pro- tween a company named “AT&T Broad- viders have contractual exclusivity for ca- band” and a company named ble service to defined areas during the Broadband, Rydel learned, LLC.” term of through their contracts.
AT&T’s motion to dismiss his complaint, The majority concedes that this record entirely different company had murky at best with respect to the rela- been providing his services all along: tionships among the corporate various en- CCC. At that point, both he and Gutierrez tities. See ante at 739-40. my In opinion, brought court, this action in federal seek- we cannot decide this case without resolv- ing redress for deception that had ing that issue of fact. The district court been practiced upon them. It is no small was of the opinion: same it listed as an detail that CCC and LaSalle Communica- “uncontested” fact proposition (LaSalle, tions apparently which was Gu- provided CCC service using the provider) tierrez’s “real” never sought had “AT&T” trademark in connection with the permission from the Secretary of State of “Broadband,” word citing only the affidavit Illinois to use an name. assumed Had of Frank Politano for support. Without so, done lawyer bring- conscientious affidavit, Politano’s my which colleagues ing a lawsuit would have discovered this have properly refused to account, take into essential fact and would have been able this crucial assumption collapses. Jennifer name the party correct right away. Heller also testified to matters that were in contest: she
My stated colleagues that the harm, corporate take a “no no foul” owner of LaSalle, CCC and approach to the South problem of the mis-named *16 Cable, Inc., provider, “provided service but cable the services FDCPA does not. In branded as AT&T’ addition to harm combination the with the consumers like terms ‘Broadband’ or Rydel Gutierrez and ‘Cable Services’ in they that acknowl- the Chicago, edge Illinois area.” plaintiffs assumption that their creditor is —the take issue with that megalith AT&T, fact. It is a critical rather than a local dispute, goes firm since it to the question with presumptively less clout in the whether of use market —there name are other they harms suf- authorized, fered. was Errors and it whether misunderstandings oc- was cur a or company name, trademark a all the time in cable and television bills (and anyone whether well). could be by most other misled bills as A con- usage. Finally, sumer Martha Ryczek’s stands affidavit no chance ironing of out included those information that problems they before contradicted the become severe testimony Baucom, of if Richard yet she does plain- not know to whom she must tiffs never had speak. If, a chance explore as it appears these record, on this inconsistencies. Ryczek provided CCC and the in- aré nothing LaSalle more than dispensable support for proposition AT&T, storefronts for problem is even that it was CCC and LaSalle that worse. The handled have now been told Rydel’s and accounts, Gutierrez’s they respec- must sue entities that empty are ves- tively, Broadband, not AT&T as Baucom sels provision for the of AT&T’s had indicated. they services. Had known this at the out- set, they may have chosen a different My colleagues appear to think that the method for receiving television services. fact that AT&T was consistent in its mis- Satellite TV is one alternative option leading practices for helps case, somehow its desig- shall subpoena] and deposition of that in the FDCPA nothing I see
but directors, or officers, more one or nate company a for excuse provides who persons other or managing agents, They note the time. everyone all misleads behalf, may testify on consent say whether it is hard designated, forth, person each for set names various AT&T of use Cable’s testify.” will which the matters (implying ante at 740 illegal, actually was job to it was AT&T’s This means Id. connec- be), and in might it well in- the first right person produce the was Rydel’s position they concede tion thought wrong if it AT&T stance. proposi- the latter With at best. difficult conducted be discovery may properly wholeheartedly. tion, agree I higher an uninformed producing first present- that the I hold would motion waiting a manager, genuine a create evidence enough ed motion, sanctions, hearing on and a ques- regarding fact of material issue person, another finding then later Broadband, vio- LLC whether tion and hear- objections by more followed be furnishing the FDCPA 1692j of lated has thinking is what on. That and so ings, сreated and LaSalle to CCC forms discovery system the American brought that AT&T in consumers belief false bad It was disrepute. international I debts. collecting its this, do but when AT&T to enough for they presented hold also would affidavits the additional sprang then genuine a issue create enough evidence plain- on the Politano, Ryczek Heller, question regarding fact material Plaintiffs tiffs, got even worse. matters using LaSalle were whether CCC by this maneu- entirely blind-sided were not entitled and thus was name false lawyer would dream responsible No ver. 1692(a)(6). CCC 15 U.S.C. protection of every depositions filing notices using a name certainly were and LaSalle who is men- company in a single individual debts, and to collect their own than deposition that principal tioned the same that is not why hard to see it is implicit- taken, this court nor should being no There is name. “false” thing of scorch-the-earth this kind ly endorse to show in the record evidence competеnt second Thus, court’s the district tactic. to do so authorized were whether give refuse was to error *17 compa- all this means Perhaps not. on up to follow they requested time for name a “trademark” use can now nies sur- affidavits their when new people these collection, thereby con- debt purposes they were clear that it became faced and identity consumers the cealing from Its witnesses. key corporate really the how creditors, I do not see but true their prevented to do so failure reconciled can be a rule such record kind of developing from FDCPA. al- judgment, summary on needed the district hold that I would Finally, facts to remain contested lowed ways in two its discretion court abused decision. the ultimate record, distorted First, defendants discovery process. reasons, I reverse would these For designat- for have been sanctioned should remand summary judgment grant of deposed, be Baucom as ing respectfully I proceedings. further 30(b)(6). Fed.R.Civ.P. pursuant dissent. wrongly court, my colleagues, district plaintiffs’ Baucom the blame put states expressly The rule
shoulders. the notice [in so named organization
“the