Francis Gutierrez and Joseph Rydel v. 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 defendants 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 render summary judgment in favor of the defendants inappropriate 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. Indeed, 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 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 Communications 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 preposter*741ous, 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 assumption that their creditor is the megalith AT&T, rather than a local firm with presumptively less clout in the market — 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 aré 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 corporate entities. See ante at 739-40. 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 “uncontested” 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 corporate 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 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, respectively, 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, *742but 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 740 (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 presented enough evidence to create a genuine issue of material 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 discretion in two ways in the discovery process. First, defendants 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 conducted 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 second 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.