FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID TOURGEMAN,

Plaintiff-Appellant,

v.

NELSON & KENNARD, a partnership,

Defendant-Appellee,

and

COLLINS FINANCIAL SERVICES, INC., 

DBA Precision Recovery Analytics, 

Inc., a Texas corporation; COLLINS 

FINANCIAL SERVICES USA, INC.;

PARAGON WAY, INC.; DELL 

FINANCIAL SERVICES, LP,

Defendants.

No. 16-56190

D.C. No.

3:08-cv-01392-

CAB-NLS

OPINION

Appeal from the United States District Court

for the Southern District of California

Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted June 7, 2018

Pasadena, California

Filed August 20, 2018
2 TOURGEMAN V. NELSON & KENNARD

Before: Richard C. Tallman and Jacqueline H. Nguyen, 

Circuit Judges, and Mark W. Bennett,* District Judge.

Opinion by Judge Tallman

SUMMARY**

Fair Debt Collection Practices Act

The panel affirmed the district court’s dismissal of a 

consumer class action under the Fair Debt Collection 

Practices Act.

The FDCPA provides for class statutory damages “not to 

exceed the lesser of $500,000 or 1 per centum of the net 

worth of the debt collector.” The panel held that the plaintiff 

bears the burden of introducing evidence at trial to establish 

the debt collector’s net worth because such evidence is 

essential to an award of class statutory damages.

The panel addressed other issues in a concurrently-filed 

memorandum disposition.

 * The Honorable Mark W. Bennett, United States District Judge for 

the Northern District of Iowa, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
TOURGEMAN V. NELSON & KENNARD 3

COUNSEL

Brett M. Weaver (argued), San Diego, California; Daniel P. 

Murphy, San Diego, California; for Plaintiff-Appellant.

Tomio Buck Narita (argued) and Jeffrey A. Topor,

Simmonds & Narita LLP, San Francisco, California, for 

Defendant-Appellee.

OPINION

TALLMAN, Circuit Judge:

David Tourgeman appeals the dismissal of his consumer 

class action under the Fair Debt Collection Practices Act 

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

for class statutory damages “not to exceed the lesser of 

$500,000 or 1 per centum of the net worth of the debt 

collector[.]” § 1692k(a)(2)(B). The statute is silent as to 

which party bears the burden of introducing evidence at trial 

to establish the debt collector’s net worth. Tourgeman 

appeals the district court’s conclusion that he bore this 

burden. Because the FDCPA makes evidence of the 

defendant’s net worth essential to an award of class statutory 

damages, we agree with the district court and affirm.1

 1 This opinion addresses only Tourgeman’s claim that the district 

court misallocated the burden of proof. We resolve the remaining claims 

in a memorandum disposition filed concurrently with this opinion.
4 TOURGEMAN V. NELSON & KENNARD

I

Tourgeman financed the purchase of a Dell computer 

through a loan agreement.2 Dell Financial Services arranged 

for and serviced the loan, which originated with CIT Online 

Bank. After Tourgeman’s account allegedly became 

delinquent, Dell Financial Services charged off and sold the 

purported debt to Collins Financial Services. Paragon Way, 

Inc., Collins’s affiliated debt-collection company, sent 

several letters encouraging Tourgeman to pay the alleged 

debt. Collins then referred Tourgeman’s file to the law firm 

of Nelson & Kennard, which sent Tourgeman another 

collection letter. All of these letters identified the original 

creditor as American Investment Bank, rather than CIT 

Online Bank. When Tourgeman did not respond to Nelson 

& Kennard’s letter, the law firm filed a collection complaint 

against Tourgeman in state court. The state court complaint, 

like the collection letters, misidentified Tourgeman’s 

original creditor as American Investment Bank. Tourgeman 

responded to the complaint by retaining counsel. Nelson & 

Kennard ultimately dismissed the lawsuit.

Tourgeman brought suit against Nelson & Kennard and 

other entities allegedly involved in collecting his disputed 

debt.3 He claimed that the letters and complaint violated the 

 2 We recount only the facts relevant to the issue before us. The 

factual background of Tourgeman’s case is discussed in more detail in 

our previous opinion. See Tourgeman v. Collins Fin. Servs., Inc., 755 

F.3d 1109, 1112–14 (9th Cir. 2014).

3 Collins Financial Services, Inc., Collins Financial Services USA, 

Inc., and Paragon Way, Inc. defaulted before the district court and did 

not file briefs or offer argument in this appeal. Tourgeman settled with 

Dell Financial Services. This opinion therefore refers only to Defendant 

Nelson & Kennard.
TOURGEMAN V. NELSON & KENNARD 5

FDCPA by using “false, deceptive, or misleading 

representation[s] or means in connection with the collection 

of any debt.” 15 U.S.C. § 1692e. The court later certified a

class of consumer plaintiffs.

The district court dismissed Tourgeman’s lawsuit on 

summary judgment, but we reversed and remanded. 

Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109, 1125 

(9th Cir. 2014). We held that the misidentifications were 

material under the FDCPA as a matter of law, subjecting 

Nelson & Kennard to strict liability. Id. at 1118, 1123–24. 

On remand, the district court dismissed Tourgeman’s letterbased claims on standing grounds, allowing only his 

complaint-based claim to proceed to trial. The focus at trial 

was to be evidence supporting the class award of statutory 

damages and Nelson & Kennard’s bona fide error defense.4

In response to the parties’ pretrial motions in limine to 

exclude evidence and argument regarding net worth, the 

district court instructed the parties to address a related issue: 

which party would carry the burden at trial of introducing 

evidence regarding Defendant’s net worth. The district court 

ultimately held that Tourgeman carried this burden. Because 

Tourgeman lacked competent evidence of Nelson & 

Kennard’s net worth, the district court dismissed his 

complaint-based class claim. Tourgeman moved to dismiss 

his remaining individual claim with prejudice. The district 

court granted the motion, and Tourgeman timely appealed.

 4 The district court had denied Nelson & Kennard’s motion for 

summary judgment, rejecting Defendant’s argument that the class could 

not recover statutory damages as a matter of law.
6 TOURGEMAN V. NELSON & KENNARD

II

We have jurisdiction under 28 U.S.C. § 1291. Whether 

the district court properly allocated the burden of proof is a 

conclusion of law reviewed de novo. Molski v. Foley Estates 

Vineyard & Winery, LLC, 531 F.3d 1043, 1046 (9th Cir. 

2008). We review the district court’s interpretation of the 

FDCPA de novo. Evon v. Law Offices of Sidney Mickell, 

688 F.3d 1015, 1024 (9th Cir. 2012).

III

Tourgeman argues the district court misallocated the 

burden of proof as to Nelson & Kennard’s net worth. We 

disagree. In light of the statutory text and structure, we 

conclude that Congress intended the plaintiff to carry the 

burden at trial of introducing evidence of the defendant’s net 

worth.5

A

Section 1692k of the FDCPA imposes civil liability 

against “any debt collector who fails to comply with any 

provision of this subchapter with respect to any person[.]” 

§ 1692k(a). Class members are entitled to “additional,” or 

statutory damages.6 § 1692k(a)(2). The statute provides a 

 5 The term “burden of proof” historically included both the “burden 

of production” and the “burden of persuasion.” Schaffer ex rel. Schaffer 

v. Weast, 546 U.S. 49, 56 (2005). This appeal concerns the burden of 

production—Tourgeman’s initial obligation to come forward with 

evidence of Nelson & Kennard’s net worth. See id. When we discuss 

the “burden of proof” in this opinion, we are referring to the burden of 

production at trial.

6 Section 1692k also provides for actual damages, as well as 

statutory damages for the plaintiff in an individual action or named 
TOURGEMAN V. NELSON & KENNARD 7

two-step determination for awarding statutory damages to 

class members, excluding named plaintiffs. See § 1692k(a)–

(b). First, the factfinder determines the damages ceiling: a 

class may recover statutory damages “not to exceed the 

lesser of $500,000 or 1 per centum of the net worth of the 

debt collector[.]” § 1692k(a)(2)(B). Within that range, the 

exact amount of damages is determined based on various 

non-exhaustive factors, including:

the frequency and persistence of 

noncompliance by the debt collector, the 

nature of such noncompliance, the resources 

of the debt collector, the number of persons 

adversely affected, and the extent to which 

the debt collector’s noncompliance was 

intentional.

§ 1692k(b)(2). The damages provision is silent as to which 

party carries the burden of producing evidence at trial of the 

defendant’s net worth. See § 1692k.7

The parties agree that one percent of Nelson & 

Kennard’s net worth is less than $500,000. Accordingly, the 

limit on statutory damages available to the class must be one 

percent of Nelson & Kennard’s net worth. Tourgeman 

 plaintiff in a class action. See § 1692k(a)(1), (2)(A)–(B). Tourgeman 

does not seek actual damages for himself or the class, and he dismissed 

his individual complaint-based claim with prejudice.

7 Although § 1692k refers to “the court,” it “has been frequently 

determined that the word ‘court,’ used in the [FDCPA] and in the 

remedial portions of numerous other statutes, encompasses trial by both 

judge and jury rather than by judge alone.” Kobs v. Arrow Serv. Bureau, 

Inc., 134 F.3d 893, 896–97 (7th Cir. 1998) (quoting Sibley v. Fulton 

DeKalb Collection Serv., 677 F.2d 830, 832 (11th Cir. 1982)).
8 TOURGEMAN V. NELSON & KENNARD

conceded below that he could not produce any competent 

evidence of this amount at trial. He asserts, however, that 

Nelson & Kennard should have carried the burden of 

introducing evidence of its own net worth.

B

It is “one of the most basic propositions of law . . . that 

the plaintiff bears the burden of proving his case, including 

the amount of damages.” Faria v. M/V Louise, 945 F.2d 

1142, 1143 (9th Cir. 1991) (citation omitted); see also 

Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005) 

(“Perhaps the broadest and most accepted idea is that the 

person who seeks court action should justify the request, 

which means that the plaintiffs bear the burdens on the 

elements in their claims.” (quoting C. Mueller & L. 

Kirkpatrick, Evidence § 3.1, p. 104 (3d ed. 2003))). This is 

because the party who “seeks to change the present state of 

affairs . . . naturally should be expected to bear the risk of 

failure of proof or persuasion.” Schaffer, 546 U.S. at 56 

(quoting 2 J. Strong, McCormick on Evidence § 337, p. 412 

(5th ed. 1999)).

This fundamental rule is not without exceptions. For 

example, “certain elements of a plaintiff’s claim may be 

shifted to defendants, when such elements can fairly be 

characterized as affirmative defenses or exemptions.” Id. at 

57 (citation omitted); see also FTC v. Morton Salt Co., 

334 U.S. 37, 44–45 (1948) (“[T]he burden of proving 

justification or exemption under a special exception to the 

prohibitions of a statute generally rests on one who claims 

its benefits[.]”). But where the plain text of the statute is 

silent as to which party carries the burden of proof, as is the 

case here, we “begin with the ordinary default rule that 

plaintiffs bear the risk of failing to prove their claims.” 

Schaffer, 546 U.S. at 56 (citations omitted). “Absent some 
TOURGEMAN V. NELSON & KENNARD 9

reason to believe that Congress intended otherwise, 

therefore, we will conclude that the burden of [proof] lies 

where it usually falls, upon the party seeking relief.” Id. at 

57–58.

1

When allocating the burden of proof, “the touchstone of 

our inquiry is, of course, the statute.” Id. at 56. We first 

consider the text of the FDCPA. See Bros. v. First Leasing, 

724 F.2d 789, 792 (9th Cir. 1984) (“In construing a statute 

in a case of first impression, [we] look to the traditional 

signposts for statutory interpretation: first, the language of 

the statute itself[.]” (citation and internal quotations 

omitted)); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175–

76 (2009) (“Statutory construction must begin with the 

language employed by Congress and the assumption that the 

ordinary meaning of that language accurately expresses the 

legislative purpose.” (citation and internal quotations 

omitted)).

Section 1692k limits statutory damages for the class to 

“the lesser of” $500,000 or one percent of the defendant’s 

net worth. § 1692k(a)(2)(B) (emphasis added). Congress’s 

use of “the lesser of” is key because it requires the factfinder 

to determine the defendant’s net worth in calculating 

statutory damages. In other words, Congress made evidence 

of the defendant’s net worth a prerequisite to establishing 

statutory damages. Sanders v. Jackson, 209 F.3d 998, 999 

(7th Cir. 2000) (“The FDCPA makes class action damages 

dependent upon the ‘net worth’ of the defendant.”).

If Congress had intended to depart from the default rule 

and make net worth an affirmative defense or exemption, 

Schaffer, 546 U.S. at 57, it could have limited liability to 

$500,000 unless the defendant could establish that one 
10 TOURGEMAN V. NELSON & KENNARD

percent of its net worth is less than that amount. See 

Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355, 

362 (3d Cir. 2015) (reasoning that use of “unless” in another 

section of the FDCPA, 15 U.S.C. § 1692b(3), was “telltale 

language . . . indicative of an affirmative defense” (citing 

United States v. Franchi-Forlando, 838 F.2d 585, 591 (1st 

Cir. 1988) (Breyer, J.))). It did not do so.

Instead, Congress made evidence of the defendant’s net 

worth essential to establishing the statutory damages cap. 

This case is therefore distinguishable from Kemezy v. Peters, 

79 F.3d 33 (7th Cir. 1996), a case on which Tourgeman relies 

heavily. There, the Seventh Circuit placed the burden on the 

defendant to introduce evidence of its own wealth, but 

emphasized that such evidence is unnecessary to determine 

a punitive damages award under 42 U.S.C. § 1983. Id. at 

34–36 (“The question is whether [plaintiffs seeking punitive 

damages] must present [evidence of the defendant’s wealth.] 

. . . The answer, obviously, is no.”); see also Provost v. City 

of Newburgh, 262 F.3d 146, 163 (2d Cir. 2001) (“The duty 

then is on the defendant to present evidence . . . of his limited 

resources if he wishes that factor to be weighed in the 

calculation of punitive damages.” (emphasis added) 

(citations omitted)); cf. Tri-Tron Int’l v. Velto, 525 F.2d 432, 

438 (9th Cir. 1975) (declining to interfere with a punitive 

damages award where the defendants proffered no evidence 

of their financial ability to pay); El Ranco, Inc. v. First Nat’l 

Bank of Nev., 406 F.2d 1205, 1218–19 (9th Cir. 1968) 

(same). Under the FDCPA, by contrast, evidence of the 

defendant’s net worth is not optional; the plain language of 

the statute requires it if plaintiffs are to recover anything on 

their claims. Because evidence of net worth is crucial to 

establish the class’s entitlement to statutory damages, the 

burden of production at trial is properly placed on the 

plaintiff.
TOURGEMAN V. NELSON & KENNARD 11

2

The structure of § 1692k further supports our conclusion 

that Congress did not intend to shift the burden of production 

to the debt collector.

a

The FDCPA provides a dual-step formula for calculating 

class statutory damages. The factfinder first determines the 

defendant’s maximum liability. § 1692k(a)(2)(B). It next 

“determin[es] the amount of liability in any action under 

subsection (a)” based on a non-exhaustive list of factors. 

§ 1692k(b) (emphasis added). The factfinder thus 

determines the appropriate award of statutory damages 

within the permissible range first established under 

subsection (a).

Tourgeman urges us to adopt a different interpretation. 

He contends that the factfinder can simply skip the cap 

analysis in subsection (a) and proceed directly to the list of 

factors in subsection (b), on which he concedes he carries the 

burden of proof. Under Tourgeman’s theory, the factfinder 

may award any amount, which the debt collector can 

subsequently attempt to limit based on evidence of its net 

worth. Beyond ignoring the plain language of 

§ 1692k(a)(2)(B), discussed above, Tourgeman would have 

us simply overlook the analysis Congress enacted for 

calculating entitlement to damages. This we decline to do. 

See Gonzales v. Oregon, 546 U.S. 243, 273 (2006) 

(“[S]tatutes should not be read as a series of unrelated and 

isolated provisions.” (citation and internal quotations 

omitted)); In re Cardelucci, 285 F.3d 1231, 1234 (9th Cir. 

2002) (“This Court assume[s] that Congress carefully 

select[s] and intentionally adopt[s] the language used in a 

statute.” (alterations in original) (citation and internal 
12 TOURGEMAN V. NELSON & KENNARD

quotations omitted)). Before the factfinder can apply the list 

of factors, plaintiffs must first produce evidence from which 

the factfinder can determine the limit on statutory damages.

This preliminary showing of net worth distinguishes the 

FDCPA from the statutory scheme in Hernandez-Miranda v. 

Empresas Diaz Masso, Inc., 651 F.3d 167 (1st Cir. 2011). 

There, the First Circuit held that the defendant in a Title VII 

employment discrimination action carried the burden of 

proving caps on damages. Id. at 175–76. But, unlike the 

damages cap under the FDCPA, the caps under Title VII 

“come into to play only after there has been a verdict award,” 

and “the defendant employer must affirmatively move to 

impose the cap and to present relevant evidence.” Id. at 173, 

176 (emphasis added) (citing Schaffer, 546 U.S. at 57). 

Moreover, Title VII explicitly “forbids the court from 

informing the jury of the limitations on recovery,” which 

“are for the court, not the jury, to apply.” Id. at 173 (citations 

omitted). This “ensure[s] that no pressure . . . will be exerted

on the amount of jury awards by the existence of the 

statutory limitations.” Id. (citation and internal quotations 

omitted). In contrast, the FDCPA’s damages cap comes into 

play first when the plaintiff is seeking statutory damages, 

and is determined by the factfinder as part of plaintiff’s case 

in chief. Hernandez-Miranda is inapposite.

b

The two exceptions to liability that are delineated in 

§ 1692k provide additional support for applying the default 

rule. See Jerman v. Carlisle, McNellie, Rini, Kramer &

Ulrich LPA, 559 U.S. 573, 587–88 (2010) (“In reading a 

statute we must not look merely to a particular clause, but 

consider in connection with it the whole statute” (citation 

and internal quotations omitted)). The Supreme Court has 

observed that the FDCPA “contains two exceptions to 
TOURGEMAN V. NELSON & KENNARD 13

provisions imposing liability on debt collectors.” Id. at 578. 

Neither involves evidence of net worth.

The first exception is the bona fide error defense:

[a] debt collector may not be held liable . . . if 

[it] shows by a preponderance of the 

evidence that the violation was not 

intentional and resulted from a bona fide 

error notwithstanding the maintenance of 

procedures reasonably adapted to avoid any 

such error.

§ 1692k(c) (emphasis added); see Owen v. I.C. Sys., Inc., 

629 F.3d 1263, 1271 (11th Cir. 2011) (“This bona fide error 

defense in § 1692k(c) is an affirmative defense, for which 

the debt collector has the burden of proof.”); H. Rep. 94-

1202, 94 Cong., 2d Sess. 11 (1976) (“Subsection (c) . . .

provides an exemption from liability[.]”). Section 1692k(c) 

“explicitly places the burden on the debt collector to prove 

that it acted unintentionally and had procedures in place to 

avoid such an error.” Evankavitch, 793 F.3d at 363 (citation 

omitted). The second exception provides a safe harbor from 

liability where the defendant can show it complied with an 

advisory opinion by the Consumer Financial Protection 

Bureau. § 1692k(e) (“No provision of this section imposing 

any liability shall apply to any act done or omitted in good

faith in conformity with any advisory opinion of the 

Bureau[.]”).

The Third Circuit has explained that §§ 1692k(c) and 

1692k(e) are “delineated as affirmative defenses by 

§ 1692k(a)’s general statement that a debt collector shall be 

held liable ‘except as otherwise provided by this section,’ 

with the particular affirmative defenses described in separate 

subsections.” Evankavitch, 793 F.3d at 363 (quoting 
14 TOURGEMAN V. NELSON & KENNARD

§ 1692k(a)). Placing “the exception and the general 

prohibition in different parts of the statute,” our sister circuit 

explained, “has been recognized by the Supreme Court as 

indicative of an affirmative defense.” Id. (citing Meacham 

v. Knolls Atomic Power Lab., 554 U.S. 84, 87, 91 (2008)).

Sections 1692k(c) and 1692k(e) inform our view that 

Congress knew how to shift the burden of proof to the 

defendant, but chose not to do so regarding evidence of net 

worth. See Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078, 

1081 (9th Cir. 2005) (“[W]here Congress includes particular 

language in one section of a statute but omits it in another 

section of the same Act, it is generally presumed that 

Congress acts intentionally and purposely in the disparate 

inclusion or exclusion.” (quoting Russello v. United States,

464 U.S. 16, 23 (1983))). We have also acknowledged the 

“effort by Congress in drafting the FDCPA to be both 

explicit and comprehensive, in order to limit the 

opportunities for debt collectors to evade the under-lying 

legislative intention.” Clark v. Capital Credit & Collection 

Servs., Inc., 460 F.3d 1162, 1178 (9th Cir. 2006) (citation 

and internal quotations omitted).

This is “the backdrop against which the Congress writes 

laws, and we respect it unless we have compelling reasons 

to think that Congress meant to put the burden of [proof] on 

the other side.” Meacham, 554 U.S. at 91–92 (citing 

Schaffer, 546 U.S. at 57–58). Here, we see no reason to 

depart from the default rule. The statute—its text and 

structure—makes evidence of net worth essential to a class 

statutory damages award; it is not an affirmative defense. If 

a plaintiff seeks class statutory damages, it carries the burden 

of introducing such evidence at trial.
TOURGEMAN V. NELSON & KENNARD 15

3

Tourgeman argues that Nelson & Kennard must bear the 

burden on this issue because it has superior access to the 

relevant evidence. We disagree. No rule of statutory 

construction or evidence compels that result.

The Supreme Court has acknowledged the general 

principle that a litigant ordinarily does not carry the burden 

of “establishing facts peculiarly within the knowledge of his 

adversary.” Schaffer, 546 U.S. at 60 (citations and internal 

quotations omitted); see also Dixon v. United States, 

548 U.S. 1, 9 (2006). But the Court has also cautioned that 

“this rule is far from . . . universal,” and “[v]ery often one 

must plead and prove matters as to which his adversary has 

superior access to the proof.” Schaffer, 546 U.S. at 60 

(citations and internal quotations omitted). Access to 

evidence, while perhaps a consideration, is far from 

determinative.

We also note that it is not uniquely difficult for consumer 

plaintiffs to acquire the debt collector’s financial 

information. Compare Thomas v. George, Hartz, Lundeen,

Fulmer, Johnstone, King, & Stevens, P.A., 525 F.3d 1107, 

1114 (11th Cir. 2008) (declining to apply the “superior 

access” rule because “proper use of discovery tools, such as 

interrogatories, requests for admissions, and depositions, 

will reveal which enumerations may apply,” and thus the 

plaintiff will not be unfairly surprised at trial), with 

Evankavitch, 793 F.3d at 365–66 (emphasizing the difficulty 

of acquiring, as an FDCPA plaintiff, information about the 

purpose and basis of the debt collector’s phone calls to third 

parties given a lack of records).

Here, Tourgeman had every opportunity to acquire 

evidence of Nelson & Kennard’s net worth. A protective 
16 TOURGEMAN V. NELSON & KENNARD

order was entered to give Tourgeman access to Defendant’s 

financial information, and Nelson & Kennard was ordered to 

produce it. Tourgeman obtained hundreds of pages of bank 

statements, copies of checks, tax returns, and deposition 

testimony regarding Defendant’s financial condition.8 

FDCPA plaintiffs seeking evidence of net worth “are not 

peculiarly at a disadvantage in the discovery of necessary 

facts[.]” Thomas, 525 F.3d at 1114.

Tourgeman also argues that placing the burden on the 

plaintiff would increase litigation costs, make discovery 

battles inevitable, and generally discourage class actions 

under the FDCPA. But “[w]hatever merits these and other 

policy arguments may have, it is not the province of this 

Court to rewrite the statute to accommodate them.” Artuz v. 

Bennett, 531 U.S. 4, 10 (2000) (per curiam); see also Correia 

v. C.I.R., 58 F.3d 468, 469 (9th Cir. 1995) (“Although 

[plaintiffs] put forth what may be a legitimate policy 

rationale[,] . . . it is for Congress, not the courts, to make 

such a change.” (citation omitted)). We think the statute is 

clear, and our inquiry ends there.

IV

We conclude, based on the text and structure of § 1692k, 

that Congress intended the “ordinary default rule” to apply. 

Schaffer, 546 U.S. at 57. We hold that the plaintiff carries 

the burden of producing evidence at trial of the debt 

 8 The district court concluded that Tourgeman lacked competent 

evidence because he had no expert to interpret this financial information 

for the jury—for example, whether to value distributions to the partner 

as a liability. Because Tourgeman only challenges how the district court 

allocated the burden of proof, we need not address what evidence a 

plaintiff must produce to satisfy its initial burden of production at trial.
TOURGEMAN V. NELSON & KENNARD 17

collector’s net worth to establish entitlement to class 

statutory damages under the FDCPA.

Costs are awarded to the Appellee. See Fed. R. App. P. 

39(a)(2).

AFFIRMED.