ye

fon’ ey

at 44 49-50.) The installer’s truck also contained the AT&T mark and globe logo. (Jd. at 51.)

Gutierrez’s work order did not reference CCC, LaSalle, or AT&T LLC, although LaSalle
provided Gutierrez’s cable services to her while using the AT&T brand name. (Id. at §§ 52-53.)

LaSalle sent Gutierrez account statements from November 2000 to January 2001. These
statements contained the “AT&T Broadband” brand name and the AT&T globe logo, but did not
reference AT&T LLC, CCC, or LaSalle. (Jd. at {{] 55-56.) Each statement and payment coupon
contained Gutierrez’s account number and requested that customers send checks to “AT&T
Broadband” at P.O. Box 173885, Denver, CO 80217-3885. (Id. at 4 57, 59.) The payment
coupons did not reference CCC, LaSalle, or AT&T LLC. (id. at $60.) In addition,
representatives identifying themselves as “AT&T Broadband” answered Gutierrez’s calls to the
customer service number listed on her statements. (Id. at { 58.)

CCC disconnected Gutierrez’s cable on February 8, 2001. (id. at 162.) CCC’s billing
system then automatically forwarded Gutierrez’s account information to CPA for collection. (Id.
at § 63.) CPA sent Gutierrez five collection letters from March to June 2001. (id. at § 64.)
CPA’s letters stated that Gutierrez’s account with “AT&T Cable Services” was past due and
requested payment to “AT&T Cable Services, P.O. Box 173885, Denver, CO 80217-3885.” (Id.
at ] 66.) CPA formulated its letters with the advice of legal counsel. (/d. at | 65.) Neither CCC
nor AT&T LLC participated in formulating these letters. (/d.)

LEGAL STANDARD

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.Civ.P. 56(c). A genuine issue of material fact exists only if “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of
Attica, Ind., 259 F.3d 619, 625 (7" Cir. 2001) (quoting Anderson v, Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

4



ae A a)

Cc CCC did not Indicate that a Third Person was Collecting or Attempting to

Collect Plaintiffs’ Debts

Because CCC consistently used the AT&T marks, no consumer could have believed that
a third person (other than CPA) was attempting to collect its debt. Instead, Plaintiffs could have
only associated the names AT&T Cable Services and AT&T Broadband with the franchise that
provided their cable service. While this company was incorporated as CCC, it used the service
marks of AT&T Cable Services and AT&T Broadband. Accordingly, CCC is entitled to
summary judgment on Count III.

CONCLUSION

Plaintiffs fail to raise a genuine issue of material fact on either Count II or Count IIL
AT&T LLC and CCC are entitled to judgment as a matter of law because the undisputed facts
show that they did not violation Section 1692j or Section 1692e of the FDCPA.

Dated: August 22, 2003 ENTERED:

AMYJ.S E
USS. District Court Judge



te, Pal ry

participating in the collection of ...adebt....” 15 U.S.C. 1692). That is, the Section requires :

a plaintiff to show that the defendant “conceived, prepared, and issued” the misleading form.
Laubach v. Arrow Serv. Bureau, Inc., 987 F Supp. 625, 630 (N.D. Ill. 1997).

AT&T LLC maintains that it is not liable under this section since it did not design,
compile and furnish the letters CPA sent to Plaintiffs.’ While Plaintiffs concede this point, they
counter that AT&T LLC's conduct is actionable because AT&T LLC “knowingly permitted”
CPA to send letters that showed that Plaintiffs owed a debt to “AT&T Broadband.”

Plaintiffs’ argument fails. Even providing Plaintiffs with all reasonable inferences,
AT&T LLC’s participation in the debt collection process did not violate the plain language of the
statute. Section 1692j allows creditors to participate in the creation of the forms, so long as that
participation does not rise to the level of designing, compiling and furnishing. See, e.g., Taylor
v. Rollins, No. 97 C 4156, 1998 WL 164890 at *7 (N.D. Ill. Mar. 30, 1998) (“authoriz[ing],
caus[ing], and permit[ting]” a third party to use one’s name in debt collection was insufficient for
Section 1692j liability); Laubach., 987 F.Supp. at 630 (“label merging, letter printing, and mass
mailing activities” do not constitute designing, compiling, and furnishing). AT&T LLC did
review CPA’s letters, but did not design, compile or furnish the forms. Accordingly, AT&T LLC
is entitled to judgment on Count I.

Il. The Undisputed Facts Show That CCC Did Not Violate Section 1692e Of The
FDCPA

Rydel, representing a class of plaintiffs, alleges in the Complaint that CCC violated
Section 1692e(14) by using a name other than its own in the collection of debt. Section 1692e,
however, only regulates the conduct of “debt collectors.” Accordingly, CCC is entitled to

summary judgment if the undisputed facts show that they are not “debt collectors” as defined by

? AT&T LLC also argues that the forms do not violate Section 1692j because CCC was entitled
to use the names AT&T Broadband and AT&T Cable Services in the letters. The Court
addresses CCC’s use of those names in deciding whether CCC is entitled to summary judgment
on Count Ill. See infra Section II.

6



. A a

The party seeking summary judgment has the burden of proving that no genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91
L.Ed.2d 265 (1986). The party bearing the burden of proof on a particular issue, however, may
not rest on its pleadings, but must affirmatively demonstrate that there is a genuine issue of
material fact. Jd. at 324, 106 S.Ct. at 2553. A mere scintilla of evidence in support of the non-
movant’s position is insufficient to demonstrate the existence of a genuine issue of material fact.
See Anderson, 477 U.S, at 252, 106 S.Ct. at 2512. A party will be successful in opposing
summary judgment only if it presents “definite, competent evidence to rebut the motion.”
E.E.0.C. v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7" Cir. 2000).

In evaluating a summary judgment motion, the Courts construes the evidence in the light
most favorable to the non-movant and draws all reasonable inferences in its favor. Lesch v.
Crown Cork & Seal Co., 282 F.3d 467, 471 (7" Cir. 2002). The Court will accept the non-
movant’s version of any disputed facts if the non-movant supports those facts with relevant,
admissible evidence. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7 Cir.
1996).

ANALYSIS

After reaching a settlement agreement with CPA with respect to Count I, Plaintiffs have
two remaining counts in this lawsuit. In Count II, Plaintiffs allege that AT&T LLC violated
Section 1692j of the FDCPA. In Count II, Plaintiffs claim that CCC violated Section 1692e of
the FDCPA. Defendants move for summary judgment on each count.

L The Undisputed Facts Show That AT&T LLC Did Not Violate Section 1692) Of The
FDCPA

AT&T LLC argues that it is entitled to summary judgment on Count II because the
undisputed facts show that its conduct was not actionable under Section 1692j. Section 1692j of
the FDCPA makes it “unlawful to design, compile, and furnish any form knowing that such form

would be used to create the false belief in a consumer that a person other than the creditor . . . is



oy . ran) an)

attempting to collect CCC’s debts.

Plaintiffs claim that CCC violated this section because it used the assumed names of
AT&T Cable Services and AT&T Broadband in violation of the Illinois Business Corporation
Act. Plaintiffs’ argument, however, is without merit. While the Illinois Business Corporation
Act does regulate against using assumed names under certain circumstances, it explicitly allows a
corporation to identify itself “with a trademark or service mark of which it is the owner or
licensed user....” 805 ILCS 5/4.15.

Plaintiffs claim that CCC’s use of the AT&T name in these combinations does not fall
under this exception. Plaintiffs first note that Defendants did not have a trademark registration
for AT&T Broadband or AT&T Cable Services when they attempted to collect their debts. A
party acquires ownership of a brand name through use — not through registration. Holiday Inn v.
Holiday Inns, Inc., 534 F.2d 312, 319 (C.C.P.A., 1976). CCC used the AT&T Broadband and
AT&T Cable Services names with Plaintiffs from the inception of its franchise. Therefore,
whether CCC had registered the names “AT&T Cable Services” or “AT&T Broadband” is
irrelevant.

Second, Plaintiffs argue that it only AT&T Corporation has a right to use the AT&T
trademarks. This argument fails because the undisputed facts show that AT&T Corporation
orally licensed these trademarks to CCC. Even without the evidence of that licensing agreement,
it is clear that AT&T Corporation has implicitly allowed CCC to use its trademarks. AT&T
Corporation, despite knowledge of this lawsuit and CCC’s use of its trademarks, has chosen not
to institute infringement proceedings against its subsidiary. Plaintiffs do not have standing to
challenge whether AT&T Corporation should allow CCC to use its trademarks. Accordingly,
CCC did not use a name other than its own when calling itself AT&T Cable Services and AT&T
Broadband.



1 Minus Onder Farm (097)

* lan oO
: , ‘ United States District Court, Northern District of Illinois

a

ange Mayitrate Judge Amy J. St. Eve “han haigned Sedge

CASE NUMBER 01 C 7025 DATE 8/22/2003
CASE Everst, et al vs. Credit Protection Association, L.P.
TITLE

[In the following box (a) indicate the party filing the motion, e.g. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

(¢9) a Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due__.

(3) 0 Answer brief to motion due___. Reply to answer briefdue___.

(4) Oo Ruling/Hearingon___setfor__at

(5) oO Status hearing[held/continued to] [set for/re-set for]on___—ssetfor__—S_—att

(© i) Pretrial conference[held/continued to] [set for/re-set for]on__—setfor___—sat__—.

(7) im Trial{set for/re-set for]on__—_at.

(8) Q [Bench/Jury trial] [Hearing] held/continued tot.

(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)

OFRCP4(m) OLocal Rule 41.1 COFRCP41(a\(1) OFRCP41(a)(2).

ao = [Other docket entry] _ Enter Memorandum Opinion and Order. Defendants’ Motion for Summary Judgment
{R. 52-1) is granted. Plaintiffs' Motion to Strike (R. 60-2) is denied. The Court enters judgment in favor of
Defendants AT&T Broadband LLC and Communications and Cable of Chicago, Inc. on Counts It and Ill. Status
hearing set for 8/27/03 Is stricken. Any other pending dates are stricken. Any other pending motions are denied

rah .. » :

ay {For further detail see order attached to the original minute order.]
No notices required, advised in open court.

No notices required.

~ | Notices mailed by judge’s staff.
Notified counsel by telephone.

Docketing to mail notices.

7 | Mail AO 450 form. dunoa Houisia ‘sn
Copy to judge/magistrate judge. . ov!
MESH Hd 22 ony £0
courtroom:
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, Section 1692a.

Ordinarily, creditors are not subject to liability under the FDCPA. The FDCPA, however,
deems a creditor to be a debt collector if it “[1] in the process of collecting [its] own debts, [2]
uses any name other than [its] own [3] “which would indicate that a third person is collecting or
attempting to collect such debts.” 15 U.S.C. § 1692a(6). The undisputed facts show that CCC
does not meet any of these elements.

A. CCC did not Collect its Own Debts

CCC did not collect its own debts. Instead, it hired CPA to be its debts collector.
Therefore, CCC is not deemed to be subject to liability as a debt collector under Section
1692a(6). Epps v. Etan Indus., Inc., No. 97 C 8770, 1998 WL 851488, at *4 (NLD. Ill. Dec. 1,
1998) (despite maintaining some control in the debt collection process, creditor was not liable
under Section 1692a(6) where it hired a debt collector).

B. CCC did not Use a Name other than its Own

At issue here is whether “AT&T Cable Services” and “AT&T Broadband” is a name
other than CCC’s own. A creditor does not have to solely use its name of incorporation under
the FDCPA. Instead, a creditor “should use the name under which is usually transacts business,
or a commonly-used acronym, or any name that it has used from the inception of the credit
relation.” Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (24 Cir. 1998) (internal
quotation and citation omitted); see also Friedman v. Rubinstein, No. 97 C 6610, 1997 WL
757875 at *3 (N.D. Ill. Dec. 1, 1997); Dickenson v. Townside T.V. & Appliance, Inc., 770
F.Supp. 1122, 1128-29 (S.D.W.Va. 1990). Defendants may use assumed names for debt
collection, so long as defendants are consistent in using the assumed name to avoid consumer
confusion. E.g. Friedman, 1997 WL 757875 at *3. CCC did not violate Section 1692a(6)
because it consistently used the service name AT&T Cable Services for its cable franchise

business. CPA continued to use the AT&T Cable Services and AT&T Broadband names when


ve

. . fa) ty

collection letters CPA sent to CCC’s delinquent cable subscribers. (R. 60-1, Pls.” Add’! Material

Facts J 15.)

E. Rydel’s Cable Account

On April 14, 2000, Plaintiff Rydel executed a work order for cable services at his
residence in Chicago, Illinois. (R. 52-3, Defs.’ Statement of Material Facts J 31.) “AT&T Cable
Services” and the AT&T globe logo headed the work order. (Jd. at $32.) The work order did
not reference CCC and AT&T LLC, although CCC was Rydel’s cable provider. (/d. at J 33-
34.)

CCC sent Rydel account statements from April to July 2000 that contained the name
“AT&T” in conjunction with “Cable Services” and the AT&T globe logo. (/d. at T¥ 36, 38.)
Each statement also contained a payment coupon that requested checks to “AT&T Cable
Services” at P.O. Box 173885, Denver, CO, 80217-3885. (Id. at { 39.) None of the statements
or payment coupons reference CCC or AT&T LLC. (Id. at $37, 40.) CCC disconnected
Rydel’s services on July 14, 2000 because of an outstanding balance. (Id. at §] 41-42.)

Upon disconnection, CCC’s billing system automatically forwarded Rydel’s delinquent
account to CPA for collection. (Id. at | 43.) CPA sent two collection letters to Rydel on August
21 and September 11, 2000. (/d. at 44.) Neither AT&T LLC nor CCC participated in the
design or drafting of these letters. (Jd. at § 45.)

CPA’s first letter to Rydel stated that his account with “AT&T Cable Services” was past
due and requested payment be sent to “AT&T Cable Services, 1255 W. North Ave., Chicago, IL
60622-1543.” (Id. at | 46.) CPA’s second letter stated that his account with “AT&T
Broadband” was overdue and requested payment be sent to “AT&T Broadband” at the same
address. (/d. at | 48.)

F. Gutierrez’s Cable Account

On September 11, 2000, Gutierrez executed a work order headed “AT&T Cable
Services” with the AT&T globe logo for cable services at her residence in Chicago, Illinois. (Id.

3



; (“LaSalle”) from September 2000 to September 2001. (R. 52-3, Defs.’ Statement of Material
Facts 6.) AT&T Corp. was the parent company to both South Chicago Cable, Inc. and AT&T
LLC throughout this time-period. (Id. at 7-8.) Thus, CCC, LaSalle, and AT&T LLC were
affiliated corporations that shared the same parent, AT&T Corp. (Id. at #¥] 9, 20.)

B. CCC and LaSalle’s Principal Business

CCC and La Salle are franchisees that provide cable services. Companies obtain
franchises from municipalities in order to provide residential cable services to individuals in
those municipalities. (R. 52-3, Defs.’ Statement of Material Facts 10.) From September 2000
through September 2001, CCC held a franchise to provide cable services to Rydel and his
municipality, and LaSalle held a franchise to provide cable services to Gutierrez’s municipality.
Ud. at $f 11, 13-14, 29.) AT&T LLC did not hold a franchise to provide cable services in the
Chicago metropolitan area during this time. (Jd. at 4 12.) Neither CCC nor LaSalle principally
engage in debt collection. (d. at { 15.)

c. CCC and LaSalle’s Use of the AT&T Brand Name

When CCC and LaSalle began providing cable services pursuant to their franchises, they
branded their services by using the “AT&T” mark in connection with “Broadband.” (R. 52-3,
Defs.’ Statement of Material Facts | 17.) AT&T Corporation, which is the parent company of
CCC and LaSalle, is the owner and registrant of various trademarks with the AT&T name and
the famous AT&T globe logo. (/d. at J 18.)

D. CPA’s Debt Collection Services

CPA provided debt management and recovery services to TCI of Ilinois, Inc. and its
affiliate, AT&T Cable Services, from December 1, 1999 to December 1, 2000. {R. 52-3, Defs.’
Statement of Material Facts 23.) CCC and LaSalle automatically forwarded unpaid accounts to
CPA for collection upon hard disconnection. (Id. at [¥] 24-25, 35.) CCC and LaSalle authorized
CPA to telephone delinquent cable subscribers, send collection letters formulated by CPA to
them and accept check and credit card payments. (Id. at [f 26-28, 31.) AT&T LLC reviewed the

2



a, a fa}

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ANDREW EVERST, et al., )
)
Plaintiffs, )
) No. 01 C 7025
v. j
)
CREDIT PROTECTION ASSOCIATION, L.P., —)
etal., )
)
Defendants. )
RAND NI D

AMY J. ST. EVE, District Judge:

Andrew Everst, Frances Gutierrez, and Joseph Rydel filed a class action lawsuit against
Credit Protection Association, L-P. (“CPA”), AT&T Broadband, LLC, (“AT&T LLC”) and
Communications and Cable of Chicago, Inc. (“CCC”) alleging violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”). CPA reached a settlement agreement
with Plaintiffs. The remaining defendants, AT&T LLC and CCC, now move for summary

DOCKETED

AUG 2 5 2003

judgment. For the reasons stated herein, the Court grants the motion.
BACKGROUND
L Uncontested Facts!
A. Corporate Relationship ;
South Chicago Cable, Inc. owned both CCC and LaSalle Telecommitinications, Inc, oe

' The Court denies Plaintiffs’ motion to strike Defendants’ use of three affidavits. Plaintiffs
complain that Defendants improperly rely on declarations of witnesses that Defendants did not
disclose as required by Federal Rule of Civil Procedure 26(a). Plaintiffs’ argument fails for two
reasons, First, Defendants’ use of Jennifer Heller’s affidavit does not prejudice Plaintiffs, since
they admit all material facts that are supported by Heller’s affidavit. Second, Defendants were
under no duty to supplement their Rule 26(a) disclosures with respect to Frank Politano and
Martha Ryczek. Rule 26(e) only mandates supplementation where “information has not
otherwise been made known to the other parties during the discovery process.” Plaintiffs admit
that they knew that Politano and Ryczek possessed relevant information. Plaintiffs’ counsel even
asked certain deponents questions about these two affiants. In any event, if Politano or Ryezek
had provided information in their affidavits that made it impossible to respond without further

discovery, Plaintiffs should have filed a Rule 56(f) motion. 7
a