FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CATHERINE EVON, 

Plaintiff-Appellant, No. 10-16615

v. D.C. No. 

LAW 2:09-cv-00760- OFFICES OF SIDNEY MICKELL

and SIDNEY MICKELL,

JAM-KJN

Defendants-Appellees. 

CATHERINE EVON, 

Plaintiff-Appellee,

No. 10-17836

v.

D.C. No. JOHN N. DAHLBERG,

 2:09-cv-00760- Appellant, JAM-KJN

and OPINION

LAW OFFICES OF SIDNEY MICKELL,

Defendants. 

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted

February 16, 2012—San Francisco, California

Filed August 1, 2012

Before: Betty B. Fletcher, John T. Noonan, and

Richard A. Paez, Circuit Judges.

8469
Opinion by Judge B. Fletcher;

Dissent by Judge Noonan

8470 EVON v. LAW OFFICES OF MICKELL
COUNSEL

Sergei Lemberg, Lemberg & Associates LLC, Stamford, Connecticut, for the plaintiff-appellant.

John N. Dahlberg, Dillingham & Murphy, LLP, San Francisco, California, for the defendants-appellees.

EVON v. LAW OFFICES OF MICKELL 8473
OPINION

B. FLETCHER, Circuit Judge:

Both parties in this action appeal various rulings of the district court’s summary judgment, class certification, attorney’s

fees, and sanctions orders. The principal issue is whether a

debt collector may send collection notices addressed to the

debtor, in “care of” the debtor’s employer. We conclude that

the answer is “no.”

Defendant Law Offices of Sidney Mickell sent a debt collection letter addressed directly to Plaintiff Catherine Evon in

“care of” her employer. Evon filed a class action lawsuit

alleging that Mickell’s act of sending letters “care of” the

class members’ employers violated the Fair Debt Collection

Practices Act’s prohibition on communication with third parties. 15 U.S.C. § 1692c(b). She further alleged that the contents of the letter violated the Act’s prohibition against “false,

deceptive, or misleading misrepresentation[s].” § 1692e.

Because Congress enacted the FDCPA to protect debtors from

abusive debt collection practices, id., and because we have

consistently interpreted the statute liberally to achieve that

objective, Mickell’s act of sending “care of” letters constitutes

a per se violation of the FDCPA. We therefore reverse the district court’s denial of Evon’s class certification motion on that

issue and remand for further proceedings. We agree, however,

with the district court that the contents of the letter does not

violate the Act and we therefore affirm the district court’s

denial of Evon’s class certification motion in that regard.

I. BACKGROUND

Evon incurred a debt, which was assigned to Mickell for

collection. As part of Mickell’s collection efforts, a debt collector contacted Evon at home on several occasions. During

a phone call between Evon and one of Mickell’s debt collectors, Evon asked that she not be contacted at work. Nonethe8474 EVON v. LAW OFFICES OF MICKELL
less, either intentionally or by mistake, Mickell sent a debt

collection letter to Evon’s place of employment. The mailing

address read:

Catherine Evon PERSONAL AND 

CONFIDENTIAL

C/O Homeq Servicing 

4837 Watt Ave #100

North Highlands CA, 95660

One line below the mailing address read:

Creditor: CACH, LLC Our File Number: 

xxxxxxxxxxxxxxxxx

Original Creditor: Maryland National Bank

Original Account Number: xxxxxxxxxxxxxxx

Balance: $xxxx.xx

The letter was placed in a window-style envelope and it is

unclear whether a viewer could see this debt-related information. 

The return address on the envelope read:

Law office of Sidney H. Mickell

5050 Palo Verde St., Ste. 113

Montclair, CA 91763

The letter was opened and read by various individuals,

including people in the legal department, before it found its

way to Evon. Id. The letter stated that Evon owed a debt and

that failure to pay could result in legal action. Id. 

On March 18, 2009, Evon filed suit alleging violations of

the FDCPA. On July 13, 2009, Evon filed an amended class

action complaint alleging that (1) Mickell’s act of sending

debt collection letters to the class members’ workplaces was

unlawful; and (2) the content of the letters violated the

EVON v. LAW OFFICES OF MICKELL 8475
FDCPA because they included language that was false, misleading, deceptive or threatening.1

 Evon moved for partial

summary judgment on the issue of liability and also moved

for class certification. Mickell moved for summary judgment

on all of Evon’s claims and opposed the motion for class certification. 

The district court denied Evon’s motions for partial summary judgment and class certification. The district court

granted Mickell’s motion for summary judgment on the class

claims finding that neither Mickell’s act of sending letters to

the plaintiffs’ workplaces nor the content of the letters violated the FDCPA. But the district court denied summary judgment on the issue of whether Mickell violated the FDCPA by

sending a letter to Evon’s workplace, finding that fact issues

existed as to whether the letter was sent in error.

After the district court rendered its decision, Evon accepted

Mickell’s Rule 68 offer of judgment on her individual claim.

Pursuant to the judgment, Evon filed an application for attorney’s fees and the district court held a hearing on the motion.

Evon sought more than $90,000 in attorney’s fees and costs

and the district court awarded her $2,301.95. Evon timely

appeals.

II. JURISDICTION

We begin by determining whether we have jurisdiction

over Evon’s appeal of the district court’s summary judgment

and class certification rulings. 

Mickell first argues that there is no appellate jurisdiction

over the district court’s partial summary judgment rulings

1The amended class action complaint also alleged a violation of the

Rosenthal Fair Debt Collection Practices Act but Evon voluntarily withdrew that count and one of the FDCPA counts. In addition, Evon withdrew

her claim for actual damages. 

8476 EVON v. LAW OFFICES OF MICKELL
because those rulings did not dispose of the entire case. While

it is true that “orders granting partial summary judgment,

because they do not dispose of all claims, are not final appealable orders under section 1291,” Cheng v. Comm’r, 878 F.2d

306, 309 (9th Cir. 1989), Evon does not argue that appellate

jurisdiction arose after the district court’s partial summary

judgment rulings, but rather after the district court entered

final judgment. 

Mickell’s next argument is that there is no appellate jurisdiction because the district court’s judgment did not “incorporate or refer to the partial summary judgment rulings.” There

is no requirement that the judgment must incorporate prior

rulings to be considered final. This circuit takes a “pragmatic

approach to finality in situations where events subsequent to

a nonfinal order fulfill the purposes of the final judgment

rule.” Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073,

1075 (9th Cir. 1994). In this case, a final judgment was

entered on July 15, 2010, disposing of all the claims between

the parties. “There is no danger of piecemeal appeal . . . if we

find jurisdiction here, for nothing else remains in the federal

courts.” Anderson v. Allstate Ins. Co., 630 F.2d 677, 681 (9th

Cir. 1980). 

[1] Mickell’s final jurisdictional argument is that by voluntarily dismissing her claims after the district court denied

class certification, Evon extinguished her personal interest in

the litigation, and therefore, no justiciable controversy

remains to be heard on appeal. We recently considered this

argument in Narouz v. Charter Communications. 591 F.3d

1261 (9th Cir. 2010) (addressing “the issue of whether a class

representative who voluntarily settles his or her individual

claims in a putative class action renders an appeal from a

denial of class certification moot.”). There, the court considered two prior Supreme Court cases, United States Parole

Commission v. Geraghty, 445 U.S. 388 (1980), and Deposit

Guaranty National Bank, Jackson Mississippi v. Roper, 445

U.S. 326 (1980), that discussed a related question: whether a

EVON v. LAW OFFICES OF MICKELL 8477
named plaintiff retained jurisdiction to appeal a denial of class

certification after his or her claims involuntarily expired. Id.

at 1264. Geraghty and Roper reasoned that in such cases, the

class representative’s ability to appeal the adverse class certification ruling depends on whether he or she maintains a personal stake in obtaining class certification defined as “an

interest in spreading litigation costs and shifting fees and

expenses to the other litigants with similar claims.” Id.;

accord Pitts v. Terrible Herbst, 653 F.3d 1081, 1090 (9th Cir.

2011) (noting that if the district court has denied class certification the class representative may nonetheless retain “either

an individual economic interest in ‘shift[ing] part of the costs

of litigation to those who will share in its benefits if the class

is certified and ultimately prevails’ or a private-attorneygeneral-like interest in having a class certified if the requirements of Rule 23 are met.”) (citations omitted). Our opinion

in Narouz extended this principle to cases where the “class

representative voluntarily settles his or her individual claims.”

Id. (emphasis added). We explained that in order to retain a

“personal stake” in the class certification ruling, a named

plaintiff cannot contract away “any and all interests he or she

may have had in class representation through a private settlement agreement.” Id. (citing Toms v. Allied Bond & Collection Agency, Inc., 179 F.3d 103, 105-06 (4th Cir. 1999)

(holding that the class representative had maintained no interest in a case where he expressly relinquished “any and all”

claims “of any kind or nature whatsoever he may have individually” in addition to “any claims for attorney’s fees, costs,

or compensation as class representative, [and any claims] he

may have as a member/representative of the putative class”)).

Conversely, “a settlement agreement that specifically provides that the class representative is solely releasing individual claims may permit the class representative to retain a

‘personal stake’ in the class claim.” Id. (citing Richards v.

Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006)

(holding that the named plaintiff maintained a personal stake

when the settlement agreement released the defendant of “any

8478 EVON v. LAW OFFICES OF MICKELL
and all individual claims that she might have” which were not

“in derogation of . . . Plaintiff’s class claim”)). Whether we

have jurisdiction over Evon’s claim, therefore, turns on the

language of her settlement agreement. 

Evon signed a Rule 68 offer of judgment that states:

Defendants Law Office of Sidney Mickell and Sidney Mickell, Esq. (“Defendants”) hereby offer to

allow judgment to be taken against them pursuant to

Federal Rule of Civil Procedure 68 as follows:

1. Judgment in favor of Plaintiff and against

both Defendants, inclusive, in the total amount of

$1,010.99 (one thousand ten dollars and ninety nine

cents).

2. The reasonable recoverable costs of the action

now accrued as determined by the Court, together

with a reasonable attorney’s fee incurred through the

date of this offer, as determined by the Court and

including those fees and costs reasonably necessary

to establish the amounts of the reasonable recoverable costs and reasonable attorney’s fee pursuant to

15 USC § 1692k(a)(3).

This offer is not a concession or admission of liability on the part of defendants, or an admission or

concession that Plaintiff has any damages. Defendants also do not concede or admit that Plaintiff has

a right to appeal any prior ruling of this Court if she

accepts this offer.

[2] While the language of the offer of judgment does not

include an express reservation of Evon’s right to pursue an

appeal on behalf of the class, it is not so broad that it can be

read to release her class claims. In cases where courts have

found that a plaintiff has bargained away the right to appeal

EVON v. LAW OFFICES OF MICKELL 8479
the class certification ruling, the language of the settlement

agreement has made explicit reference to the class claims,

thus clearly supporting that conclusion. Cf. Sanford v. MemberWorks, Inc., 625 F.3d 550, 557 (9th Cir. 2010) (dismissing

class representative who relinquished “ ‘all claims, . . .

whether class, individual, or otherwise, including any claim

for costs, expenses, pre or post judgment interest, penalties,

fees (including attorneys’ fees, expert fees and consulting

fees) . . . for any kind of relief whatsoever (including injunctive relief, monetary relief, damages, punitive damages, restitution, reimbursement, disgorgement, and economic injury)’ ”

in settlement agreement); Toms v. Allied Bond & Collection

Agency, Inc., 179 F.3d 103, 105-06 (4th Cir. 1999) (holding

that plaintiff released both individual and class claim in settlement agreement that “expressly relinquished ‘any and all’

claims ‘of any kind or nature whatsoever he may have individually . . . [and] ‘any and all’ monetary claims ‘including

any claims for attorney’s fees, costs, or compensation as class

representative, he may have as a member/representative of the

putative class, which in any way are related to or arise from

those matters pleaded’ in this litigation.”); Dugas v. Trans

Union Corp., 99 F.3d 724, 728-29 (5th Cir. 1996) (finding

lead plaintiff relinquished individual and class claims where

settlement expressly referred to the class certification denial

and plaintiff agreed to dismiss the entire “action” without any

reservation of the right to appeal). When we compare Evon’s

agreement with the agreements in Sanford, Toms, and Dugas,

we find that it is not an unqualified release of her class claims.

Nowhere in the agreement is there a reference to “all claims”

and no mention is even made of the class claims or the class

certification ruling. Indeed, the agreement appears to contemplate that Evon will appeal, and if she does, preserves the

jurisdictional question. 

[3] Moreover, to the extent that the Rule 68 offer is ambiguous regarding whether Evon relinquished her class claims,

we apply general principles of contract law to determine the

meaning of the agreement. See Guerrero v. Cummings, 70

8480 EVON v. LAW OFFICES OF MICKELL
F.3d 1111, 1113 (9th Cir. 1995) (“[t]he usual rules of contract

construction apply to interpreting the terms of a Rule 68 settlement offer. . .”) (internal quotation marks and citation omitted). Thus, we may use the parol evidence doctrine to shed

light on the meaning of language in a contract. See

RESTATEMENT (SECOND) OF CONTRACTS §§ 212,

214(c) (1981) (stating that where the express terms of an integrated agreement are ambiguous, the court may determine the

intended meaning of the contracting parties by considering the

situation and relations of the parties, the subject matter of the

transaction, preliminary negotiations and statements made

therein, and the course of dealing between the parties). Here,

our conclusion is further strengthened by comparing the language of the original Rule 68 offer, which Evon rejected, with

the language of the agreement she ultimately accepted. The

first offer stated:

Plaintiff’s acceptance of Defendant’s Offer of

Judgment herein shall be deemed voluntary and shall

operate as an express and complete release of any

and all of Plaintiff’s individual claims and all classbased interests in this litigation. Plaintiff’s acceptance of Defendant’s Offer of Judgment shall end

this case . . . 

Plaintiff agrees to take no appeal, and to seek no

reconsideration or further review in this Court, or in

the Court of Appeals, or in the United States

Supreme Court, of any and all ruling, Orders, or

findings made as of the date of acceptance, or thereafter, including but not limited to District Court’s

June 2, 2010 rulings denying (1) plaintiff’s motion

for class certification, her (2) motion for partial summary judgment, her (3) motion to reopen discovery,

(4) the granting of defendant’s motion for partial

summary judgment . . .

Evon rejected this offer which explicitly released all of her

individual and class-based claims. Unlike the first offer, the

EVON v. LAW OFFICES OF MICKELL 8481
second offer, which she accepted, makes no mention of the

class-based claims and therefore, Evon cannot be said to have

contracted away these claims. 

Mickell argues that Evon could easily have preserved her

right to appeal by rejecting its offer of judgment. Instead,

Mickell argues, Evon chose to accept the Rule 68 offer. But

Evon’s choice should be understood in context: the district

court in this case had only partially granted Mickell’s motion

for summary judgment—Evon’s claim that Mickell violated

the FDCPA by sending a letter to her workplace was proceeding to trial. At that point, her choices were: (1) go to trial; or

(2) accept the Rule 68 offer and then appeal the resulting final

judgment.2 With respect to her first choice, during the course

of the litigation, Evon abandoned her actual damages claim so

even if she went to trial and won, the maximum recovery

would be statutory damages which are capped at $1,000 plus

costs and attorney’s fees. The second offer was for just more

than $1,000. By acceptance, she could avoid the expense of

trial and the risk of recovering less than Mickell’s Rule 68

offer. If she failed to accept the offer, the consequence could

be no recovery of attorney’s fees and even being saddled with

Mickell’s costs.3 She chose to accept the second offer and

pursue an appeal of the district court’s rulings. 

2Evon alternatively could have sought leave to file an interlocutory

appeal of the district court’s denial of class certification. The decision

whether to grant leave to file an interlocutory appeal is, however, discretionary, and “should be granted sparingly” and only in “rare cases.”

Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005). If the

request for interlocutory appeal was denied, Evon would then have had the

same choices as before, but with the additional expense of having sought

interlocutory review. Instead, Evon pursued a reasonable course of action;

she preserved her class claims notwithstanding her acceptance of Mickell’s second offer of judgment. 

3Under Rule 68, if a plaintiff rejects a defendant’s offer of judgment and

“the judgment finally obtained by the offeree is not more favorable than

the offer, the offeree must pay the costs incurred after the making of the

offer.” Fed. R. Civ. Proc. 68. 

8482 EVON v. LAW OFFICES OF MICKELL
[4] In light of the considerations outlined above, Evon’s

class claims remain subject to appellate review.

III. SUMMARY JUDGMENT RULINGS

(A) Standard of Review 

The panel reviews a grant or denial of summary judgment

de novo. Mark H. v. Hamamoto, 620 F.3d 1090, 1096 (9th

Cir. 2010). “Summary judgment is to be granted only if the

pleadings and supporting documents, viewed in the light most

favorable to the non-moving party, show that there is no genuine issue as to a material fact, and the moving party is entitled to judgment as a matter of law.” Legal Aid Servs. of

Oregon v. Legal Servs. Corp., 608 F.3d 1084, 1093 (9th Cir.

2010).

In addition, the panel reviews a district court’s interpretation of the FDCPA de novo. Donohue v. Quick Collect, Inc.,

592 F.3d 1027, 1030 (9th Cir. 2010).

(B) Analysis 

(1) “Care of” Letters to Debtors’ Employers 

Evon alleges that Mickell’s sending of debt collection letters to class members’ places of employment without first

obtaining their consent violates section 1692c(b) of the

FDCPA. 

That section states:

(b) Communication with third parties

Except as provided in section 1692b of this

title, without the prior consent of the consumer given directly to the debt collector,

or the express permission of a court of comEVON v. LAW OFFICES OF MICKELL 8483
petent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial

remedy, a debt collector may not communicate, in connection with the collection of

any debt, with any person other than the

consumer, his attorney, a consumer reporting agency if otherwise permitted by law,

the creditor, the attorney of the creditor, or

the attorney of the debt collector.

[5] Notably absent from the list of individuals or entities

that a debt collector may communicate with is the debtor’s

employer. Under the plain language of this statute, a violation

occurs when a debt collector sends a letter to the debtor’s

place of employment absent consent.4 That much is clear. The

trickier question is whether sending a letter addressed to the

4At the hearing on the motions, the district judge pressed Evon’s counsel to point to the specific language of the statute that explicitly says that

sending a letter to a debt collector’s employer is always prohibited: 

The Court: . . .[Debtors] owed a debt and they got a letter that

was sent to them at their place of employment, which in and of

itself isn’t against the law; right? You’d agree with that? You can

send a letter to a place of employment? 

[Evon’s counsel]: No, your Honor. 

The Court: You’re shaking your head no. You think sending a

letter — tell me, because I looked at the statute. Where is a prohibition that says you can never send a letter to the employer? 

[Evon’s counsel]: Well, the prohibition is in 1692c(b). 

The Court: I’m looking at it. Tell me where it says a debt collector can never send a letter to an employer, because I didn’t read

that in the statute. 

Expressio unius est exclusio alterius is a fundamental principle of statutory construction that the express designation of one thing may be properly construed to mean the exclusion of others not expressed. See Barnhart

v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Being mindful of this

principle permits the conclusion that subsection (b) is an exhaustive list of

the categories of individuals with whom a debt collector may communicate; a debtor’s employer is not on the list. 

8484 EVON v. LAW OFFICES OF MICKELL
debtor but using the debtor’s employer’s address constitutes

a violation. 

[6] Congress enacted the FDCPA in 1968 in response to

“abundant evidence of the use of abusive, deceptive, and

unfair debt collection practices by many debt collectors

[which] contribute to the number of personal bankruptcies, to

marital instability, to the loss of jobs, and to invasions of individual privacy.” 15 U.S.C. § 1692(a). Congress intended the

Act to eliminate unfair debt-collection practices such as

embarrassing communications. The Senate Report explicitly

stated:

Collection abuse takes many forms, including . . .

disclosing a consumer’s personal affairs to friends,

neighbors, or an employer . . . 

Sen. Rep. No. 382, 95th Cong., 1st Sess. 2 (1977), reprinted

in 1977 U.S.C.C.A.N. 1695, 1696.

[7] Given this court’s recognition that the FDCPA is a

remedial statute which should be interpreted “liberally,” Clark

v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162,

1168 (9th Cir. 2006), Mickell’s act manifestly constitutes a

violation. Mickell knew or could reasonably anticipate that a

letter sent to a class member’s employer might be opened and

read by someone other than the debtor as it made its way to

him/her.5 This is exactly what happened to Evon, causing her

5The dissent criticizes us for failing to provide “evidence” to support

our reasoning. The dissent overlooks a critical piece of evidence: the letter

sent to Evon’s employer, despite being marked “personal and confidential,” was opened and read by several people, including some in the company’s legal department. 

Judge Noonan then proceeds to rest his conclusion on his own experience. Dissent at 8508 (“Nothing in my experience suggests that [opening

letters sent to an employee in care of the employer’s address] is the rule

or common practice.”). When it comes to opening other people’s mail,

EVON v. LAW OFFICES OF MICKELL 8485
stress and embarrassment, precisely what the Act is designed

to prevent. 

Next, even if Mickell assumed that some debtors receive

mail at their place of employment, it is not reasonable for

Mickell to assume that all debtors’ mail so received remains

unopened and unseen before reaching the debtor. As a lawyer

in the business of debt collecting, Mickell should have known

of the real possibility that a letter to a debtor’s place of

employment, even one marked “Personal and Confidential,”

would be viewed by someone other than the debtor. 

Finally, the return address on the envelope was from the

“Law office of Sidney H. Mickell.” Any person handling

Evon’s mail would therefore know that Evon was receiving

legal mail, a fact many people would prefer be kept private.

Other than holiday greetings, correspondence from an attorney’s office rarely relays good news and often communicates

information that can be embarrassing or even frightening to

the recipient. As the Senate Report noted, disclosing a consumer’s personal affairs to his or her employer is a form of

collection abuse. The Act was explicitly intended to protect

consumers from these types of communications. 

Judge Noonan’s experience is hardly relevant. He is not likely among the

class of persons to be sent a debt collection letter directly or “care of” his

employer. The demographic statistics of American debtors show that more

than 70% never graduated from college and well over half earned less than

$40,000 per year (the data’s sample is of bankruptcy filers). Institute for

Financial Literacy, 2010 Annual Consumer Bankruptcy Demographics

Report, A Five Year Perspective of the American Debtor, 11-12, Sept.

2011, available at http://www.financiallit.org/PDF/2010_Demographics_

Report.pdf (last visited June 4, 2012). Occupations of those whose median

annual wage is under $40,000 include food preparation workers, janitors,

clerical workers, and construction laborers. Bureau of Labor Statistics,

National Compensation Survey: Occupational Earnings in the United

States, 2010, Table 3, 3-26, 3-18-19, 3-23, 3-26, available at

http://www.bls.gov/ncs/ocs/sp/nctb1477.pdf (last visited June 4, 2012).

These workers likely have little say over their employers’ mail handling

practices. 

8486 EVON v. LAW OFFICES OF MICKELL
The Federal Trade Commission (FTC) Commentary prohibits this type of conduct. In its Staff Commentary, the FTC

states:

Accessibility by third party. A debt collector may not

send a written message that is easily accessible to

third parties. For example, he may not use a computerized billing statement that can be seen on the envelope itself. A debt collector may use an “in care of”

letter only if the consumer lives at, or accepts mail

at, the other party’s address.

Staff Commentary, 53 Fed. Reg. 50097-02 (Dec. 13, 1988)

(emphasis added). Although not dispositive, the FTC’s Commentary is illustrative of the types of permissible and impermissible conduct.

Moreover, Mickell conceded that he had Evon’s home

address. He just didn’t want to use it. As he testified at his

deposition, Mickell “believed that a letter at work that is

received during the day when people were awake and when

people are in a business mode and my office is open, is more

conducive to a successful communication” with the debtor.

That may be true in some instances; perhaps some debtors

would prefer to receive debt collection letters or phone calls

at their place of employment. The Act allows debt collectors

to contact these debtors; the debtor however needs first to

give his or her consent. Mickell admitted that he had no practice or policy in place to inquire whether a debtor consents to

receiving mail at work. He took a chance that his conduct

would not run afoul of the Act. “[O]ne who deliberately goes

perilously close to an area of proscribed conduct [takes] the

risk that he may cross the line.” FTC v. Colgate-Palmolive,

Co., 380 U.S. 374, 393 (1965) (quoting Boyce Motor Lines,

Inc., v. United States, 342 U.S. 337, 340 (1952)). Here, Mickell’s conduct crossed the line.

Permitting debt collectors to send letters addressed to the

debtor in “care of” the debtor’s employer absent the debtor’s

EVON v. LAW OFFICES OF MICKELL 8487
consent would allow debt collectors to circumvent the protection inherent in section 1692c(b); it would also impermissibly

place the burden on the consumer to affirmatively contact the

debt collector to notify it that communications to third parties

are unacceptable. As Evon points out, if Mickell’s practice

was permissible, what would prevent Mickell or any debt collector from sending debtors letters addressed to them “care

of” their parents, neighbors, friends, or relatives? 

[8] Because Mickell’s act constitutes a per se violation, the

district court erred in denying Evon’s motion for summary

judgment on the issue of liability. 

(2) Content of the Letters 

[9] Evon next argues that the content of the letter violated

15 U.S.C. § 1692e which broadly prohibits the use by a debt

collector of “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”

The letter states, in its entirety:6

Dear Ms. Evon:

This office has attempted to avoid the costly and

time consuming process of litigating the abovementioned debt. Unfortunately, it appears that our

efforts have failed.

Because you have chosen to limit our alternatives in

resolving Account Number xxxxxxxxxxxxxxxxx,

California Code of Civil Procedure Section 1033,

requires us to inform you of the fact that we intend

to commence legal action against you in the Superior

6Again, Evon asserts that all class members received the same or similar

letter. 

8488 EVON v. LAW OFFICES OF MICKELL
Court of the State of California, which could result

in a judgment against you.

California Code of Civil Procedure, Section 1033,

also requires us to inform you that such a judgment

awarded against you could not only include the principle due, but pre-judgment interest, court costs, and

attorney fees as well.

According to California Law, a judgment

awarded against you among other things, could

result in remedies such as Wage Garnishments,

Bank Account Levies, or Attachments of your

assets, as well as accrue interest at the legal rate

of 10% per year.

Demand is hereby made for immediate payment of

the balance in full. Please make out your check, or

money order, in the amount of 6837.35 payable to

The Law Office of Sidney Mickell. We also accept

payments by Visa and Mastercard. In the event this

office does not receive your payment in full, or

another arrangement is accepted by my client, we

will assume that you have chosen litigation, and

whichever of the above-mentioned legal remedies

that are reasonable and appropriate, to be our only

alternative.

Sincerely, 

/s

Sidney H. Mickell

BE ADVISED, THIS IS AN ATTEMPT TO COLLECT A DEBT BY A LEGAL DEBT COLLECTOR. ANY INFORMATION OBTAINED WILL

BE USED FOR THAT PURPOSE. AS REQUIRED

BY LAW, YOU ARE HEREBY NOTIFIED THAT

A NEGATIVE CREDIT REPORT REFLECTING

EVON v. LAW OFFICES OF MICKELL 8489
YOUR CREDIT RECORD MAY BE SUBMITTED

TO A CREDIT REPORTING AGENCY IF YOU

FAIL TO FULFILL THE TERMS OF YOUR

CREDIT OBLIGATION.

[10] “Whether conduct violates [§ 1692e] . . . requires an

objective analysis that takes into account whether ‘the least

sophisticated debtor would likely be misled by a communication.’ ” Donohue, 592 F.3d at 1030 (citation omitted). “The

objective least sophisticated debtor standard is ‘lower than

simply examining whether particular language would deceive

or mislead a reasonable debtor.’ ” Terran v. Kaplan, 109 F.3d

1428, 1431-32 (9th Cir. 1997) (citation omitted). Most courts

agree that although the least sophisticated debtor may be

uninformed, naive, and gullible, nonetheless her interpretation

of a collection notice cannot be bizarre or unreasonable. Wahl

v. Midland Credit Mgmt., Inc., 556 F.3d 643, 645 (7th Cir.

2009); see also Clomon v. Jackson, 988 F.2d 1314, 1319 (2d

Cir. 1993) (“[I]n crafting a norm that protects the naive and

the credulous the courts have carefully preserved the concept

of reasonableness.”); Campuzano-Burgos v. Midland Credit

Mgmt., Inc., 550 F.3d 294, 298 (3rd Cir. 2008) (“[T]he least

sophisticated standard safeguards bill collectors from liability

for ‘bizarre or idiosyncratic interpretations of collection

notices’ by preserving at least a modicum of reasonableness,

as well as ‘presuming a basic level of understanding and willingness to read with care [on the part of the recipient].’ ”

(citation omitted)). 

Evon’s primary arguments are that, to the least sophisticated debtor, the letter misstates that (1) judgment is inevitable; and (2) the judgment will result in the taking of all wages

or assets. 

With respect to Evon’s first argument, she cites Schimmel

v. Slaughter, 975 F.Supp. 1357 (M.D. Ga. 1997) in support.

There, an attorney sent a collection letter that included the following language:

8490 EVON v. LAW OFFICES OF MICKELL
I have ordered papers for suit. After judgment is

obtained, garnishment can be brought to satisfy judgment. 

Id. at 1360.

The court found that the most likely interpretation of the

unqualified statement “[a]fter judgment is obtained” is “that

a judgment against the debtor is a virtual certainty once suit

is filed.” Id. at 1363.

[11] Here, the statement does not say that legal action “will

result in a judgment against you,” which would come much

closer to the language held by the court in Schimmel to appear

to be a “virtual certainty” but rather says that legal action

“could result in a judgment against you.” (Emphasis added).

Use of the conditional language in this instance is appropriate,

accurate, and not misleading. 

As to Evon’s second argument, she relies on Oglesby v.

Rotche, No. 93 C 4183, 1993 WL 460841 (N.D. Ill. Nov. 5,

1993). The statement at issue in that case was:

THE COSTS OF THE LAWSUIT WILL BE

CHARGED TO YOU, ALONG WITH STATUTORY INTEREST. ONCE JUDGMENT HAS

BEEN ENTERED, IT IS OUR INTENT TO PROCEED WITH COURT ORDERED ATTACHMENT

AND GARNISHMENTS OF ALL WAGES, PROPERTY, AND OTHER FINANCIAL ASSETS, ALL

AT ADDITIONAL EXPENSE TO YOU.

Id. at *4.

The court rejected the debt collector’s argument that “all

wages, property, and other financial assets” could be reasonably understood to mean only “some wages, property, and

other financial assets” and that as written, the statement misEVON v. LAW OFFICES OF MICKELL 8491
represented the breadth of the garnishment and attachment

statutes. Id. at *8.

Here, Evon argues that the letter fails to include language

to make it clear that only a certain portion of a debtor’s wages

can be garnished7 and that certain types of property, specified

in Cal. Code. Civ. P. §§ 704.010, are exempt from judgment

executions and cannot be levied upon.8 Evon argues that here,

like the statement at issue in Oglesby, “garnishment of all

wages, levies of all bank accounts and/or attachment of all

assets is unavoidable once court action has been initiated —

an end result which could not lawfully happen.” But the statement Evon complains of does not say “all” and her argument

is an attempt to read that word into the language of the letter.

[12] Section 1692e prohibits only “false, deceptive, or misleading” representations. While the letter could have included

additional clarifying language, we do not believe that the language of the letter goes so far as to be considered false,

deceptive, or misleading. Accordingly, the district court did

not err in denying Evon’s motion for partial summary judgment with respect to liability on this claim. 

IV. Class Certification Ruling9

[13] Under Federal Rule of Civil Procedure 23, “[a] class

action may be maintained if two conditions are met: The suit

must satisfy the criteria set forth in subdivision (a) (i.e.,

7Under California law, the maximum amount of earnings which may be

garnished in satisfaction of a judgment is generally limited to 25 percent.

15 U.S.C. § 1673(a). 

8Examples of exemptions include the homestead and specified maximum dollar amounts for certain assets (motor vehicles, furniture, etc.). 

9Because we have concluded that Evon’s § 1692e claim does not give

rise to liability, the district court’s refusal to certify a class based on a violation of those claims is moot. Because we conclude that Evon’s

§ 1692c(b) claim may proceed, we limit our discussion to whether the district court erred in denying class certification of that claim. 

8492 EVON v. LAW OFFICES OF MICKELL
numerosity, commonality, typicality, and adequacy of representation), and it also must fit into one of three categories

described in subdivision (b).” Shady Grove Orthopedic

Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1437 (2010)

(internal quotation marks omitted).

(A) Standard of Review 

The decision to grant or deny class certification is within

the trial court’s discretion. Yamamoto v. Omiya, 564 F.2d

1319, 1325 (9th Cir. 1977). Thus, a district court’s order

denying a motion for class certification is reviewed for abuse

of discretion. Zinser v. Accufix Research Ins., Inc., 253 F.3d

1180, 1186 (9th Cir. 2001).

(B) Analysis

The proposed class is defined as follows: 

All consumers to whom, according to Defendants’

records, within one year prior to filing this action the

Defendants sent a collection letter at their place of

employment identical to or substantially similar to

the letter sent to [Evon].

(1) Numerosity

This requirement is met if the class is so large that joinder

of all members is impracticable. Fed.R.Civ.P. 23(a). 

The district court found that numerosity was satisfied

because there were 262 potential class members. Mickell does

not address this argument on appeal. The district court did not

abuse its discretion when it found this element satisfied. 

(2) Commonality

[14] This requirement is met if there are “questions of law

and fact common to the class.” Fed. R. Civ.P. 23(a). “Where

EVON v. LAW OFFICES OF MICKELL 8493
the circumstances of each particular class member vary but

retain a common core of factual or legal issues with the rest

of the class, commonality exists.” Parra v. Bashas’, Inc., 536

F.3d 975, 978-79 (9th Cir. 2008); see also Wal-Mart Stores

Inc., v. Dukes, ___ U.S. ___, 131 S. Ct. 2541, 2551 (2011)

(“What matters to class certification . . . is not the raising of

common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers

apt to drive the resolution of the litigation.”). 

The district court found that the commonality requirement

was “a close issue” but ultimately determined that fact questions existed that precluded finding it satisfied. The district

judge believed these fact questions were whether: (1) the

addresses on the letters were in fact business addresses; (2)

whether class members had consented to receiving debt collection communications at their workplaces; (3) whether class

members had specifically requested that debt collection communications not be sent to their workplaces.

[15] The seminal issue in this case is whether Mickell violated the FDCPA when he sent debt collection letters

addressed to the debtor, but in “care of” the debtor’s

employer, without first obtaining consent. That claim is a

common contention among the class and “determination of its

truth or falsity” is pivotal to this lawsuit and is capable of

determination “in one stroke.” Wal-Mart, 131 S.Ct. at 2551.

In addition, Wal-Mart recently clarified that

“[c]ommonality requires the plaintiff to demonstrate the class

members ‘have suffered the same injury.’ ” Id. quoting Gen

Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). The

class members here have all suffered the same injury—they

received a debt collection letter at their place of employment

without first giving their consent, in violation of the FDCPA.

As for the district court’s concerns regarding fact questions,

it is not clear that any individualized inquiry is necessary on

8494 EVON v. LAW OFFICES OF MICKELL
this issue. Mickell conceded that he sent letters to debtors at

their places of employment. Evon asserts that the addresses on

the 262 letters are business addresses. If the letters were sent

to the debtor, “care of” a business address, in light of Mickell’s admission, it is reasonable to assume that the 262 letters

were sent to the debtors’ workplaces. Even assuming that an

individualized inquiry is even necessary on this issue, it will

consist of a limited, straightforward factual determination that

would not preclude finding commonality. 

With regard to the argument that individual questions of

consent abound, this issue is a red herring. There is nothing

in the record that supports the district court’s finding that consent may be an issue in the case. Mickell produced nothing

showing that certain class members had consented to receipt

of the letters at work. 

The district court’s concern over whether class members

had specifically instructed Mickell not to contact them at

work was also unfounded. The issue in this case is that Mickell sent letters to class members’ workplaces without first

obtaining authorization. The class members do not have any

burden to show that they contacted Mickell and that he sent

a letter despite their request not to do so. While that may be

true for some class members, it is only peripherally relevant

to the critical issue in this lawsuit and therefore cannot defeat

the commonality inquiry. 

[16] This case presents the classic case for treatment as a

class action: that is, the commonality linking the class members is the dispositive question in the lawsuit. It is not necessary that members of the proposed class “share every fact in

common.” Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir.

2010). Thus, the district court abused its discretion in finding

that commonality was not satisfied.

(3) Typicality

[17] To demonstrate typicality, the putative class must

show that the named parties’ claims are typical of the class.

EVON v. LAW OFFICES OF MICKELL 8495
Fed.R.Civ.P. 23(a)(3). “The test of typicality ‘is whether other

members have the same or similar injury, whether the action

is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by

the same course of conduct.’ ” Hanon v. Dataproducts Corp.,

976 F.2d 497, 508 (9th Cir. 1992) (citation omitted). 

Mickell argued below and the district court agreed that the

typicality requirement is not satisfied because Evon’s claim is

subject to a unique bona fide error defense, specifically that

Evon explicitly instructed Mickell’s representative not to contact her at work and that Mickell mailed the letter to her workplace by accident. 

But Mickell does not qualify for the bona fide error defense

as a matter of law, and thus whether Evon’s claim is subject

to this affirmative defense cannot be a reason for finding that

the typicality requirement is not satisfied.

[18] To be eligible for the bona fide error defense, Mickell

would have to show that (1) he violated the FDCPA unintentionally; (2) the violation resulted from a bona fide error; and

(3) he maintained procedures reasonably adapted to avoid the

violation. McCullough v. Johnson, Rodenburg & Lauinger,

LLC, 637 F.3d 939, 948 (9th Cir. 2011). The record is clear

that Mickell intentionally sent letters to the workplaces of

putative class members and that he had no procedures in place

to discern a debtor’s consent prior to sending the letters.10

Thus, Mickell cannot avail himself of this affirmative defense.

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

LPA, 130 S.Ct. 1605, 1611-1612 (2010) (“[I]t is a fair inference that Congress chose to permit injured consumers to

10At Mickell’s deposition, the following exchange occurred: 

[Questioner]: Is it a policy to ask [the debtors] directly, “Can we

send you a letter at work?” 

Mickell: No. 

8496 EVON v. LAW OFFICES OF MICKELL
recover actual damages, costs, fees, and modest statutory

damages for ‘intentional’ conduct, including violations resulting from mistaken interpretation of the FDCPA.”); see also

Reichert v. Nat’l Credit Sys., 531 F.3d 1002, 1007 (9th Cir.

2008) (“A debt collector is not entitled under the FDCPA to

sit back and wait until a [mistake has been made] and then

institute procedures to prevent a recurrence.”). The district

court abused its discretion when it found a lack of typicality

based on this ground.

(4) Adequacy

[19] The named plaintiffs must fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a)(4). In making this determination, courts must consider two questions:

“(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the

named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Hanon, 150 F.3d at 1020. 

The district court found adequacy to be lacking and

believed this factor to be “particularly decisive” of the class

certification inquiry. The district court found that Evon was

not the “best representative” for the class, and that plaintiff’s

counsel was not qualified to represent the class. 

[20] As to the first issue, Mickell argues that because Evon

waived her actual damages claim, she is not an adequate class

representative. While Evon may have waived her actual damages claim, she is still able (and has) recovered statutory damages, fees and costs. That she has waived her actual damages

does not make her an inadequate representative; she still

maintains that the letter was sent to her employer in violation

of the FDCPA and thus shares an interest and injury with all

class members.

[21] As to the district court’s second finding, there is nothing in the record that supports the district judge’s conclusion

EVON v. LAW OFFICES OF MICKELL 8497
that Sergei Lemberg was not qualified to represent the class.

The judge viewed the case as an “attorney-driven action,” and

cited In re Hotel Telephone Charges, 500 F.2d 86, 91 (9th

Cir. 1974), for the proposition that because the only persons

likely to benefit from a class action in this case are class counsel, a costly and time-consuming class action is hardly the

superior method for resolving the dispute. 

In re Hotel Telephone Charges involved an estimated 40

million class members that were allegedly defrauded by the

owners of 600 hotels across the country by paying surcharges

on their hotel room rates. Id. at 86-87. The court found that

the plaintiffs’ claims “raise[d] individual questions that could

require decades of litigation” including the type of misrepresentation made and whether each individual plaintiff relied on

it. Id. at 89. Even assuming, the court said, that “only ten percent of the unknown class members came forward with

claims, . . . approximately one hundred years would yet be

required to adjudicate the claims.” Id. The court found that

certifying a class would be unmanageable and would produce

“no real benefit” (about two dollars to an individual plaintiff)

to class members. Id. at 90-92.

[22] This is not such a case. The FDCPA is a consumer

protection statute and was intended to permit, even encourage,

attorneys like Lemberg to act as private attorney generals to

pursue FDCPA claims. Moreover, plaintiffs have already benefitted and will continue to benefit from this case. Mickell

admits that he has ceased his practice of sending letters to

debtor’s workplaces, a benefit to all class members. Furthermore, certifying the class will serve a “deterrent” component

to other debt collectors who are engaging, or consider engaging in this type of debt collection tactic. Nor would recovery

be meaningless to the individual class members here, since

each would be eligible to receive the statutory maximum of

$1,000 in damages. In light of the FDCPA’s remedial goals,

these are important considerations and the district judge

abused his discretion by refusing to certify on this ground.

8498 EVON v. LAW OFFICES OF MICKELL
The district judge also faulted Lemberg for bringing the

class certification motion at the same time as the summary

judgment motion. Bringing a class certification motion

together with a Rule 56 motion is consistent with the Federal

Rules of Civil Procedure. See Vega v. Credit Bureau Enters.,

No. CIVA02CV1550DGTKAM, 2005 WL 711657 (E.D.N.Y.

March 29, 2005); In re Risk Mgmt. Alts., Inc., Fair Debt Collection Practices Litigation, 208 F.R.D. 493 (S.D.N.Y. 2002);

Goldberg v. Winston & Morrone, P.C., No. 95 Civ. 9282,

1997 139526 (S.D.N.Y. March 26, 1997)). While Rule 23

does not require a district court to fully consider the merits of

the plaintiffs’ claims, addressing the merits of the claims in a

related summary judgment motion can have a substantial

bearing on the required Rule 23 determinations. Simultaneously filing motions for summary judgment and class certification is certainly acceptable. The district court abused its

discretion when it refused to certify for this reason.

[23] In sum, the district court abused its discretion in concluding that numerosity, commonality, typicality, and adequacy were lacking in this case. Because the district judge did

not reach the Rule 23(b) factors, we remand for consideration

of whether any one of the Rule 23(b) factors is satisfied.

V. Attorney’s Fees 

Pursuant to the Rule 68 offer Evon accepted, Mickell

agreed to pay Evon’s reasonable and necessary attorney’s fees

and costs, to be determined by the court. Evon sought $91,474

in attorney’s fees and $2,942 in litigation costs. Mickell

opposed the fees application, primarily arguing that the number of hours billed was unreasonable. 

The district judge recognized that Evon received an award

but found that the case had merely “nuisance value.” He further found that the “level of success achieved was next to

zero” and that the hours Evon’s attorney spent on the case

were excessive and avoidable. He therefore denied recovery

EVON v. LAW OFFICES OF MICKELL 8499
for all but the amount of time necessary to draft Evon’s complaint. 

(A) Standard of Review

We “review the award or denial of attorney’s fees for abuse

of discretion, but any elements of legal analysis and statutory

interpretation which figure in the district court’s decision are

reviewable de novo.” Coalition for Clean Air v. Southern California Edison Co., 971 F.2d 219, 229 (9th Cir. 1992). We

“will reverse if the district court misperceives or misapplies

the law governing fee awards.” Id.

(B) Analysis

[24] The FDCPA provides that any debt collector who fails

to comply with its provisions is liable “in the case of any successful action . . . [for] the costs of the action, together with

a reasonable attorney’s fee as determined by the court.” 15

U.S.C. § 1692k(a)(3). The FDCPA’s statutory language

makes the award of fees mandatory. Bridgeport v. Camacho,

523 F.3d 973, 978 (9th Cir. 2008). “The reason for mandatory

fees is that congress chose a ‘private attorney general’

approach to assume enforcement of the FDCPA.” Id. (quoting

Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir. 1995)).

[25] The district judge focused on the case’s supposed lack

of merit and on the nominal value of the judgment obtained

to the exclusion of other factors in the “lodestar” calculation.11

11“The ‘lodestar’ is calculated by multiplying the number of hours the

prevailing party reasonably expended on the litigation by a reasonable

hourly rate.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.

1996). After computing the “lodestar,” the district court may then adjust

the figure upward or downward taking into consideration twelve “reasonableness” factors: 

(1) the time and labor required, (2) the novelty and difficulty of

the questions involved, (3) the skill requisite to perform the legal

8500 EVON v. LAW OFFICES OF MICKELL
As to the supposed lack of merit, Evon’s suit resulted in

Mickell abandoning his practice of sending debt collection

letters to debtors’ workplaces. Thus the lawsuit has already

achieved a significant level of success. 

Moreover, although Evon settled the case for a relatively

small amount ($1010.99), she recovered the full amount of

allowable statutory damages. This represents a complete

recovery under the statutory scheme. In Joe v. Payco-General

Am. Credits, No. 94-15338, 1994 WL 465841, (9th Cir.

1994), an unpublished disposition, Payco-General appealed

the district court’s award of reasonable attorney’s fees and

costs for an FDCPA violation. Payco-General argued that

because Joe only won a nominal award ($1,001), reasonable

attorney’s fees were not warranted. Id. at *1. The court disagreed stating that Joe “was completely successful in this

action to hold Payco-General responsible for its [statutory]

violations” and was thus the “prevailing party” and entitled to

reasonable attorney’s fees. Id. (Emphasis added).

Furthermore, while the amount of damages recovered is

relevant to the amount of attorney’s fees awarded, it is only

one of several factors that a court must consider in determining the fee award. See City of Riverside v. Rivera, 477 U.S.

561, 574 (1986). We have specifically instructed that “courts

should not reduce lodestars based on relief obtained simply

because the amount of damages recovered on a claim was less

service properly, (4) the preclusion of other employment by the

attorney due to acceptance of the case, (5) the customary fee, (6)

whether the fee is fixed or contingent, (7) time limitations

imposed by the client or the circumstances, (8) the amount

involved and the results obtained, (9) the experience, reputation,

and ability of the attorneys, (10) the “undesirability” of the case,

(11) the nature and length of the professional relationship with

the client, and (12) awards in similar cases. 

Morales, 96 F.3d at 363 n.8 (quoting Kerr v. Screen Guild Extras, Inc.,

526 F.2d 67, 70 (9th Cir. 1975)). 

EVON v. LAW OFFICES OF MICKELL 8501
than the amount requested.” Quesada v. Thomason, 850 F.2d

537, 539 (9th Cir. 1988). Moreover, in City of Riverside, the

Supreme Court, in the context of civil rights statutes,

expressly rejected the proposition that fee awards must be in

proportion to the amount of damages recovered. See City of

Riverside, 477 U.S. at 574 (affirming fee award of

$245,456.25 when damages recovered were $13,300). The

same is true in consumer protection cases: where the monetary recovery is generally small, requiring direct proportionality for attorney’s fees would discourage vigorous enforcement

of the consumer protection statutes.

Lastly, while the award here was small, that is not necessarily controlling because “an award of nominal damages can

represent a victory in the sense of vindicating rights even

though no actual damages are proved.” Farrar v. Hobby, 506

U.S. 103, 121 (1992) (O’Connor, J., concurring). That the

lawsuit spurred Mickell to cease unlawful conduct is an

important consideration, see id., that the district court failed

to recognize. 

[26] The district court provided no meaningful explanation

for the final number of hours it allowed; we therefore remand

for a proper lodestar calculation. See McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009); Tutor–Saliba

Corp. v. City of Hailey, 452 F.3d 1055, 1065 (9th Cir. 2006).

VI. Reassignment

Lemberg requests reassignment to a different judge. In

determining whether reassignment is proper, we consider: 

(1) whether the original judge would reasonably be

expected upon remand to have substantial difficulty

in putting out of his or her mind previouslyexpressed views or findings determined to be erroneous or based on evidence that must be rejected, (2)

whether reassignment is advisable to preserve the

8502 EVON v. LAW OFFICES OF MICKELL
appearance of justice, and (3) whether reassignment

would entail waste and duplication out of proportion

to any gain in preserving the appearance of justice.

United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979).

“The first two of these factors are of equal importance, and a

finding of one of them would support a remand to a different

judge.” United States v. Sears, Roebuck & Co., 785 F.2d 777,

780 (9th Cir. 1986). 

We recognize that the unusual circumstances necessary for

remand to a different judge “rarely exist,” Glen Holly Entm’t,

Inc. v. Tektronix, Inc., 352F.3d 367, 381 (9th Cir. 2003). We

believe, however, that they are present here. 

As we review the record below, we are struck by the district judge’s forceful statements: the case was “unnecessary,”

a “waste of time,” “not worth a dime,” and “should never

have been filed.” Indeed, the record reflects an unfortunate

dismissive attitude by the district judge both toward Lemberg

and the class Evon seeks to represent.

[27] Because we reverse the district court’s summary judgment on whether Mickell’s practice constitutes a violation of

the FDCPA and reverse on the motion for class certification,

we doubt, based on the district judge’s comments, that he will

be able to put the views he has repeatedly expressed out of his

mind. Thus, we conclude that reassignment to a different

judge under the first Arnett factor is appropriate. Further,

because the district court has openly stated that this case is

worthless, remand under the second Arnett factor is appropriate as well. See United States v. Reyes, 313 F.3d 1152, 1159-

60 (9th Cir. 2002) (reassigning the case under the “appearance

of justice” factor where district judge openly stated that he

believed the defendants were attempting to manipulate the

system).

EVON v. LAW OFFICES OF MICKELL 8503
VII. Sanctions

Mickell appeals the district court’s imposition of sanctions

against him. The district court, exercising its inherent authority, see Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991),

imposed sanctions against Mickell in the amount of $1,260

for violating his own protective order and failing to seal and

redact his client’s confidential documents. 

(A) Background 

Mickell’s attorney, John Dahlberg, obtained a protective

order marking certain documents “confidential.” In filing the

class certification motion and partial summary judgment

motions, Dahlberg, running up against the filing deadline,

filed documents without sealing or redacting them, exposing

to public view certain material that had been designated “confidential” under the protective order. Evon sought sanctions

and the district court granted her motion because of Dahlberg’s error. 

Mickell argues that the violation of the protective order was

inadvertent, that the district court found as much, and thus,

the court lacked inherent authority to impose sanctions. 

(B) Applicable Standards 

District courts have the inherent power to sanction a lawyer

for a “full range of litigation abuses.” Chambers, 501 U.S. at

55. A district court’s findings in a sanctions case are “given

great deference.” F.J. Hanshaw Enters., Inc., v. Emerald

River Dev. Inc., 244 F.3d 1128, 1136 (9th Cir. 2001); see also

Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1411 (9th Cir.

1990) (“A determination that an order was disobeyed is entitled to considerable weight because a district judge is the best

equipped to assess the circumstances of the noncompliance.”) (internal quotation marks and citations omitted). 

8504 EVON v. LAW OFFICES OF MICKELL
(C) Analysis 

In Fink v. Gomez, 239 F.3d 989, 991-93 (9th Cir. 2001), we

held that a district court may levy sanctions pursuant to its

inherent power for “willful disobedience of a court order . . .

or when the losing party has acted in bad faith, vexatiously,

wantonly, or for oppressive reasons.” Id. at 989 (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980)).

“[S]anctions are available if the court specifically finds bad

faith or conduct tantamount to bad faith.” Id. at 994.

Dahlberg argues that the district court made no such finding and even accepted Dahlberg’s explanation that the violation was “inadvertent.” 

We agree that the district judge never made a finding of

bad faith or conduct tantamount to bad faith and that the district judge said that he understood that Dahlberg’s conduct

was “inadvertent.” However, the judge also made an explicit

finding that notwithstanding Dahlberg’s explanation, he still

violated his own protective order, a fact which Dahlberg does

not dispute.

Thus, it is clear that a “willful” violation of a court order

does not require proof of mental intent such as bad faith or an

improper motive, but rather, it is enough that a party acted

deliberately. 

The language in Fink makes clear that a district court has

the inherent power to sanction for: (1) willful violation of a

court order; or (2) bad faith. A determination that a party was

willfully disobedient is different from a finding that a party

acted in bad faith. Either supports the imposition of sanctions.

Here, Dahlberg knew that the protective order was in place

and that filing without redacting the confidential information

constituted a violation. Sanctions are especially appropriate in

this case because Dahlberg, himself, sought the protective

EVON v. LAW OFFICES OF MICKELL 8505
order, making, as the district court said, the plaintiff “jump

through hoops” to comply. Dahlberg characterizes the failure

to comply with the sanctions order as “inadvertent” but what

he really means is that on the day of the filing, he realized that

compliance with the protective order would cause him additional time and work, and he chose not to comply. 

[28] A lawyer cannot seek an order requiring opposing

counsel to comply with the order, but then violate it, himself,

with impunity. The award of attorney’s fees for Dahlberg’s

failure to obey his own protective order was an appropriate

remedy. The district court was well within its discretion to

impose sanctions against Dahlberg.12

VIII. CONCLUSION

We reverse the district court’s grant of summary judgment

to Mickell on the issue of whether Mickell’s act of sending

“care of” letters to debtors’ employers violates the FDCPA

and we also reverse the denial of class certification on that

issue. We affirm the district court’s grant of summary judgment to Mickell on the issue of whether the contents of the

letter violates the FDCPA. We affirm the sanctions award.

We remand for consideration of whether the Rule 23(b) fac12Lemberg argues that the district court’s sanctions award did not adequately compensate him for the time spent in complying with the protective order. Dahlberg responds that Lemberg’s failure to file a notice of

cross appeal amounts to a waiver of this argument. But, because “the

requirement of a notice of cross-appeal is a rule of practice, which can be

waived at the court’s discretion” Lemberg’s failure to file a notice of cross

appeal does not act as an automatic jurisdictional bar to the court’s consideration of his request. Mendocino Envtl. Ctr. v. Mendocino County, 192

F.3d 1283, 1298 (9th Cir. 1999). However, Dahlberg never waived the

protective order, but instead accidentally violated it, and thus Lemberg’s

compliance remained mandatory. In addition, there is nothing to suggest

that a sanctions award had to directly correlate with the additional time

Lemberg spent on this task. The district court has wide discretion in crafting a sanctions award and the district court’s nominal reduction of which

Lemberg complains was not an abuse of discretion. 

8506 EVON v. LAW OFFICES OF MICKELL
tors are satisfied and for a proper lodestar calculation of attorney’s fees. Evon shall recover the costs of her appeal. 

AFFIRMED IN PART, REVERSED IN PART and

REMANDED with instructions that the case be reassigned on

remand.

NOONAN, Circuit Judge, dissenting:

Debt collectors have never been popular. Nonetheless they

perform a necessary societal function. The Federal Reserve

estimates that in the United States today unpaid consumer

debts amount to over two and one-half trillion dollars. http://

www.federalreserve.gov/realeases/g19/Current/. If debts are

not paid, credit will dry up. To keep our debt-prone society

functioning, we must respect the rights of the debt collector.

The statute at issue here is precise. The text is set out in the

majority opinion. After setting out the text, the majority

ignores it to create a statute more to its taste.

The text itself forbids “a debt collector” to “communicate,

in connection with the collection of any debt, with any person

other than the consumer, his attorney, a consumer reporting

agency if otherwise permitted by law, the creditor , the attorney of the creditor, or the attorney of the debt collector.” The

critical verb is “communicate.” 

The majority supposes that a debt collection letter

addressed to a debtor at his place of employment is a communication made to an indefinite number of persons in the

employer’s business: Mickell “knew or could reasonably

anticipate that a letter sent to a class member’s employer

would be opened and read by someone other than the debtor.”

This flat factual statement is offered by the majority without

reference to any authority. Is there a general rule that letters

EVON v. LAW OFFICES OF MICKELL 8507
to a person in care of the person’s employer will be opened?

Nothing in my experience suggests that such is the rule or

common practice in the United States. The majority invents

a custom to confirm its conclusion.

It is additionally doubtful that a letter addressed to A but

opened by B can be described as a communication to B. Communications are purposeful. What is written to be read by A

is not a communication to B.

A comparison of the majority’s holding in this case with

what the majority cites from the Staff Commentary of the

Federal Trade Commission illustrates how far the majority

departs from any existing authority in its ban on collection letters in care of a business address. The majority completes its

case by endorsing a reductio ad absurum offered by Evon:

What would prevent a collector from sending a collection letter in care of a parent or neighbor? The answer is: common

sense. When business practice defects from common sense, it

will be time to take seriously the majority’s hypothetical.

The defective class. The majority reverses the district court

and holds Evon to be an adequate representative of a class of

allegedly abused debtors. The class is comprised of persons

like Evon who have been sent collection letters in care of their

employers. They have no better case than Evon. The class has

not been injured.

Attorney’s fees. As a corollary of reversing the judgment of

the district court, the majority invites it to enhance the award

of attorney fees. As a corollary of my dissent, I conclude that

remand on this point is unnecessary.

Reassignment. The majority acknowledges that unusual circumstances justifying reassignment to a different district

judge rarely exist, but nonetheless make the reassignment

here, taking the trial judge to task for his comments on the

8508 EVON v. LAW OFFICES OF MICKELL
character of this lawsuit. I cannot join in this reassignment or

in the assessment of the care exercised by the district judge.

EVON v. LAW OFFICES OF MICKELL 8509