« Law - More on Florida Schiavo case | Main | Environment - Indiana air board meeting turns contentious today »

Wednesday, September 01, 2004

Indiana Decisions - 7th Circuit Posts Four Today

Republic Tobacco Co v. North Atlantic Trading Co. (ND Ill.)

Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
FLAUM, Chief Judge. This appeal involves the claims that two competing tobacco companies brought against one another—one company suing for violation of antitrust laws, the other for defamation. North Atlantic Trading Co., Inc. (“North Atlantic”) was upset when its efforts to engage new markets for its cigarette papers proved unsuccessful. It blamed its difficulties in cultivating new customers on the business practices of its competitor, Republic Tobacco Company (“Republic”) and decided to sue. The hard feelings went both ways --Republic became upset with North Atlantic after North Atlantic criticized Republic’s business practices in two letters sent to customers. Claiming that it had been defamed (among other things), Republic also decided to sue. * * *

[35 pages later] III. Conclusion. For the reasons given in this opinion, we AFFIRM the district court’s grant of summary judgment to Republic on its defamation claim and North Atlantic’s antitrust claims. We AFFIRM the district court’s decision with respect to Republic’s cross-appeal. We VACATE the district court’s remitted damages award and order entry of judgment for $1 million in presumed damages and $2 million in punitive damages.

Boykov, Valentin v. Ashcroft, John D. (Petition for Review of an Order of the Board of Immigration Appeals)

Nigussie, Abel M. v. Ashcroft, John D (Petition for Review of an Order of the Board of Immigration Appeals)

Gutierrez, Francis v. AT&T Broadband, LLC (ND Ill.)

Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit Judges.
KANNE, Circuit Judge. * * * [B]ecause “AT&T Cable Services” and “AT&T Broadband” were not registered assumed names of Chicago Cable under Illinois law and not registered service marks under federal trademark law, Rydel complains that he had no means of identifying his true creditor, resulting in the mistake in state court where he wrongly filed against Corporate Broadband. * * *

Rydel argues vigorously that because Chicago Cable failed to register “AT&T Cable Services” or “AT&T Broadband” as assumed names as required by Illinois law and failed to register “AT&T Broadband” as a service mark until after this litigation was initiated, it was using those names illegally. Because the names were illegal, Rydel claims that Chicago Cable’s use of those names in its debt collection contacts with him was a per se violation of § 1692e. Rydel further argues that a rule allowing an illegal name to be used in debt collection, even if the name has been used by the creditor since the inception of its relationship with the debtor, creates a bad result, when, as here, because of the illegal name, the debtor then has trouble identifying his true creditor.

Without passing on whether Chicago Cable’s use of such names was actually illegal, we cannot accept either argument here (although Rydel’s latter argument attracts some sympathy, especially when a corporation’s structure is as labyrinthine as AT&T Corp.’s). This is because the FDCPA’s focus is not on whether the name used by the creditor is permitted by law, but on whether the name used results in the debtor’s deception in terms of what entity is trying to collect his debt. Again, for a creditor to be liable under § 1692e, its use of a name other than its own must “indicate that a third person is collecting or attempting to collect” the consumer’s debt. 15 U.S.C. § 1692a(6). In this case Chicago Cable consistently represented itself as “AT&T Cable Services” throughout its dealings with Rydel; no deception as to what entity was trying to collect his debt occurred. Thus, summary judgment was properly granted on Rydel’s § 1692e claim.

III. Conclusion. For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of AT&T Broadband, LLC and Communications and Cable of Chicago, Inc.

DIANE P. WOOD, Circuit Judge, dissenting. While it is entirely possible that Francis Gutierrez and Joseph Rydel may ultimately lose in their effort to prove that the defendants committed violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (FDCPA), in my opinion there are disputed issues of material fact that render summary judgment in favor of the defendants inappropriate at this time. This is true even taking the record as my colleagues do. Unlike them, however, I would find that the district court abused its discretion in refusing to permit the plaintiffs to conduct further discovery when AT&T pulled key affidavits out of its hat at the last minute. Indeed, throughout the pretrial proceedings, AT&T’s approach to the case was deplorable. It played a shell game with its various corporate affiliates, forcing the plaintiffs to guess which entity was doing what at each moment. To this day, I am not sure myself. * * *

Posted by Marcia Oddi on September 1, 2004 12:34 PM
Posted to Indiana Decisions