Mrs. Schnauzer and I sued Pennsylvania-based debt collector NCO and Birmingham-based law firm Ingram & Associates for multiple FDCPA violations over a debt we allegedly owed to American Express. Since then, we've gotten quite an eyeful of the tactics debt collectors (and their lawyers) will use to hide their unsavory activities.
Join us on a brief trip down "Debt Collector Pathology Highway," a road that many American consumers are traveling these days. And our travelogue won't even include a stop at the "Cheat the Debtor's Wife Out of Her Job" roadside bar, which we visited in a recent post.
First, lawyers for NCO proposed that we join them in a "Stipulated Confidentiality Agreement." (See the full document below.) Among these lawyers was the one (Bryan Shartle) who, after our recent depositions, told one of our attorneys that our case was "the weakest FDCPA case he had ever seen," he would seek to have it dismissed with costs charged to me, and I would be imprisoned if I could not pay the costs.
You probably will not be surprised to learn that I instructed our attorneys to tell Mr. Shartle & Co. that they could take their confidentiality agreement and stick it in a certain body orifice.
What was the purpose of the confidentiality agreement? This item sums it up:
A Party to this Agreement may designate materials as “CONFIDENTIAL” to the extent that the Party, through counsel, believes such materials are confidential because they include: confidential business or technical information; trade secrets; proprietary business methods or practices; or personal information regarding plaintiffs or any of Defendant’s current or former agents or employees.The first thing you notice is that this proposal is one-sided. We don't have any "trade secrets" or "proprietary business methods" to hide. And we could not care less about whatever personal information the defendants think might cause us embarrassment.
In other words, the proposed agreement is designed totally to protect the defendants--and that's because they have something to hide. It does nothing for us--and that's because we don't have anything to hide.
The second thing that occurs to you is that the main point of the agreement probably is to keep me from blogging about the defendants' dirty deeds. In other words, if they turn over information that shows how they cheated us, they certainly do not want other consumers learning about it through reading Legal Schnauzer.
Defendants should be concerned about that--particularly because they clearly were violating the law. I do, indeed, intend to write about every aspect of the case on this blog. That's something scoundrels of all types should keep in mind these days--technology now allows regular folks to spread word about various misdeeds around the world. And scoundrels might be surprised to learn that some blogs, like this one, have a pretty wide readership.
It's always paid to conduct business in an honest fashion. But it's particularly true now that the Web allows most anybody to become an investigative journalist. Apparently word about that has not gotten to outfits like NCO and Ingram & Associates. And it probably never occurred to them that some of their targets really are investigative journalists.
My understanding is that courts will sometimes fashion confidentiality agreements--and if that happens, so be it. But we are not blindly agreeing to a one-sided document. And we strongly suspect that defendants want to declare material as "confidential" when it is not.
That seems clear from their answers to our discovery. Here are a few key items we have requested in discovery:
* All documents and communications regarding our account between the defendants, NCO and Ingram & Associates;
* All documents and communications regarding our account between the defendants and the original creditor, American Express;
* All documents and communications regarding our account between the defendants and any third parties;
* Any contracts and other agreements between the defendants;
* Any contracts and other agreements between the defendants and American Express;
* All e-mails between defendants, and with any third parties, regarding us and our account;
* Training materials used by the defendants.
So far, defendants have refused to turn over all of this information, and I imagine we will have to file a motion to compel with the court. I don't pretend to be an expert on discovery matters, but it seems pretty clear that we are entitled to receive all of this information. It also seems clear that defendants are withholding it because it reveals the unlawful and sleazy business practices they use--not only with us, but probably with hundreds of thousands of other consumers.
Recall, that defendants' proposed confidentiality agreement wanted to protect only materials that were "trade secrets," "technical information," "proprietary business methods," etc.
The training materials are the only item that could be considered proprietary. And if they reveal that the companies intentionally train their employees to violate the law, it goes directly to the heart of our case.
Despite defendants' stonewalling efforts, we have received some fascinating information from them. In fact, NCO turned over information that absolutely proves our case against them--and proves that Ingram & Associates acted in a fraudulent manner in our case. In some instances, NCO makes statements that directly contradict statements made by Ingram & Associates. How delightful.
It's good stuff, and those documents will be coming soon. But first, let's take a look at the proposed confidentiality agreement, the one we hope currently resides in a deep, dark place.
As you read this, you might recall our friend Bryan Shartle. If our case is, indeed, "the weakest FDCPA case he's ever seen," why is his client, NCO, so concerned about keeping items confidential. Methinks Mr. Shartle, like so many other members of his "profession," is full of horse manure:
NCO Confidentiality Agreement