JAMES WARE, District Judge.
Plaintiffs
Presently before the Court are the parties' Cross-Motions for Summary Judgment.
Since the facts of this case are largely undisputed, the Court provides them as necessary in the discussion below. The Court reviews the case's procedural history to provide some context for these Motions.
This case is a consolidated case between del Campo v. Kennedy, Case No. 01-21151 JW and Medina v. Mealing, Case No. 03-2611 JW. In the original suit, Plaintiff del Campo filed a class action against the Defendants for violations of her Due Process rights pursuant to Section 1983 and the California Constitution article I, section 7. Plaintiff del Campo also alleged violations of the FDCPA and the California UCL. Upon Defendants' motion, the Court dismissed del Campo's Section 1983 and California Constitution causes of action with prejudice based on her failure to state a claim. In Medina v. Mealing, Plaintiff Medina also filed a class action against the Defendants for violations of Section 1983 and the California Constitution. On February 1, 2006, the Court consolidated Plaintiffs' cases into the present action. (Order Granting Motion to Consolidate Case, Docket Item No. 161.)
On December 5, 2006, 491 F.Supp.2d 891 (N.D.Cal.2006), the Court dismissed with prejudice all of Plaintiffs' federal claims for violations of their due process rights pursuant to Section 1983 and the California Constitution, and dismissing District Attorney George Kennedy from the case.
On December 3, 2008, 254 F.R.D. 585 (N.D.Cal.2008), the Court granted Plaintiffs' Motion for Class Certification.
On February 9, 2010, the Court approved the parties' Second Amended Joint Submission of Class Notice Plan. (Docket Item No. 819.) On March 11, 2010, Plaintiffs filed a report informing the Court that notices were sent to 179,241 class members. (Docket Item No. 859.)
Summary judgment is proper "if 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 judgment as a matter of law." Fed. R.Civ.P. 56(c). The purpose of summary judgment "is to isolate and dispose of factually unsupported claims or defenses." Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying the evidence which it believes demonstrates the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The non-moving party must then identify specific facts "that might affect the outcome of the suit under the governing law," thus establishing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e).
When evaluating a motion for summary judgment, the court views the evidence through the prism of the evidentiary standard of proof that would pertain at trial. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court draws all reasonable inferences in favor of the non-moving party, including questions of credibility and of the weight that particular evidence is accorded. See, e.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). The court determines whether the non-moving
Although the district court has discretion to consider materials in the court file not referenced in the opposing papers, it need not do so. See Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 (9th Cir.2001). "The district court need not examine the entire file for evidence establishing a genuine issue of fact." Id., at 1031. However, when the parties file cross-motions for summary judgment, the district court must consider all of the evidence submitted in support of both motions to evaluate whether a genuine issue of material fact exists precluding summary judgment for either party. The Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir.2001).
Defendants move for summary judgment on the grounds that Defendants Mealing and Hasney cannot be held liable under the FDCPA because (1) the FDCPA did not apply to ACCS' activities as a private contractor implementing a bad check diversion program,
Defendants contend that the 2006 Amendment to the FDCPA clarifies that private contractors like ACCS who meet specific conditions and act solely as the agents of the prosecuting attorney in administering bad check programs are exempt from liability under the statute.
The Court has found in two prior Orders that ACCS was a private actor attempting to take action to collect a debt against private individuals in order to compensate third party creditors, and thus,
The 2006 Amendment to the FDCPA provides that if certain procedural safeguards are met, a private entity operating a pretrial diversion program for alleged bad check offenders shall be excluded from the definition of a debt collector. 15 U.S.C. § 1692p.
As an initial matter, there is no indication in the statutory language that the exemption provided in Section 1692p applies retroactively. See Schwarm v. Craighead, 552 F.Supp.2d 1056, 1069 (E.D.Cal.2008) ("With § 1692p, defendant cannot overcome the presumption against retroactive application of statutes because neither the statute nor its brief legislative history suggest that Congress intended the statute to apply retroactively."). Thus, the Amendment is only relevant as far is it provides insight into Congress' intent with regard to the status of private contractors operating diversion programs at the time of the FDCPA's passage. To that end, the Court finds that Section 1692p's enumeration of multiple specific criteria that a check collector must satisfy to qualify for the exemption demonstrates that Congress did not merely intend to clarify a previously held understanding that private contractors operating diversion programs are not debt collectors within the meaning of the statute. Instead, the statute's inclusion of numerous procedural safeguards illustrates Congress' intent to create a new framework that recognizes the role of private entities in operating diversion programs while protecting consumers from abusive practices.
Since Section 1692p does not apply retroactively and does not evidence congressional intent to generally exclude private contractors operating diversion programs from the FDCPA's definition of debt collector, the Court finds that Congress' enactment of the Amendment does not impact the Court's prior finding that ACCS was a debt collector subject to the FDCPA.
Defendants contend that Defendants Mealing and Hasney were not debt
At issue is whether individual Defendants can be held liable for violating the FDCPA without a showing that they are alter egos of ACCS.
In its December 5, 2006 Order, the Court directly addressed Defendants' contention that the individual Defendants could not be held liable because Plaintiff del Campo did not allege sufficient facts to pierce the corporate veil. (Dec. 5, 2006 Order at 903-04.) Despite the Court's clear ruling on the issue as a matter of law, Defendants renew their contention in the present motion in asserting that Plaintiffs have failed to raise a triable issue that any individual Defendant is an alter ego of ACCS. As in its prior Order, the Court here follows the numerous courts that have held that under the plain language of the FDCPA, an individual can be considered a "debt collector" and be held personally liable without piercing the corporate veil if the individual materially participated in the debt collection activities.
While the Court acknowledges that there is a split of authority on the issue of individual liability of corporate officers and directors under the FDCPA, there has been no change in the law since the Court issued its December 5, 2006 Order that would lead the Court to reconsider its prior holding and adopt the Seventh Circuit's view. See, e.g., White v. Goodman, 200 F.3d 1016, 1019 (7th Cir.2000). Thus, the Court finds that individual Defendants may be liable for violating the FDCPA
At issue is whether there is a triable issue of fact as to whether Defendants Mealing and Hasney materially participated in the debt collection activities of ACCS, and thus may be held individually liable under the FDCPA.
Courts have found individuals personally liable as debt collectors under the FDCPA when they (1) materially participated in collecting a debt,
Plaintiffs present the following evidence, inter alia, that Defendant Mealing was sufficiently involved in ACCS' debt collection activities to subject him to FDCPA liability: (1) an interrogatory answer stating, in reference to Defendant Mealing's activities during the 1997-2004 class period,
(2) Defendant Mealing's declaration in Hamilton v. American Corrective Counseling Services, Inc.
In response, Defendants present the following evidence to show that as of December 1997, Defendant Mealing's involvement in ACCS was minimal:
The Court finds that it is undisputed that Defendant Mealing was the highest ranking officer in ACCS until 2002, and
The Court finds that by any of the three measures outlined above, Defendant Mealing was a debt collector as defined by the FDCPA: he materially participated in collecting debt by occupying a position of critical importance to ACCS' business; as the CEO and primary shareholder in ACCS, he exercised control over the affairs of a debt collection business; and he was regularly engaged, albeit more often indirectly than directly, in the collection of debts through his involvement in ACCS' affairs. There is no requirement under the FDCPA that a debt collector must be the contact point between the company and the debtor—indirect participation in the debt collection process is sufficient. However infrequent or arm's length his involvement in the Company, the evidence unequivocally demonstrates that Defendant Mealing continued to play a key role in maintaining and expanding ACCS' debt collection activities throughout the class period.
Accordingly, the Court finds that Defendant Mealing may be held individually liable for violating the FDCPA.
Plaintiffs present the following evidence, inter alia, that Defendant Hasney was sufficiently involved in ACCS' debt collection activities to subject her to FDCPA liability: (1) Defendant Hasney's declaration that her duties "were to oversee ACCS' operations as a whole inclusive of the education department";
It is undisputed that next to Defendant Mealing, Defendant Hasney occupied the highest position of authority in ACCS. Defendant Mealing himself declared that he treated Defendant Hasney as his "business partner." (Mealing Opp'n Decl. ¶ 109 (emphasis in original).) Although Defendant Hasney did not herself perform the day-to-day debt collection activities of the company, the employees who did reported to her directly. It is further undisputed that Defendant Hasney was primarily responsible for the company's financial well-being and growth, without which none of ACCS' debt-collection activities would be possible.
Since the FDCPA explicitly includes those who indirectly participate in debt collection activities within the definition of debt collector, Defendant Hasney cannot insulate herself from FDCPA liability by pointing to the layers of mid-level managers between her and the front line employees who carry out the company's day-to-day operations. Shielding executives like Defendant Hasney from liability while holding accountable low-level workers who are merely carrying out the directives of those executives would fly in the face of the FDCPA's goal of eliminating abusive debt-collection practices.
The Court finds that by any of the three standards outlined above, Defendant Hasney was a debt collector as defined by the FDCPA: she materially participated in collecting debt through her involvement in ACCS' high-level day-to-day activities; as company CFO and the individual charged with overseeing all of ACCS' operations, she exercised control over the affairs of a
Accordingly, the Court finds that Defendant Hasney may be held individually liable for violating the FDCPA.
Plaintiffs contend that Inc. is directly liable for any FDCPA violations from December 1, 2000, the date of its formation, through the sale of ACCS on November 10, 2004 because it provided restitution services to ACCS through a newly-formed partnership. (Plaintiffs' Motion at 18.) Defendants contend that Inc. had no direct involvement with any ACCS operations, and that its sole business purpose was to finance start-up businesses. (Defendants' Opposition at 15.)
It is undisputed that at all relevant times, Defendant Mealing was the President of Inc., which is a Subchapter S corporation owned by an Employee Stock Ownership Plan ("ESOP") of which Defendant Mealing is the sole beneficiary. (Mealing Opp'n Decl. ¶¶ 151, 180.) It is also undisputed that Defendant Mealing formed Inc. in 2000, and Inc. subsequently entered into a general partnership with another Subchapter S corporation, which is owned by an ESOP of which Defendant Hasney is the sole beneficiary. (Id. ¶ 180.) The general partnership was called Fundamental Performance Strategies ("FPS"). (Id.) Inc. had no direct relationship with ACCS. (Id. ¶ 150.) FPS, however, had a contractual relationship with ACCS which required FPS to provide services connected with such matters as ACCS litigation defense coordination, and legislative strategy and coordination. (Id. ¶ 155.) FPS was compensated by ACCS in exchange for the services it provided, and Inc. received revenue as a partner in FPS. (Id.)
On December 1, 2000, Defendant Mealing entered into a full-time employment contract with Inc., requiring Defendant Mealing to perform services including: (1) marketing analysis, (2) program design and development, (3) program marketing, and (4) lobbying.
Since there is no evidence that Inc. had a direct contractual relationship with ACCS, or directly provided services to ACCS relating to debt collection, the Court cannot find as a matter of law that Inc. was a debt collector as defined by the FDCPA. However, the evidence unequivocally shows that Defendant Mealing entered into a full-time employment contract
Accordingly, the Court DENIES the parties' cross-motions to adjudicate Inc.'s FDCPA liability.
Having determined the various Defendants' respective potential liability under the FDCPA, the issue becomes whether ACCS' debt collection activities violated any of the FDCPA's consumer protection provisions. Plaintiffs contend that Defendants violated the FDCPA by (1) charging fees not permitted under California law, (2) sending letters on district attorney letterhead without disclosing the true identity of the sender, (3) making false threats of prosecution, and (4) failing to include required notices in communications to check writers.
The Ninth Circuit has found that "one action can give rise to multiple violations of the [FDCPA]." Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1177 (9th Cir.2006). The FDCPA provides that a debt collector may be held liable for failing to comply with any of its substantive provisions. 15 U.S.C. § 1692k(a). Thus, a court may enter summary judgment in a plaintiff's favor with regard to a defendant's liability under the FDCPA upon finding a single violation. See Schwarm, 552 F.Supp.2d at 1074. To determine damages, however, the court must consider "the frequency and persistence of noncompliance by the debt collector [and] the nature of such noncompliance." See § 1692k(b)(2).
When evaluating whether a debt collector violated the FDCPA, the court "focuses on the debt collector's actions, and whether an unsophisticated consumer would be harassed, misled or deceived by them." Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 771 (8th Cir.2001). "The FDCPA is a strict liability statute. Plaintiffs need not prove either that [d]efendants knew that their debt collection practices violated the law or that they intended to violate the law." Irwin v. Mascott, 112 F.Supp.2d 937, 963 (N.D.Cal. 2000). "Plaintiffs are not required to prove that consumers suffered any actual damages, in order to prove [d]efendants' liability for FDCPA violations." Id.
In the Ninth Circuit, whether a debt collector's communication violates the FDCPA "depends on whether it is likely to deceive or mislead a hypothetical least sophisticated debtor." Terran v. Kaplan, 109 F.3d 1428, 1431 (9th Cir.1997) (internal quotations omitted). "The objective least sophisticated debtor standard is lower than simply examining whether particular language would deceive or mislead a reasonable debtor." Id. at 1431-32 (internal quotation omitted). "Whether a communication would `confuse a least sophisticated debtor,' thereby violating the FDCPA, is a question of law." Schwarm, 552 F.Supp.2d at 1074 (quoting Terran, 109 F.3d at 1432).
Plaintiffs contend that collection letters that ACCS sent to check writers demanded fees not authorized by California law. (Plaintiffs' Motion at 18-21.)
The FDCPA provides that "[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt." 15 U.S.C § 1692f. The statute further specifies that it is a violation to collect "any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law." Id. § 1692f(1). Pursuant to § 1692f(1), "the collection of any amount over the face amount of a dishonored check is prohibited unless the excess amount is expressly authorized by the agreement creating the debt or permitted by law." Irwin v. Mascott, 96 F.Supp.2d 968, 980 (N.D.Cal.1999). "The burden of proving a statutory exception falls on the party seeking to reap the benefit of the exception." Id.; see also Schwarm, 552 F.Supp.2d at 1080 ("To establish that a particular fee does not violate § 1692f(1), the debt collector must identify a state law that authorizes the fee.").
During the class period, California's Bad Check Diversion Act ("BCDA") provided that a district attorney, or a private company contracting with the district attorney, could collect two fees: (1) a processing fee not to exceed $35 for each bad check, and (2) actual bank charges not exceeding $10, which must be paid to the victim. See Cal.Penal Code § 1001.65.
Accordingly, the Court finds that Defendants Mealing and Hasney, through their material participation in ACCS' debt collection activities, violated the FDCPA when they sought from Plaintiffs and class members program fees that were not permitted by law.
Plaintiffs contend that the letters ACCS sent to check writers violated the FDCPA by failing to identify ACCS as the sender. (Plaintiffs' Motion at 22-23.)
The FDCPA provides that "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of
Here, it is undisputed that the Official Notices that ACCS sent to check collectors were on district attorney letterhead, were signed by a criminal investigator from the Santa Clara County District Attorney's Office, and listed the Santa Clara County District Attorney Bad Check Restitution Program in the address for remission of payments.
Since on their face, the Official Notices do not disclose the identity of the actual sender, and create the impression that they were sent directly from the district attorney's office rather than from a private company, the Court finds that ACCS and those individuals who materially participated in its check collection operations violated the FDCPA.
Plaintiffs contend that ACCS' check-collection letters threatened arrest and prosecution where no individual assessment had been made as to whether that threat would actually be carried out. (Plaintiffs' Motion at 23-25.)
The FDCPA provides that it is a violation to represent or imply that "nonpayment of any debt will result in the arrest or imprisonment of any person ... unless such action is lawful and the debt collector or creditor intends to take such action." A statement in a debt collection letter may constitute a threat to take legal action if it is "calculated to intimidate the least sophisticated consumer into believing that legal action against her is imminent" and "that the debtor's only options are either payment or being sued." Irwin, 112 F.Supp.2d at 951-52. "A false threat to take action may be established by showing that no assessment has been made as to whether the threat will be carried out." Id. at 952.
Here, the Official Notice letter sent to check writers states:
Another notice letter sent to check writers states, "Due to your failure to complete the requirements of the District Attorney's Bad Check Restitution Program as specified in previous notices, we are now initiating formal prosecution proceedings against you. Criminal charges of PC 476a, `Passing a Worthless Check,' are being prepared for review by a deputy prosecutor." (SAC, Exs. 14-19.)
The Court finds that an unsophisticated recipient of either of the above-quoted letters would likely conclude that failure to pay the amount requested in the letter would result in criminal prosecution. Thus, the issue becomes whether ACCS had the intent or legal ability to prosecute the individuals to whom they sent the letters. Defendant Mealing admits that "ACCS had no control over which cases would have been prosecuted." (Mealing Opp'n Decl. ¶ 46.) Defendants present no evidence, however, that any individual assessment of whether the district attorney would prosecute a given check-writer occurred prior to sending the Official Notice letter. Defendants' contend that ACCS referred thousands of cases to the district attorney for prosecution during the class period. (Defendants' Opposition at 9.) Even if true, however, the total number of prosecution referrals standing alone does not show that ACCS individually assessed each case before threatening prosecution. The Court's concern lies with those recipients of the Official Notice who were not referred for prosecution. Since ACCS' letters would likely lead an unsophisticated consumer to believe that failure to participate in the Bad Check Diversion Program would result in prosecution, and there is no evidence that the district attorney actually intended to prosecute each letter recipient, the Court finds that ACCS and those individuals who materially participated in its check collection operations violated the FDCPA.
Plaintiffs contend that ACCS did not include any FDCPA-mandated statements in its letters to check writers. (Plaintiffs' Motion at 25-26.)
The FDCPA provides that it is a violation to "fail[ ] to disclose in the initial written communication with the consumer... that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector." 15 U.S.C. § 1692e(11). The FDCPA further provides:
15 U.S.C. § 1692g(a): see also Terran, 109 F.3d at 1430.
Here, it is undisputed that none of the letters that ACCS sent to check writers disclosed any of the required information outlined above.
Since on their face, ACCS' written communications with check writers did not contain the statutorily-required disclosures, the Court finds that ACCS and those individuals who materially participated in its check collection operations violated the FDCPA.
Accordingly, the Court GRANTS Plaintiffs' Motion for Summary Judgment and DENIES Defendants' Motion for Summary Judgment as to Defendant Mealing's and Defendant Hasney's liability in relation to Plaintiffs' Fourth Claim for Relief for violation of the FDCPA.
Plaintiffs contend that Defendants violated class members' privacy rights protected under the California Constitution by gaining unauthorized access to check writers' bank records. (Plaintiffs' Motion at 26-27.) Defendants respond that (1) ACCS was authorized to access bank records on behalf of the district attorney, and (2) neither Defendant Mealing nor Defendant Hasney ever accessed Plaintiffs' bank records and never instructed anyone else to. (Defendants' Opposition at 17.)
The California Constitution, article 1, section 1 provides: "All people are by nature free and independent and have inalienable rights. Among these are ... pursuing and obtaining ... privacy." The right of privacy under the California Constitution "extends to one's confidential financial affairs." Valley Bank of Nevada v. Superior Court, 15 Cal.3d 652, 656, 125 Cal.Rptr. 553, 542 P.2d 977 (Cal.1975): see also Molski v. Franklin, 222 F.R.D. 433, 438 (S.D.Cal.2004). "[T]here is a right to privacy in confidential customer information whatever form it takes, whether that form be tax returns, checks, statements, or other account information." Fortunato v.
Pursuant to Cal. Gov't Code § 7470(a), an agent of a state or local agency may, "in connection with a civil or criminal investigation of a customer, ... request or receive copies of, or the information contained in, the financial records of any customer from a financial institution" only in one of four specified circumstances: (1) the customer "has authorized disclosure," (2) the "financial records are disclosed in response to an administrative subpoena or summons," (3) the "financial records are disclosed in response to a search warrant," and (4) the "financial records are disclosed in response to a judicial subpoena or subpoena duces tecum."
Cal. Gov't Code § 7480(b) provides:
Here, in support of its contention that ACCS violated check writers' privacy rights, Plaintiffs provide only one piece of evidence: an employee write-up of a sales call with the Los Angeles District Attorney dated June 6, 2003 stating that ACCS reviews 900 bank records per month but only refers 11 cases per month for prosecution. (Sales Call Summary, Plaintiffs' Motion, Ex. 29.)
The Court finds that Plaintiffs have provided no evidence that ACCS requested or reviewed Plaintiffs' bank statements. The sales call write-up only purports to describe ACCS' activities in Los Angeles County. Since ACCS' contracts are with local district attorneys, ACCS' operations in Los Angeles may differ substantially from those in other parts of the state. It is undisputed that all Plaintiffs reside either in San Mateo County, Santa Clara County, or Petaluma, California. (See SAC ¶¶ 28, 43, 49, 54, 63.) Thus, there is no evidence that ACCS' activities in Los Angeles would have any impact on Plaintiffs.
In the absence of any evidence that Plaintiffs suffered a constitutional deprivation, the Court DENIES Plaintiffs' Motion for Summary Judgment as to Plaintiffs' Third Claim for Relief for violation of the California Constitution.
Plaintiffs contend that they are entitled to restitution and injunctive relief for Defendants' alleged unlawful and unfair check collection practices pursuant to the California Unfair Competition Law ("UCL"). (Plaintiffs' Motion at 27-29.) Defendants respond that injunctive relief is not warranted because Defendants Mealing and Hasney sold ACCS in November 2004 and have not been involved in the company since. (Defendants' Opposition at 17.)
California's UCL statute prohibits unfair competition by means of unlawful, unfair or fraudulent business practices. In re Pomona Valley Med. Group, 476 F.3d 665, 674 (9th Cir.2007); Cal. Bus. & Prof.Code §§ 17200 et seq. "Because Business and Professions Code section 17200 is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices that are unlawful, or unfair, or fraudulent." AICCO, Inc. v. Ins. Co. of North Amer., 90 Cal.App.4th 579,
Here, the Court has found that Defendants Mealing and Hasney are liable for various FDCPA violations; this finding serves as predicate for violations of the UCL. Accordingly, the Court GRANTS Plaintiffs' Motion for Summary Judgment as to Plaintiffs' Fifth Claim for Relief for violation of Cal. Bus. & Prof.Code §§ 17200 et seq.
In light of Defendants' representation that Defendants Mealing and Hasney are no longer associated with ACCS and have no intention of reentering the check collection business, and the dearth of evidence to the contrary, the Court finds that injunctive relief is unnecessary at this time. See Sun Microsystems v. Microsoft Corp., 188 F.3d 1115, 1123 (9th Cir.1999) ("Under California law, a plaintiff cannot receive an injunction for past conduct unless he shows that the conduct will probably recur.").
Plaintiffs contend that they are entitled to actual damages under the FDCPA and restitution under the UCL. (Plaintiffs' Motion at 29-30.) Plaintiffs further contend that Plaintiffs del Campo, Medina, and Johnston are each entitled to the maximum statutory award permitted by the FDCPA. (Id.)
Plaintiffs present evidence that during the class period, ACCS collected a total of $47,497,386.50 in fees, including $25,763,793.44 in "program" or "class" fees.
The Court GRANTS in part and DNIES in part the parties' Cross-Motions for Summary Judgment as follows:
On
On March 12, 2010, Plaintiffs filed Objections to Non-Party Declarations and Documents filed by Defendants in Opposition to Plaintiffs' Motion for Summary Judgment and Injunctive Relief. (hereafter, "Objections Re Documents," Docket Item No. 862.) In addition to raising additional objections to several of the witness declarations discussed in footnote 5, Plaintiffs seek to exclude multiple documents submitted in opposition to Plaintiffs' Motion, most of which are letters from various state attorney general offices offering informal legal opinions as to the propriety of bad check diversion programs under the laws of those respective states. The Court does not rely on any of these letters or other documents in resolving the present Motions, thus the Court OVERRULES as moot Plaintiffs' Objections Re Documents.
On March 1, 2010, Plaintiffs filed Objections to Declaration of George Kennedy, Dated March 3, 2006 in Support of Opposition to Defendants' Motions for Summary Judgment and to Affidavit of Stephen Gibbons, Dated July 13, 2007 in Support of Opposition to Defendants' Motions for Summary Judgment. (Docket Item Nos. 842, 843.) Since the Court does not rely on either in resolving the present Motions, the Court OVERRULES as moot Plaintiffs' Objections.
On March 1, 2010, Defendants filed Objections to Plaintiffs' Evidence. (hereafter, "Defendants' Objections," Docket Item No. 836.) Defendants object to the Declaration of Paul Arons on the ground, inter alia, that it fails to properly authenticate the attached documents and constitutes inadmissible hearsay. (Id. ¶¶ 4-69.) Defendants do not dispute that all of the attached documents were provided to Plaintiffs by Defendant ACCS during the course of discovery. (See Declaration of Paul Arons in Support of Plaintiffs' Motion for Summary Judgment and Injunction Against Don Mealing, Lynn Hasney and Inc. Fundamentals, hereafter, "Arons Decl.," Docket Item No. 818.) Although "documents do not automatically become a part of the record simply because they are the product of discovery," here, Plaintiffs entered the documents into the summary judgment record and attested to their authenticity, in contrast to Hoffman v. Applicators Sales and Service, Inc., the case relied on by Defendants. 439 F.3d 9, 15 (1st Cir.2006). Since Defendants do not specify any reason to doubt the authenticity of documents that they themselves produced in discovery, the Court finds the documents properly authenticated under Fed.R.Evid. 901. Furthermore, the Court does not rely on any of the challenged documents for the truth of their contents. Accordingly, the Court OVERRULES Defendants' Objections with regard to the Declaration of Paul Arons and related exhibits.
Finally, Defendants object to multiple documents under the category "Appendix 1." (Id. ¶¶ 70-96.) Defendants seek to exclude documents relating to contracts with several California counties. Since the Court does not rely on any of these documents in resolving the present Motions, Defendants' Objections with respect to those documents are OVERULED as moot.
